U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Spencer T.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120162010 Agency No. ARBRAGG14OCT03940 DECISION By facsimile on June 2, 2016, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's appeal, filed by and through his attorney, from a final Agency decision (FAD) dated March 14, 2016, which he represents he received on May 2, 2016, dismissing his 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. We deem the appeal to be timely.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked for Staffing Firm 2 serving the Agency as an Arabic Language Instructor at its Special Warfare Center and School, Center for Language & Culture, Central Asian and Middle Eastern Languages, at Fort Bragg in North Carolina, and sought to resume his work with the Agency through employment with Staffing Firm 3. On December 1, 2015, Complainant filed a formal complaint alleging that he was discriminated against based on his national origin (Egyptian), religion (Coptic Christian), and reprisal for his association with a co-worker who engaged in prior protected EEO activity when he learned, on July 2, 2014, that he was "suspended" from further service (meaning he would not be rehired) at the Agency. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee or applicant for employment with the Agency. Complainant wrote that he was serving at Fort Bragg as an instructor in August 2012, and the record contains an evaluation on him by Staffing Firm 1 for the period of November 13, 2012 to May 31, 2013, where he served at Fort Bragg as an instructor. Complainant worked for Staffing Firm 2 serving the Agency from March 10, 2014 through May 2, 2014 - the intended length of his service contract, replacing an instructor who left. Complainant contended that on his second day, the Agency Chair of the Central Asian and Middle Eastern Languages came into his class, reviewed his lesson plan and asked students about their new teacher. He contended that on April 2, 2014, his Staffing Firm 2 supervisor called him out of class and reprimanded him, saying the Agency Chair said he had no lesson plan, was sitting all the time, and his students were not interacting with each other (all of which Complainant denies), and if the Chair complained again he would be fired. According to Complainant, in a meeting with contractors, the Agency Chair said that if there were any complaints he would fire the instructor immediately. Complainant worked for Staffing Firm 2 serving the Agency on a language cycle which ended on July 14, 2014. The Agency Chair stated that the next language class started on July 21, 2014, and Staffing Firm 3 took over from Staffing Firm 2. Complainant needed to be hired by Staffing Firm 3 to continue serving the Agency as a contract instructor. Complainant contended that on July 2, 2014, another instructor sought to have Complainant replace him while he was gone. Complainant wrote that this instructor went to Supervisor 1, who told him that while she would like to hire Complainant, the Agency did not want him to work there again and had suspended him from renewed employment. Starting in July 2014, Supervisor 1 worked as a training manager for Staffing Firm 3. The Agency Chair, on the other hand, wrote that if Complainant was "suspended from Fort Bragg," this was done solely at the discretion of his staffing firm, and he played no role in the hiring of contract employees. The Agency Chief of the Language Division and an Agency Contracting Officer's Representative (COR) stated that Complainant's work was assigned by his Staffing Firm 2 supervisor, who worked onsite. Both stated Complainant submitted his leave requests to his staffing firm supervisor, who acted on them. They wrote that the Agency had no input or involvement in Complainant's individual performance evaluation. Both stated that any decisions related to Complainant's continued association with the Agency's Language Department were made by Staffing Firms 2 and 3, and the Agency's Language Department did not have any involvement with this. The Agency conceded that Complainant worked on Agency premises using Agency equipment and supplies - textbooks, workbooks, computer, TekPanel, and office supplies. In argument by and through his attorney, Complainant wrote as follows. He conceded that he was recruited by Staffing Firm 2. He represented that prior to this, he held contract positions serving the Agency at Fort Bragg with three other staffing firms. Complainant represented that in his first month of working for Staffing Firm 2, his classroom instruction was observed no less than three times by Agency employees. He contended that the only feedback he got on his performance was from the Agency Chair - once as recounted above which was relayed to him by his Staffing Firm 2 supervisor, and once a negative comment relayed to him by an Agency employee. Complainant represented that the Agency conducted teacher meetings. In December 2014, the Agency dismissed Complainant's complaint for failure to state a claim on the ground that he was not an employee or applicant for employment with the Agency. In EEOC Appeal No. 0120151245 (Dec. 3, 2015), we reversed, finding that there was insufficient information in the record to determine whether the Agency jointly employed Complainant or he was an applicant for joint employment. We ordered the Agency to gather additional information on whether the Agency had control over Complainant's employment, and in doing this to make a concerted effort to take statements from the Agency Chair, Complainant, Supervisor 1, and Complainant's Staffing Firm 2 supervisor. We ordered the Agency to then accept the complaint for investigation or issue a new FAD dismissing the complaint. On remand, the Agency obtained an email statement from Supervisor 1. The Agency asked Complainant's Staffing Firm 2 supervisor to provide a statement, but he did not do so. It did not obtain a statement from the Agency Chair. The Agency solicited a statement from Complainant, but he did not provide one. According to Complainant's attorney, Complainant did not do so because of his attorney's medical issues. On remand, Supervisor 1 wrote that when she returned to Fort Bragg, her supervisor told her that they could not put Complainant back in the classroom because he had been banned from Fort Bragg - he caused trouble with the military and they did not