U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luvenia S.,1 Complainant, v. Dan Coats, Director, Office of the Director of National Intelligence, Agency. Appeal No. 0120170733 Agency No. 2017F001 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated November 28, 2016, dismissing a formal complaint alleging 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. BACKGROUND During the relevant time, Complainant worked for two companies which contracted with the Agency to provide administrative and technical support. First, in October 2012, Complainant was hired by General Dynamics Information Technology (GDIT) as a Human Resources Generalist. She was terminated approximately a year later, in September 2013. Second, in May 2015, Complainant was hired by TekMasters, a subcontractor of GDIT, as a Business Support Specialist. Complainant provided services to the Agency, under an Administrative and Technical Support Services (ANTSS) contract, until TekMasters terminated her employment in June 2016. Believing that she was subjected to unlawful discrimination, Complainant contacted an EEO Counselor on June 24, 2016. Informal efforts to resolve Complainant's concerns were unsuccessful. On October 11, 2016, Complainant filed a formal complaint based on race (African American), color (Black), sex (female), and reprisal. The Agency framed the claims as follows: 1. In September 2013, Complainant was terminated from a GDIT Human Resources Generalist position. 2. In May 2016, Complainant was subjected to harassment based on sex when [a named male employee] addressed her as "beautiful" as he walked by her, instead of using Complainant's given name. 3. On May 25, 2016, Complainant was subjected to harassment based on sex when [a named female employee] touched her on the shoulder. 4. On June 2, 2016, GDIT and TekMasters terminated Complainant's employment without any prior notice due to her race and in retaliation for prior protected EEO activity. On November 28, 2016, the Agency issued a final decision. The Agency dismissed the formal complaint in its entirety. First, the Agency dismissed claim (1) on the grounds of untimely EEO Counselor contact and on the alternative grounds of failure to state a claim. Specifically, the Agency determined that Complainant waited years after her removal to obtain EEO counseling. Next, the Agency dismissed claims (2) through (4) on the grounds that Complainant was not an Agency applicant or employee and therefore lack standing. Instead, the Agency determined that Complainant was an employee of private contractors (GDIT and TekMasters). Moreover, even assuming that Complainant was an employee, the Agency alternatively dismissed claims (2) and (3) for failure to state a claim. The Agency found that the alleged events identified in claims (2) and (3) - being referred to as "beautiful" and touched on the shoulder - were not sufficiently severe or pervasive to state a viable claim of discriminatory harassment. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Untimely Counselor Contact: Claim (1) EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. In claim (1), Complainant asserts that her September 2013 termination from GDIT was discriminatory. However, she waited almost three years before raising the matter with an Agency EEO counselor in June 2016. The Commission finds that Complainant should have reasonably suspected discrimination at the time of her removal, a discrete event. She has not provided sufficient justification for extending or tolling the forty-five day time limitation. Therefore, the dismissal of claim (1) was proper.2 Failure to State a Claim: Claims (2) - (4) The matter before us regarding these three claims is whether the Agency properly dismissed them for failure to state a claim on the grounds that Complainant was not an Agency 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 § 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment. 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, 20l6); 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 exercise 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, materials, 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-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. 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. In the instant case, it appears that Complainant performed her duties at an Agency facility, using Agency equipment. She also received assignments from a government supervisor. However, the record reflects that Complainant was hired by Tekmasters, which ensured not only that she was qualified for the position but also that she held the necessary security clearances. Tekmasters paid Complainant on a weekly basis, and withheld taxes. Tekmasters also provided her with health benefits and the opportunity to participate in a retirement plan. Complainant earned sick leave and annual leave with Tekmasters. If she was going to be absent, she notified the Project Manager, who is a Tekmsater employee. Evaluations of her performance were conducted by Tekmasters. Complainant was terminated based "upon [the] mutual agreement between GDIT and Tekmasters", due in part to her problematic communication with GDIT Program Managers. Moreover, Complainant's statement on appeal reflects that while her government supervisor "liked her work ethic", her claims of discrimination lie primarily with GDIT and Tekmasters. For example, she disputes GDIT's claim that she failed to respond to them. Complainant contends that Tekmasters "needed to be more involved" and allowed GDIT "to have the majority of the control." She challenges the actions taken by GDIT and Tekmasters, not the Agency. Therefore, based on the legal standards and criteria set forth in our previous decisions and guidance, we find that the Agency did not exercise sufficient control over Complainant's position to qualify as her joint employer for the purpose of the EEO process. CONCLUSION The Agency's final decision dismissing the formal complaint for the reasons discussed above 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 May 19, 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 In light of our disposition, we shall not consider the alternative grounds for dismissal of claim (1). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170733 6 0120170733