U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120171565 Agency No. 4B-040-0003-17 DECISION Complainant filed an appeal with this Commission from an Agency decision, dated February 16, 2017, dismissing a formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Highway Contract Route Supplier transporting and delivering mail in the Agency's North New England District. Believing that he was subjected to unlawful discrimination, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, on January 26, 2017, Complainant filed a formal complaint based on sex, disability, and in retaliation for prior protected EEO activity. On February 16, 2017, the Agency issued a final decision. In its decision, the Agency framed the claims as follows: 1. On October 6, 2016, Complainant was notified that he was not rehired for the Contract Cleaner position at USM.2 2. On November 7, 2016, Complainant was temporarily denied access to the mail and Postal premises and subsequently, on January 17, 2017, he was permanently denied access to the mail and Postal premises. In its February 16, 2017 final decision, the Agency dismissed the formal complaint. The Agency reasoned that Complainant was a contractor, not an Agency employee, and therefore could not use the EEO process. After referencing the factors set forth in Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998), and reviewing the contract between the parties, the Agency noted that: Highway Contract Routes are awarded by solicitation and bid; Local Postal Officials oversee duties but have no right to terminate the contract; the contractor provides the vehicle; taxes and retirement benefits are the contractor's responsibility; and, the Agency does not provide sick leave or annual leave. Alternatively, the Agency dismissed the formal complaint as a collateral attack on Complainant's appeal to the Postal Service Board of Contract Appeals. According to the Agency, Complainant has filed an appeal with the HQ Surface Transportation Appeal Board. Further, it noted that the EEOC has no jurisdiction over Contract Disputes Act and Complainant should have raised his issues with the Board of Contract Appeals. ANALYSIS AND FINDINGS Employer/Employee Relationship The matter before us is whether the Agency properly dismissed the formal complaint for failure to state a claim on the basis that Complainant 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 § 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 a determination that the individual performs work pursuant to a contract between the federal government and an outside organization, and that 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. 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. 020131148 (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 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 American, 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. In the instant case, while the Agency referenced the various Ma factors and listed aspects of the contract it entered with Complainant, it failed to conduct a proper analysis prior to concluding that Complainant was not an employee. The Commission finds that a thorough analysis of the instant record reveals that the Agency exerted sufficient control over Complainant to be considered an employer. On appeal, Complainant contends he has worked for the Agency for over fourteen years3, performing the Agency's core function: the delivery of mail. Further, he argues that prior to his contract with the Agency he lacked any delivery experience and was provided initial and ongoing training by the Agency. Complainant contends that the Agency held him to the standards of a regular Agency employee. As noted in the Agency decision, Complainant provides the vehicle used for performing his deliveries. However, he also uses Agency equipment, including: scanners, hampers, mail trays, marker cards, forms and sorting cases. Additionally, the record reflects that Complainant visits Agency facilities many times a day. In fact, the Agency requires Complainant to abide by a detailed schedule that sets forth the precise time he should leave one Agency facility and arrive at the next. On appeal, Complainant also contends that the Agency has periodically assigned him additional tasks, beyond what is set forth in his contract. These assignments usually are clerk duties that occur at Agency facilities. Complainant states, and the Agency does not dispute, that he is monitored by the Agency through a GPS-type device. The Agency sets his schedule, including precise start and end times, as well as prohibiting delivery when they determine that weather or road conditions are too poor. The record shows that the Agency even instructs Complainant on the precise route he must follow in performing his job, turn by turn. In its decision, the Agency noted that while "Local Postal Officials are listed as 'Administrative Officials' and oversee duties performed by [Complainant]", they "have no right to terminate a contract." The record reflects otherwise. In claim (2), Complainant alleges he was discriminatorily denied access to the mail and Postal premises, which in essence resulted in the termination of his job. The record shows that these actions were all taken by the Agency. In correspondence dated February 28, 2017, from an Agency manager on Agency letterhead, Complainant was notified that it was "in the best interests of Postal Service" to permanently deny his access. Complainant was required to "return the Postal keys and ID badge to the Administrative Officials immediately." The core of Complainant's complaint concerns the Agency's decision to effectively remove him from his position. This control by the Agency indicates an employer/employee relationship. We acknowledge that some factors indicate Complainant is a contractor, rather than an employee. Complainant does not challenge the Agency's assertion that it does not provide Complainant with paid leave, retirement or health benefits, or pay taxes. However, after reviewing the instant record, we find that the facts before us support the conclusion that the Agency nevertheless exerts sufficient control over Complainant to be considered his employer for the purposes of the EEO process. Before contemplating the Agency's alternative grounds for dismissal, we note the inapplicability of the contractor/employee argument with respect to claim (1). In claim (1), Complainant was allegedly discriminated against when he was not rehired for the Contract Cleaner position. The record indicates that, separate and distinct from his position as a Highway Contract Route Supplies, Complainant had previously performed cleaning services at a post office. He was seeking to be re-hired for the position. Therefore, as an applicant, Complainant has standing to use the EEO process. Collateral Attack As noted above, the Agency also dismissed the formal complaint on the grounds that the matter raised therein was a collateral attack on Complainant's appeal to the Postal Service Board of Contract Appeals. An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). On appeal, Complainant's attorney acknowledges that Complainant has "contract claims," for which he has obtained separate counsel, that are not being pursued through the EEO complaint process. Complainant argues that the instant case simply alleges discrimination based on sex, disability and reprisal. Complainant indeed may also be pursuing contractual matters through another process. There is, however, no evidence to support the Agency's dismissal that the instant EEO complaint is an impermissible collateral attack on that process. The Agency has not provided any evidence of Complainant's purported filing with the Postal Service Board of Contract Appeals. There is no indication that the separate filing addresses allegations of discrimination. A fair reading of the instant complaint does not reflect an attack on another forum. Therefore, we find that the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). CONCLUSION The Agency's dismissal is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) 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 becomes final. 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 becomes final, 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 August 29, 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 We cannot discern from the record, the full term for the abbreviation "USM." 3 The record also contains references to as many as nineteen years and contractual documents than span at least six years. Therefore, even if we are unable to determine the precise length of time, the record establishes that Complainant and the Agency entered a long-term commitment indicative of an employer/employee relationship. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171565 8 0120171565