U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eve E.1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Appeal No. 0120162250 Agency No. 2016-DPAA-028 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 20, 2016, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as an Information Assurance Engineer at its Defense POW/MIA Accounting Agency, Information Technology Division, located in the Hickam Field Joint Base Pearl-Harbor in Honolulu, Hawaii. On April 7, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (African-American), sex (female), age (60), and reprisal for prior protected EEO activity when: 1. At times from mid-October 2015 to January 7, 2016, Agency management's reactions, feedback, and assessments of her performance on various projects was negative, occasionally in front of others and some of which was communicated to her staffing firm, the Agency sometimes disregarded her guidance, and she was subjected to some slights. 2. Effective January 25, 2016, her service to the Agency was cut off, and in early February 2016, her staffing firm offered her two other positions at significantly lower pay - one of which was outside her field and the other for a term of four to six months. 3. In late January 2016, an attorney retained by her staffing firm investigated her equal employment opportunity (EEO) claims by interviewing Agency staff who provided negative information, and because of her complaints against government employees on March 21, 2016, she was terminated by her staffing firm.2 Complainant started her employment with the staffing firm on September 21, 2015, which is when she began serving the Agency. On January 11, 2016, Complainant's staffing firm received notice of a charge from the EEOC which she filed against the staffing firm. The staffing firm retained a lawyer to investigate the matter. On January 21, 2016, Complainant notified the attorney that she was refusing to meet with her. On January 22, 2016, the staffing firm informed Complainant in writing that in order to take prompt action and remove her from an alleged discriminatory work situation during the pendency its investigation, she was to stop reporting to the Agency effective January 25, 2016, with the option of reporting to the staffing firm or being placed on administrative leave. Complainant, on a temporary call-in basis, did some work for the staffing firm. According to Complainant, during the week of January 25, 2016, the attorney retained by the staffing firm interviewed a number of Agency employees, and concluded that there was no discrimination. Instead, the attorney concluded that there were personality differences at issue. Complainant wrote that "it was stated that I would be the cause of [the staffing firm] losing its contract with the government. As a direct result, [the staffing firm] informed me that I could never return to my position as an [Information Assurance] Engineer." In early February 2016, the staffing firm offered Complainant two positions. Complainant rejected the offers. She explained that both were at significantly lower pay, and one (Office Assistant) was not in her profession and the other was for a term of four to six months. Complainant responded that she wanted to continue serving the Agency as an Engineer. On March 21, 2016, the staffing firm terminated Complainant in writing on the ground that she was not employed in a position. On appeal, Complainant argues that the Agency had sufficient control over her position to be deemed her joint employer. In opposition to the appeal the Agency argues that Complainant was an employee of the staffing firm, not the Agency.3 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 some factors point to a joint employment relationship - the weight of the record shows that Agency staff gave Complainant assignments, reviewed and gave her feedback on her performance, had input into her staffing firm performance appraisal, Complainant worked on Agency premises using Agency equipment, and the Agency task order for the staffing firm specified working hours. On the other hand, there is no evidence in the record that the Agency was involved in Complainant being hired by the staffing firm, and the staffing firm paid Complainant and provided her benefits,. Far more significant is our assessment of Complainant's complaint. While she complained about the Agency's treatment of her regarding her performance and some alleged slights, a fair reading of her complaint shows it is mostly about her service to the Agency being cut off and her termination. After the staffing firm was notified by the EEOC of Complainant's charge against it, the staffing firm retained an attorney to investigate the matter. Complainant refused to meet with the attorney, and the staffing firm then made the decision to take prompt action by removing her from the alleged discriminatory work situation at the Agency during the pendency of its investigation. There is no indication that anyone from the Agency was involved in this decision. The staffing firm gave Complainant the option of reporting to the staffing firm or being placed on administrative leave, and Complainant, on a temporary call in basis, continued to do some work for the staffing firm. According to Complainant, during the week of January 25, 2016, the attorney retained by the staffing firm interviewed a number of Agency employees, and concluded that there was no discrimination - instead personality differences. Shortly thereafter, the staffing firm advised Complainant that she would not return to serving the Agency, and offered her two alternative positions, both of which she rejected. On March 21, 2016, the staffing firm terminated Complainant in writing on the ground that she was not employed in a position. We find that the Agency did not have de facto power to terminate Complainant, as evidenced by the staffing firm continuing to employ her and offering her two alternative positions. This is especially significant since her complaint is mostly about her service to the Agency being cut off and her termination. Cf. Pictsch v. Department of Health and Human Services, EEOC Appeal No. 0120090933 (June 3, 2009) (agency's power to terminate individual's services was tantamount to removal power where the contractor engaged the individual solely to provide services to the Agency, and once the Agency terminated the individual's services the contractor also cut off its relationship with the individual); Murphy v. Complainant, EEOC Appeal No. 0120132014 (Sep. 17, 2013) (majority of control factors pointed to joint employment. While the agency decided to cut off the complainant's services, the staffing firm continued to employ him at a different location. A significant factor in determining whether an Agency is an employer is whether it has the power to terminate an employee. This is especially true since complainant's claim regarded the termination of his services to the agency); Complainant v. Nuclear Regulatory Commission (Jan. 28, 2015) (some control factors pointed to joint employment. After the agency notified the staffing firm of an altercation between complainant and a co-worker and demanded that something be done to quell the situation, the staffing firm suggested that the complainant be terminated and the agency asked that another resolution be found. It was significant that the staffing firm wrote letters indicating that it suggested the demotion to the agency and carried it out while he was still serving there after it conducted its own fact-finding, and later decided to reassign complainant from serving the agency as a Working Forman to other client(s) serving in the lower level position of Installer/Mover. The agency expressed disappointment when complainant's services to it were cut off. We found all this indicated the staffing firm retained full power over the complainant's employment, and the agency was not a joint employer). We find these cases are similar to the situation presented by Complainant's appeal, and we similarly conclude that the Agency did not jointly employ Complainant. Accordingly, the FAD dismissing the complaint in this matter is AFFIRMED. 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 November 22, 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 The Agency also defined an allegation strictly regarding an internal communication within the staffing firm. As this did not regard the Agency, we have not listed this allegation. 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 0120162250 2 0120162250