U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shakia H.,1 Complainant, v. John O. Brennan, Director, Central Intelligence Agency, Agency. Appeal No. 0120161007 Agency No. 16-02 DECISION On January 8, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 17, 2015, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for Staffing Firm 1 serving the Agency as a Mail Courier in the Washington, DC metropolitan area. On October 22, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (African-American), color (Light), sex (female), disability, and reprisal for prior protected EEO activity under the Rehabilitation Act when: 1. On July 23, 2015, it removed her from her work-site location (cut off her service to the Agency); 2. On July 24, 2015, it failed to engage in the interactive process after she told the Agency about her medical condition; 3. On July 24, 2015, it removed her from her position after she submitted medical documentation; and 4. On July 28, 2015, Staffing Firm 2, which was scheduled to succeed Staffing Firm 1 on September 1, 2015, rescinded Complainant's offer of employment because the Agency removed her from the work site. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. EEOC Regulation 29 C.F.R. §1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. § 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment. The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)). The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following: 1. The employer has the right to control the manner and means by which the work is accomplished.2 2. The skill required to perform the work (lower skill points toward an employment relationship). 3. The source of the tools, materials and equipment used to perform the job. 4. The location of the work. 5. The duration of the relationship between the parties. 6. The employer has the right to assign additional projects to the worker. 7. The extent of the worker's discretion over when and how long to work. 8. The method of payment to the worker. 9. The worker's role in hiring and paying assistants. 10. The work is part of the regular business of the employer. 11. The employer is in business. 12. The employer provides the worker with benefits such as insurance, leave or workers' compensation. 13. The worker is considered an employee of the employer for tax purposes. Id. This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov). Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997)(available at www.eeoc.gov.), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers. Similar to the analysis set forth above, a determination of joint employment requires an assessment of the comparative amount and type of control the staffing firm and the agency each maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006). Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the criteria above, whether or not the individual is on the federal payroll. Id. For example, an agency may be considered an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues Question 2. Staffing Firm 1 had an active onsite supervisor (S1) - Complainant's first line supervisor - who was in charge of the day to day supervision of contract couriers, including giving out daily route assignments and other tasks, and ensuring there were contract couriers available to provide coverage. Factors 2 - 5, 9 - 11 Indicate that the Agency May Jointly Employ Complainant Serving as a mail courier does not require a high degree of skill (factor 2). Complainant worked on Agency premises using Agency equipment (factors 3, 4). She served the Agency starting in August 2013 (factor 5). There is no indication in the record that Complainant had any role in hiring and paying assistants (Factor 9). The Agency is in the business of government (factor 11). After S1 advised the Agency Contracting Officer's Technical Representative (COTR) that Complainant had performance/conduct problems that were affecting the operation of the mailroom, the COTR sent an email to him requesting that Staffing Firm 1 cut off her services to the Agency.3 Staffing Firm 1 immediately did so, did not assign her another position, and terminated her on August 31, 2015. Given these facts, we find that the Agency had joint or de facto power to terminate Complainant. Factors 1, 6 - 8, 10, 12 - 13 Indicate that the Agency does not Jointly Employ Complainant S1 assigned Complainant her routes without input from the Agency. S1 set the work hours of contract couriers. Complainant made her leave requests to S1, who handled them without input from the Agency. While employed, Complainant directed her request for reasonable accommodation to S1, who handled it without Agency input - after Complainant advised him that she was allergic to dogs, S1 ensured Complainant was not placed on a route which had dogs. Complainant contended that she served on some routes where she received direction from Agency employees. S1 explained that a lot of Agency staff couriers were eligible for early-out retirement so Complainant was assigned to at least one such route for training purposes to learn how to run route(s) normally assigned to Agency staff, and Complainant's role was essentially to just ride along with Agency staff (Factors 1, 6 & 7). Staffing Firm 1 handled Complainant's pay and compensation (Factors 8, 12, 13). Complainant served in an overt capacity - not undercover. While the Agency found that mail courier work was part of its regular business, we find this was not the mission of the Agency - which is to preempt threats and further United States national security objectives by collection intelligence, producing objective all-source analysis, and conducting effective covert action and safeguarding secrets that keep the United States safe. Regarding issue 4, the COTR stated that she did not speak to any other company about Complainant and in no way took any action, nor was aware of anyone else doing so, that would have affected any sort of follow-on employment she may have had with any contracting company. S1 stated Staffing Firm 1's contract was expiring on August 31, 2015, and he worked with a recruiter for new companies to help identify which personnel might be a good fit for moving to the new contract. S1 wrote that Complainant told him she had a contingent offer for a position with Staffing Firm 2, and he had several conversations with the recruiter about Complainant's behavioral and performance issues. Based on the legal standards and criteria set forth herein, we find that the Agency did not exercise sufficient control over Complainant's position to qualify as her employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 26, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Another factor is whether the employer can discharge the worker. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov). This factor is especially significant in termination cases. 3 According to the COTR, S1 advised that he wanted to remove Complainant, but because the Agency paid the contract between Staffing Firm 1 and the Agency, Staffing Firm 1 would want something in writing requesting that Complainant's service to the Agency be cut off. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161007 6 0120161007