U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Liz M.,1 Complainant, v. Dana J. Boente, Acting Attorney General, Department of Justice, Agency. Appeal Nos. 0120162835 and 0120170199 Agency Nos. USM201600360 and USA201600705 DECISION Complainant filed timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from two Agency final decisions, dated August 31, 2016 and September 23, 2016, dismissing two formal complaints alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. As the two complaints concern the same underlying facts, we exercise our discretion to consolidate this matter for a single decision. See EEOC Regulation 29 C.F.R. § 1614.606. BACKGROUND During the period at issue, Complainant was placed by a contracting security company, Inter-Con Security Systems Inc. ("Inter-Con"), as a Lead Special Security Officer at the U.S. Attorney's Office (USAO) for the Southern District of New York. Complainant had been in this position for about twelve years. As a Special Security Officer, Complainant was deputized by the U.S. Marshal's Service (USMS) to act as a law enforcement officer at the USAO with arrest powers and the authority to carry firearms. In July 2015, Complainant had a kidney transplant and went on medical leave. Sometime in September 2015, Complainant's physician cleared her to return to work with no medical restrictions. Medical documentation to that effect was submitted to Inter-Con. Inter-Con forwarded the medical documentation to the Agency for a medical clearance determination. Medical qualifications for Special Security Officers with USAO are determined by medical personnel at the Department of Health and Human Services, Federal Occupational Health (FOH). On December 10, 2015, FOH determined that Complainant was not medically qualified to return to work. On or about December 22, 2015, Inter-Con terminated Complainant's employment because she was not medically cleared to return to her position. Appeal No. 0120162835 Agency No. USM201600360 (hereinafter referred to as "Complaint 1") On March 16, 2016, Complainant filed a formal complaint alleging that USMS subjected her to discrimination on the basis of disability when: 1. on December 10, 2015, Complainant was medically disqualified and removed from performing services as a Special Security Officer under the USMS contract; and, 2. on December 22, 2015, based on the actions of USMS, Complainant was terminated from her employment with Inter-Con. On August 31, 2016, the Agency issued its final decision. The Agency determined that USMS has a large contract with Inter-Con that also authorizes other agencies, such as USAO, to issue "task orders" under the main contract. USMS argued that USAO was therefore responsible for the contract oversight and funding of the Special Security Officer position. USMS determined that it took "no role in hiring, managing, medically qualifying, or terminating SSOs [Special Security Officers] for work in [USAO]." It argued that the only function USMS performed was "to provide special deputation law enforcement authority to the SSOs to perform law enforcement duties for [USAO]." Therefore, USMS dismissed Complaint 1, pursuant to 29 C.F.R. 1614.107(a)(1), finding that Complainant was not an employee or joint employee of USMS. The instant appeal followed. Appeal No. 0120170199 Agency No. USA201600705(hereinafter referred to as "Complaint 2") On July 6, 2016, Complainant filed a formal complaint alleging that USAO subjected her to discrimination on the basis of disability when she was terminated from her employment as a Special Security Officer effective December 22, 2015. On September 23, 2016, USAO issued a decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was not a federal employee, but instead employed by Inter-Con. The Agency determined that it did not exercise the requisite means and control over Complainant's position to qualify as her employer, or as a joint employer. The instant appeal followed. ANALYSIS AND FINDINGS As an initial matter, regardless of which sub-component is alleged by Complainant to have been responsible for the denial of her medical clearance resulting in her subsequent termination, we find that Complainant is alleging that the Department of Justice (through one or both of its sub-components) is her joint employer for the purpose of using the 29 C.F.R. Part 1614 complaint process. Here, it is undisputed that Inter-Con terminated Complainant solely because she was not medically cleared to return to work, apparently by FOH, an agent of the Department of Justice tasked with providing medical clearance services. Complainant essentially alleges that the two Department of Justice sub-components, acting either individually or in concert, discriminated against her based on her disability (kidney disease) when she was denied a medical clearance to return to her Special Security Officer position, resulting in her termination. The matter before us is whether the Department of Justice properly dismissed Complainant's complaints against its two sub-components 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)2; 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. 313, 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, 763 F.2d 773, 781 (6th Cir. 1935); see also Ma, EEOC Appeal Nos. 01962339 & 01962390. 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). 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). Here, the record shows that Complainant worked at the USAO as a Special Security Officer for twelve years at its facility in New York. In this position, she was deputized by the USMS to serve as a law enforcement official. She was hired by Inter-Con, directly supervised by its personnel, including the provision of performance appraisals, and received her pay and benefits from Inter-Con. 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. Complete agency control is not required - 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). 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, it is undisputed that Complainant is alleging that it was the actions of the Department of Justice, through its sub-components and their agent, which resulted in her termination from employment. She asserts that the Department of Justice, and not Inter-Con, had the sole authority to provide her with a medical clearance to return to work. When she was denied that clearance, her termination followed. EEOC has found that 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. 23, 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). As the essence of this complaint concerns the denial of the medical clearance, a decision solely made by the Department of Justice, we find that, based on the legal standards and criteria set forth in our previous decisions and guidance, the Department of Justice, through its sub-components and agent, possessed sufficient control over Complainant's position to qualify as her joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process in this matter. CONCLUSION Accordingly, the final decisions dismissing the formal complaints are REVERSED and the matter is REMANDED to the Department of Justice for further processing pursuant to the following ORDER. ORDER The Department of Justice3 is ORDERED to process the remanded claims, now consolidated for processing together, in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to 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 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 tile 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. Carlton M. Hadden, Director Office of Federal Operations February 2, 2017 __________________ 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 EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. 3 The Department of Justice, in processing the consolidated complaints, must address Complainant's claims against both the USAO and USMS. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162835 8 0120162835, 0120170199