U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annie F.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. Appeal No. 0120171794 Agency No. 17-00263-00444 DECISION On April 22, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 28, 2017, dismissing her 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., 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 was employed in succession by Staffing Firm 1 (October 2006 - June 2015), Staffing Firm 2 (February 2016 - May 2016 - a subcontractor of Staffing Firm 3), and Staffing Firm 3 (May 2016 - November 2016) serving the Agency as a Support Technician at the Agency's Marine Corps Recruit Depot in Parris Island, South Carolina. The Marine Corps Recruit Depots, Parris Island and San Diego, are one of five subordinate commands of the Training and Education Command (TECOM). TECOM develops, coordinates, resources, executes, and evaluates training and education concepts, policies, and programs to ensure Marines are prepared for operational environments. TECOM G-6 serves as the primary advisor and coordinator for Marine Corps Recruit Depots Information Technology (IT), supporting training and education. Among other things, G-6 oversees resourcing of the TECOM command and control systems, to include servers, desktop and laptop computers, and other general-service IT for TECOM Headquarters, subordinate commands, and staff, as well as technical IT support. On February 23, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her based on her sex (female) and age (54) when she was harassed from December 2008 into November 2016, and was terminated on November 30, 2016. Complainant alleged three events/examples of harassment from December 2008 to June 2015, and around twenty from April 2016 into November 2016. She alleged the harassment was perpetrated by three Agency G-6 IT managers located on Parris Island - S1, who supervised Complainant's "customer" (an Agency Asset Manager) on Parris Island; S2 - to whom S1 reported, and S3, who oversaw all activities within G-6 on Parris Island. The Agency dismissed the complaint for failure to state a claim. Applying common law, it reasoned that Complainant was not an employee of the Agency. The instant appeal followed. Complainant argues that throughout the time she served the Agency it had sufficient control over her employment to be deemed her joint employer. In opposition to the appeal, the Agency writes that it is undisputed Complainant was employed by Staffing Firm 3 and was not jointly employed by the Agency. 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)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. 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, in an April 15, 2016 email copied to S1, S2 wrote that Complainant receives her daily direction from the Asset Manager (an Agency employee). In her writings on appeal, Complainant corroborates this, and adds that the same was true with her prior customer, an Agency Contract Technical Representative. Complainant writes that her job was to augment, in succession, the Contract Technical Representative and the Asset Manager. In the above email, S2 wrote that that starting on April 18, 2016, Complainant would receive her daily direction from S1. On April 11, 2016, S1 assigned Complainant the task of attending mandatory daily meetings to give status updates, albeit he suspended the meetings after April 18, 2016. Complainant attended meetings. Complainant's position was funded by TECOM, not Parris Island. In a statement submitted by the Agency in opposition to her appeal, S2 writes Complainant received her assignments from a contract administrator within TECOM located in Quantico, Virginia. He states TECOM G-6, in Quantico, Virginia supervises the completion of Complainant's tasks through monthly reporting, she was not supervised and did not take direction from an Agency supervisor, was not integrated into the Parris Island G-6 workforce, and performed only those tasks approved by the contract administrator in Virginia as being within her contract scope of duties. Complainant wrote that she sent monthly reports to TECOM, and her supervisors are there. At times, she declined assignments by S1 on the ground they were outside her contract scope of work, and was backed up by Staffing Firm 3. Examples are S1 in May 2016, assigning Complainant the task of providing weekly updates on her completed work, physically moving printers, and in June 2016, S1 assigning Complainant to purchase high end workstations with specialized software. We find the weight of the evidence is that the Agency supervised Complainant in the performance of her duties, albeit not exclusively. In April 2016, S1 assigned Complainant to another building. While Complainant complained to Staffing Firm 3 and they were sympathetic, the move went forward. In June 2016, passing along the directive of S1, the Agency Asset Manager advised Complainant her schedule of 7:30 AM to 4 PM with 1/2 for lunch was no longer in effect, and instead she was required to work hours like 7 AM to 4 PM or 7:30 AM to 4:30 PM with two 15 minute breaks and a 1/2 for lunch. In June 2016, the Asset Manager instructed Complainant and other contractors to modify their schedules to stay until 4:30 on one day because G-6 wanted personnel on deck to greet the "CG." This shows the Agency had at least some control over Complainant's schedule, and controlled her work location. Complainant worked on Agency premises, and in opposition to her appeal the Agency concedes the laptop she used was provided by the Agency. Further, she served the Agency for years. In the statement submitted with the Agency's opposition to Complainant's appeal, S2 wrote that when Parris Island said they no longer required Complainant's services, Staffing Firm 3 moved her position to Camp Lejeune in North Carolina (about a five-hour drive away). Complainant wrote in her complaint that because of the actions of local Agency (Parris Island) management, her staffing firm position was relocated, leaving her unemployed. On appeal, Complainant writes that she was informed by Staffing Firm 3 that her position was being relocated because of the Agency's treatment of her and the Agency said it did not need the position. After the position was relocated, Complainant became unemployed. While we are not making any merit findings based on the record currently before us, for purposes of whether Complainant's complaint states a claim, we find all this shows that the Agency had input into whether Complainant's employment continued. The Agency exercised and had the right to exercise sufficient control over Complainant's employment to be deemed her joint employer.3 Accordingly, the FAD is REVERSED.4 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 (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 September 21, 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 While the information in the record on Agency control when Complainant was employed by Staffing Firms 1 and 2 is not well developed, there is no indication in the record that it was different than when she was employed with Staffing Firm 3. 4 While in opposition to Complainant's appeal the Agency argues that all incidents that occurred prior to Complainant's tenure with Staffing Firm 3 were untimely counseled, it did not dismiss these incidents for being untimely in its FAD. Accordingly, we do not address this argument. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171794 2 0120171794