want him back on site. Supervisor 1 stated that when she supervised Complainant he was reliable and eager to learn. In response to the question of whether the Agency Chair provided input into Complainant's individual evaluation, Supervisor 1 wrote that while she did not know with regard to Complainant, she knew the Agency Chair's opinion of certain contractors, vendors and instructors could at times be harsh, and many times he voiced concerns about vendor selection of instructors and expressed he would rather see another person conducting the class. In response to the question of whether the Agency Chair ever told instructors that he would fire them immediately if there were any complaints about them, Supervisor 1 replied that according to the contract, the Agency Chair has no authority to hire, fire, or train contract instructors. She wrote that the Agency Chair works in collaboration with the management of each vendor who then takes action on behalf of their employee. In its decision made on remand, the Agency wrote that it began its relationship with Staffing Firm 2 in June 2011, and it continues. The Agency generally stated that Staffing Firm 2 has the right to control the manner and means by which work in accomplished, the government does not have the right to assign additional projects, the government cannot discharge a contract instructor, and while the Agency conducts quality assurance on the services provided by Staffing Firm 2, it does so based on the services the staffing firm provides, not based on the individual instructor. In response to the question of whether the Agency Chair told instructors that if there are any complaints he would fire the instructor immediately, the Agency wrote that the Chair do not have the authority to fire any Staffing Firm 2 employee immediately. The Agency stated that it identifies the days and hours students attend class, and Staffing Firm 2 is required to meet this requirement. On appeal, Complainant submits argument, but not a statement. In opposition to the appeal, the Agency argues that the FAD should be affirmed. It argues that Complainant was an employee of Staffing Firm 2, not the Agency.3 The Agency concedes that the Agency Chief and other Agency officials visited instruction areas to ensure Staffing Firm 2 and other staffing firms adequately performed under the terms of their respective contracts, but this was quality assurance observation of staffing firms, not individual instructors. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim on the basis that she was not its employee. 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 therewith. In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016), the Commission recently reaffirmed its long-standing position on "joint employers" and noted it is found in numerous sources. See, e.g., EEOC Compliance Manual Section 2, "Threshold Issues," Section 2-III(B)(1)(a)(iii)(b) (May 12, 2000) (Compliance Manual)4; EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997) (Enforcement Guidance), "Coverage Issues," Question 2; Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in this decision. Agencies often conclude that an individual is not an employee based solely on the fact that the individual performs work pursuant to a contract between the federal government and an outside organization and the outside organization, not the federal government, controls the pay and benefits of that individual. See, e.g., Helen G. v. Dep't of the Army, EEOC Appeal No. 0120150262 (Feb. 11, 2016); Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120151697 (Feb. 9, 2016). These elements are just two of the factors relevant to joint employment under the Commission's long-standing position and it is not at all surprising that they would be present when an individual working under a federal contract for a federal agency raises a complaint of discrimination. The term "joint employer" refers to two or more employers that each exercises sufficient control of an individual to qualify as the worker's employer. Compliance Manual, Section 2-III(B)(1)(a)(iii)(b). To determine whether the Agency has the right to exercise sufficient control, EEOC considers factors derived from common law principles of agency. See Enforcement Guidance, "Coverage Issues," at Question 2. EEOC considers, inter alia, the Agency's right to control when, where, and how the worker performs the job; the right to assign additional projects to the worker; whether the work is performed on Agency premises; whether the Agency provides the tools, material, and equipment to perform the job; the duration of the relationship between the Agency and the worker whether the Agency controls the worker's schedule; and whether the Agency can discharge the worker. EEOC Compliance Manual, Section 2-III(A)(1) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)); EEOC v. Skanska USA Bldg., Inc., 550 F.App'x 253, 256 (6th Cir. 2013) ("Entities are joint employers if they 'share or co-determine those matters governing essential terms and conditions of employment'") (quoting Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985); see also Ma, EEOC Appeal Nos. 01962389 & 01962390. The language of the contract between the agency and the staffing firm is not dispositive as to whether a joint-employment situation exists. In determining a worker's status, EEOC looks to what actually occurs in the workplace, even if it contradicts the language in the contract between the staffing firm and the agency. