U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karleen R.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 0120173075 Agency No. HS-CBP-01249-2017 DECISION On September 18, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 15, 2017, dismissing her 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. and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for Staffing Firm 1 serving the Agency as a Customer Service Representative at the Agency's Electronic Visa Update System Call Center in Washington, DC. Staffing Firm 1 is a subcontractor of Staffing Firm 2, which assisted managing the Call Center. On May 9, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected her to discrimination and harassment based on her race (Asian), national origin (Chinese, born in mainland China), sex (female), and reprisal for prior protected opposition EEO activity under Title VII when: 1. From August 25, 2016 through March 18, 2017 (from the dates Staffing Firm 1 issued Complainant her offer letter to the effective date of her termination) she was paid less than similarly situated male U.S. born employees (the only male comparator Complainant identifies at this point is a Staffing Firm 1 employee); 2. In September 2016, Staffing Firm 1 revoked its offer to her to serve the Agency as a Quality Assurance Supervisor/Trainer, explaining its Executive Vice President wanted someone with an American accent; 3. From September 2016 through March 18, 2017, she was denied pay increases and promotions (e.g., a Quality Assurance Supervisor/Trainer position filled in September 2016, by Staffing Firm 1 with a Chinese female married to a White male with an Anglo last name favored by the Agency Chief of the Electronic Visa Update System Call Center, and in January 2017, a Program Manager position was filled by Staffing Firm 1 with a Taiwanese female brought up in the U.S. from a young age); 4. She was harassed by her on-site Staffing Firm 1 Quality Assurance supervisor, who kept telling her she did not belong here and stood behind her chair frequently observing her stance and manner. She complained to Staffing Firm 1 and the above Agency Chief, and the later replied that the Quality Assurance supervisor had a right to inspect and monitor her work and Complainant shall not make the office "unsafe" by bringing up the matter; 5. Starting around January 2017, Staffing Firm 1 cut down her weekly hours from around 40/50 to around 17; and 6. She was terminated effective March 18, 2017.2 The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was employed by Staffing Firm 1, not the Agency.3 The instant appeal followed. On appeal Complainant argues, as she did before, that under common law she was jointly employed by the Agency. In opposition to the appeal the Agency argues it did not jointly employ Complainant. It cites to the EEO Counselor's report which represents that an Agency Supervisory Officer stated that the Staffing Firm 2 Program Manager was responsible for scheduling, approving leave, addressing performance issues, managing, and handling disciplinary issues of contract employees, and the Agency did not have control over their daily work and schedules. The Agency argues that in Staffing Firm 1's letter to Complainant offering her employment serving the Agency, she was advised she would be reporting directly to a staffing firm Program Manager, and Staffing Firm 1 took care of Complainant's compensation and issued the letter terminating Complainant. 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); 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. 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 her complaint, Complainant contended that the Agency provided Staffing Firms 1 and/or 2 a list of employees it recommended be terminated, including two Quality Assurance supervisors because the Agency said their Chinese language skills were not adequate. In a declaration that Complainant submitted to the Agency before it issued its FAD, she wrote that a Staffing Firm 1 Customer Service Representative was terminated immediately after having a confrontation with an Agency Officer, and an Agency Officer scolded another Staffing Firm 1 Customer Service Representative, saying "I can fire you. But I will give you one more chance." Complainant continued that in a (March 19, 2017) voicemail by a Project Officer with (Staffing Firms 1 and 2), she was notified that the Agency and Staffing Firm 1 decided to terminate her. She contended that she was terminated in retaliation for sending an email to the Agency and Staffing Firms 1 and 2 on March 17, 2017. She characterized the email in part as voicing concerns about discriminatory practices and stating the Call Center needed to hire qualified workers who grasp the meaning of Chinese terms. In her declaration, Complainant further stated as follows. She was closely supervised by Agency officials regarding technical knowledge and professional issues, each shift is staffed by two Agency officers, her work was assigned by Agency duty officers, she was once asked to stay past her shift by an Agency officer, she sought guidance on her work from on duty Agency officers, she worked on Agency premises using Agency equipment, and she could have continued to serve the Agency - she did not have a term appointment with Staffing Firm 1. The Agency enforced a dress code, once reprimanding a Staffing Firm 1 Quality Assurance supervisor for not following it. We note that Complainant's version of events was supported by her declaration with some specific examples, and the Agency Supervisory Officer, whom the Agency cites on appeal, relayed a more generalized account to the EEO counselor.4 Based on the legal standards, criteria and guidance set forth herein, we find that the Agency possessed sufficient control over Complainant's position to qualify as her common law joint employer for the 29 C.F.R. Part 1614 EEO complaint process. Complainant has put forth sufficient facts, for purposes of determining that her complaint states a claim, on the Agency's control and/or right to control her employment in whole or part regarding her termination and other matters (see paragraph above) to support this finding. The Agency's involvement and/or responsibility for other matters, e.g., unequal pay, revoked offer of promotion, denial of pay increases, and reduction in hours will only be seen after the Agency conducts an investigation. ORDER The Agency is ordered to process the remanded claims, as redefined herein, 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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 February 22, 2018 __________________ 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 have redefined the complaint to better capture Complainant's claims. 3 It is undisputed that Complainant is not an independent contractor. 4 We make no determinations here on the merits, nor assess who may be liable for specified alleged discriminatory events. The federal sector process does not have jurisdiction over Staffing Firms 1 and 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120173075 8 0120173075