U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kevin B.,1 Complainant, v. Rick Perry, Secretary, Department of Energy, Agency. Appeal No. 0120172243 Agency No. 17-0056-AL DECISION On June 15, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 17, 2017, dismissing his complaint of 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. BACKGROUND Complainant was employed to work at the Lawrence Livermore National Laboratory in California by the Lawrence Livermore National Security, LLC (hereinafter referred to as the staffing firm), first as a High Explosive Assembly Technician in its Engineering Directorate/Defense Technologies Engineering Division, second in its National Security Engineering Division after being involuntarily reassigned to a position there, and third, after being reassigned again, as a Mechanical Technical Technologist. The Laboratory is an Agency-owned and contractor-operated facility, managed and operated by the staffing firm, a limited liability company made up of the University of California, Bechtel National, Battelle, Babcock and Wilcox, and the Washington Division of URS Corporation, who have expertise in the Agency's nuclear weapons complex and more. The Agency determines the mission of the Laboratory and the staffing firm determines how best to carry out the research. The staffing firm employs about 7,200 people at the Laboratory. On April 26, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on disability (epilepsy) when: 1. on February 25, 2016 (making it permanent on June 2, 2016), the staffing firm suspended him from handling explosives because it believed he might drop an explosive causing a catastrophic event due to his epilepsy; and 2. involuntarily reassigning him on May 23, 2016. He also alleged he was discriminated against based on his disability, and reprisal for prior EEO activity (reporting to the staffing firm's Human Resources that his supervisor for his second and third jobs falsely accused him of negative things about his performance and sleeping at his desk in violation of an unidentified statute) 3. when he was terminated by the staffing firm in January 2017.2 The Agency dismissed the complaint for failure to state a claim. It reasoned that he was a contractor employee, not an employee of the Agency. The instant appeal followed. 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 he 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)3; 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 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, 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. The staffing firm managed and operated the Laboratory's facilities and infrastructure, and hired and compensated its workforce. Complainant stated that he was hired by the staffing firm, that the Agency did not have the right to task or assign him additional projects, that the staffing firm had direct control over his work performance, set his schedule and approved his leave. The EEO counselor wrote that Complainant said to her that he had not dealt with a single federal employee since his hiring. Complainant attributed all the acts of discrimination against him to people in the staffing firm. In his complaint, Complainant contended that the actions of the staffing firm were attributable to the Agency because the staffing firm was its agent. In its FAD, the Agency listed common law factors used to determine if it had sufficient control over Complainant's position to be deemed his common-law employer, and after applying them, found its control fell short. The instant appeal followed. Complainant argues that because the Agency benefitted from his work, it should be considered his employer. Pointing to parts of the contract between the Agency and the staffing firm, Complainant argues that the Agency exercises sufficient control over his position to qualify as his joint employer for purposes of the EEO process. Complainant references sections of the contract setting compensation parameters for non-exempt employees, e.g., requiring a percentage of increased pay of 7.5% for the "swing" shift and 15% for the "owl" shift, time and a half for emergency call ins outside the employees' regularly scheduled hours for a minimum of three hours, and special allowances, e.g., no uniform allowance unless the employee is required to wear one, and a maximum 25% differential for work in in remote geographical areas - isolation duty posts. Complainant also references contract sections limiting awards, i.e., limiting funding to 0.15% of the total salary base to fund awards programs, with costs exceeding this amount subject to approval by the Agency Contracting Officer; requiring that military leave be paid in accordance with Agency policy; when an employee's access authorization is suspended by the Agency or staffing firm permitting continuation of wages only where no position is available that the employee might reasonably be transferred and the Agency's Contracting Officer concurs in making payment; limiting leave payments to various percentages of salary for employees on professional research or teaching leave; setting forth parameters under which leave may be paid while an employee is awaiting the commencement of workers' compensation wage loss compensation benefits and while collecting them; where an employee is separated due to a reduction-in-force (RIF), requiring a severance payment equal to one week's pay for each year of continuous full-time employment) not to exceed 26 weeks of pay; for payments upon termination other than a RIF no use of sick leave beyond the termination date, and for separation caused by death requiring survivor benefits of a month (outside any life insurance). We find that the Agency did not have sufficient control, or right to control Complainant's position to be deemed his joint employer. As an initial matter, whether the staffing firm should be deemed an agent of the Agency or the Agency benefitted from Complainant's work is not relevant to determining if the Agency had sufficient control over Complainant's position to be deemed his joint employer. Here, Complainant worked in a facility owned by the Agency but managed and operated by the staffing firm, and he indicated that he has never dealt with anyone with the Agency. He was hired by the staffing firm, the Agency did not have the right to assign him additional projects, and he was terminated by the staffing firm with no alleged involvement by the Agency. Because the Laboratory was managed and operated by the staffing firm, for purposes of determining control Complainant was effectively working on staffing firm premises. Complainant's compensation, including accrual and use of leave, was taken care of by the staffing firm. While the contract between the Agency and the staffing firm set out some general parameters, which we have illustrated in terms of pay, use of some types of leave in certain situations, and upon RIF a formula for determining severance, given the above, we find that the Agency's control over Complainant's position was insufficient to be deemed his joint employer for the purpose of using the 29 C.F.R. Part 1614 EEO complaint process. The FAD is AFFIRMED. 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 (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 14, 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 staffing firm's Office of General Counsel suggested that Complainant was terminated for poor performance such as taking too much time to perform simple tasks. In defining Complainant's complaint, the Agency did not capture issues 1 and 2. After reviewing the claims Complainant raised in intake and his complaint, we added issues 1 and 2 to better capture the complaint. 3 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120172243 2 0120172243