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (while contract between staffing firm and agency provided that contract personnel were employees of staffing firm under its administrative supervision and control, agency actually retained supervisory authority over the contract workers). On the factor of the right to control when, where, and how the worker performs the job and to assign additional projects, complete agency control is not required. Rather, the control may be partial or joint and still point to joint employment. Shorter v. Dep't of Homeland Sec., EEOC Appeal No. 0120131148 (June 11, 2013) (where both staffing firm and agency made assignments, this pointed to joint employment); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120143162 (May 20, 2015), request for reconsideration denied, EEOC Request No. 0520150430 (Mar. 11, 2016) (where staffing firm wrote and issued complainant's appraisal with input from agency, this pointed toward joint employment). Likewise, where both the agency and staffing firm provided tools, material, and equipment to perform the job, this pointed to joint employment. Elkin v. Dep't of the Army, EEOC Appeal No. 0120122211, 2012 WL 5818075 (Nov. 8, 2012). Similarly, where a staffing firm terminates a worker after an agency communicates it no longer wants the worker's services, this supports a finding that the agency has joint or de facto power to discharge the worker. See, e.g., Complainants v. Dep't of Justice, EEOC Appeal Nos. 0120141963 & 0120141762 (Jan. 28, 2015); see also Skanska USA Bldg., Inc., 550 Fed. App'x at 254, 256 (where defendant removed staffing firm's workers from job site without challenge from staffing firm, and after such removals staffing firm generally fired worker, this pointed to joint employment); Butler v. Drive Auto. Indus. of America, Inc., 793 F.3d 404, 414-15 (4th Cir. 2015). The EEOC considers an entity's right to control the terms and conditions of employment, whether or not it exercises that right, as relevant to joint employer status. Enforcement Guidance, "Coverage Issues," at Question 2, Example 5 (where an entity reserves the right to direct the means and manner of an individual's work, but does not generally exercise that right, the entity may still be found to be a joint employer). In assessing the right to control, EEOC does not consider any one factor to be decisive and emphasizes that it is not necessary to satisfy a majority of the factors. In particular, the fact that an individual performs work pursuant to a contract between the federal government and an outside organization and is paid and provided with benefits by that organization, on its own, is not enough to show that joint employment does not exist. Rather, the analysis is holistic; all the circumstances in the individual's relationship with the agency should be considered to determine if the agency should be deemed the worker's joint employer. Enforcement Guidance, "Coverage Issues," at Qs. 1 and 2. In sum, a federal agency will qualify as a joint employer of an individual if it has the requisite right to control the means and manner of the individual's work, regardless of whether the individual is paid by an outside organization or is on the federal payroll. See id., at Q. 2. Here, we find that the Agency had sufficient control over how Complainant performed his job to be his joint employer. Complainant worked on Agency premises using Agency equipment. He served the Agency as an instructor on and off since at least August 2012 for stints of at least about two to five months, a significant duration. The Agency had input into when he worked since it identifies the days and hours students attend class, and Staffing Firm 2 is required to meet this requirement. The Agency concedes that the Agency Chief and other Agency officials visited instruction areas to ensure Staffing Firm 2 adequately performed under the terms its contract, but contends this was quality assurance observation of the staffing firm, not individual instructors. But there can be no question that the performance of Staffing Firm 2 was based largely on the quality of their instructors. The Agency Chair wrote that if Complainant was "suspended from Fort Bragg," this was done solely at the discretion of his staffing firm, and he plays no role in the hiring of contract employees. In addition, the Agency Chief of the Language Division and an Agency COR stated that any decisions related to Complainant's continued association with the Agency's Language Department were made by Staffing Firms 2 and 3, and the Agency's Language Department did not have any involvement with this. However, while we are not making any findings on the merits of Complainant's discrimination claims, for purposes of determining whether Complainant's complaint states a claim, we note that Complainant specifically wrote that on March 11, 2014, the Agency Chair went into his class to get information on his teaching, and on April 2, 2014, his Staffing Firm 2 supervisor called him out of class and reprimanded him, saying the Agency Chair said he had no lesson plan, he was sitting all the time, and his students were not interacting with each other (all of which Complainant denies), and if the Chair complained again he would be fired. Complainant wrote that in a meeting with contractors, the Agency Chair said that if there were any complaints he would fire the instructor immediately. While the Agency denied that the Chair had the authority to fire a contract instructor immediately, the Chair did not deny making this remark. Further, Supervisor 1 wrote that the Chair's opinion of certain contractors, vendors and instructors could be harsh, and many times he voiced concerns about vendor selection of instructors and would rather see another person conducting the class. She wrote that the Agency Chair works in collaboration with the management of each vendor who then takes action on behalf of their employee - implying he has some de facto control over their employment. Supervisor 1 wrote that when she returned to Fort Bragg in May 2014, her supervisor told her that they could not put Complainant back in the classroom because he had been banned from Fort Bragg - he caused trouble with the military [the Agency] and they did not want him back on site. This is especially significant since Complainant's complaint regards the Agency declining to renew his employment. We find that the weight of the record shows that the Agency had the requisite right to control the means and manner of Complainant's work, and therefore his complaint states a claim upon which relief may be granted in the 29 C.F.R. Part 1614 EEO complaint process. Accordingly, the FAD dismissing the complaint is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 November 18, 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 While we received the facsimile one day beyond the 30 calendar day deadline, in the FAD under the heading "Section 1614.403 How to appeal," the Agency gave an address which is years out of date for filing an appeal with the EEOC. As Complainant may have timely filed his appeal by mail and we would not have received it, we deem his appeal to be timely. 3 It is undisputed that Complainant is not an independent contractor. 4 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162010 2 0120162010