U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michal J.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration (NOAA)), Agency. Appeal No. 0120180169 Agency No. 54-2017-00037 DECISION On October 10, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 20, 2017, dismissing his 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 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 worked for a staffing firm serving the Agency as a part-time on-call Captain II on the Agency's Research Vessel Shearwater, home port Santa Barbara, California. On October 9, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his race (Hispanic/Latino), color (dark complexion), and age (47) when he was terminated on October 5, 2016. The Agency provisionally accepted Complainant's complaint for investigation to obtain documentation and declarations to allow a determination on whether it had sufficient control over Complainant's position to be deemed his former common law joint employer. Complainant was hired by the staffing firm on June 3, 2015, to serve as a part-time/on-call Captain II primarily aboard the vessel Shearwater. The Agency owned the Shearwater and its equipment. The staffing firm provided support for the Agency's scientific missions, including vessel operators. Complainant served as a Relief Captain when staffing firm Captain I was absent, and Mate when Captain I was aboard as Captain. A Captain is the functional leader of the boat and has final responsibility for the safety of the crew, passengers, and operation of the vessel. When serving as Chief Mate/Officer in Charge, Complainant's duties included overseeing the daily operation of the boat's main engines and other machinery, performing routine and emergency maintenance and repairs, fuel management, and acting as the vessel's Safety Officer. A Technical Science Writer and Researcher/Deckhand ("Deckhand"), also employed by the staffing firm, stated that her duties included assisting with vessel operations, and while onboard the Shearwater she reported to Captain I. Prior to serving on the Shearwater, the Deckhand had years of experience working on boats, earned a United States Coast Guard 100-ton captain's license, and was qualified to serve as Captain of the Shearwater. As Deckhand, she was subordinate to Complainant aboard the Shearwater. The Deckhand stated as follows. As a new crewmember of the Shearwater, she hoped to learn all aspects of working aboard the vessel from Complainant. Instead, on her first trip with him in the summer of 2015, Complainant said he preferred not to have help because it was easier for him, and told her he could not understand how someone like her was hired, it made no sense, and he did not know what people were thinking. Part of Complainant's job was to train new crewmembers, and he seemed frustrated and disgusted that she was now part of the crew, making condescending and demeaning requests to her such as to "go stand on the other side of the boat," "stay out of his space as he needed to work" while waving his arms around as far as he could, and "watch, but don't touch anything." For no apparent reason, when Captain I gave her the tasks of anchor controls and tying the Shearwater's lines, Complainant would come over and take over the anchor controls and grab the lines out of her hands, telling her to get out of the way. He refused to acknowledge her presence. She alleged he was demeaning and dismissive of her, and his constant spitefulness drove her to tears on multiple occasions. She said she previously worked on boats where misogyny was the culture and could still gain the respect of her male coworkers and succeed in her job, but was unable to do so with Complainant, who flat-out refused to accept that she could do something as basic as tying a line on a boat despite all her qualifications. Another member on the Shearwater was the Lieutenant, employed by the Agency, who served as the Vessel Operations Coordinator. Her duties included scheduling crew, including Complainant, scheduling operations and vessel maintenance for the Shearwater, and supervising the Shearwater's projects and inspections. She previously worked on large ships for years, and was a capable captain. She stated that Complainant would come up and corner her and heatedly tell her what she was doing wrong and what was going wrong on the vessel, when she greeted him by asking how he was he would say things like "did you get trained to ask that question," he was very dismissive of her, and once when she was pulling in lines rather than take an empty position he took her lines, creating a hazardous situation. The staffing firm Deckhand stated that she observed Complainant's interactions with the Lieutenant and they were like his interactions with her. The Deckhand stated that in July 2016, she told staffing firm Captain I that she did not know how much longer she could work with Complainant. She stated that she was close to asking not to be scheduled on the Shearwater for this reason. She understood that Captain I spoke to Complainant about the situation, and wrote she did not see any long-term change in how he treated her. Captain I stated that in early April 2016, he witnessed Complainant's aggressive behavior toward the Deckhand, who complained to him about the incident. Believing Complainant's behavior created a safety concern, he met with him to discuss his behavior. Around this time, Captain I met with the Deckhand and Agency personnel and in response to a question advised that he did not believe Complainant would change his behavior. Around June 2016, Captain I had several conversations with the Chief Executive Officer/President of the staffing firm and Agency personnel about Complainant's behavior toward the crew. Captain I stated that leading up to and prior to Complainant's termination, the Deckhand and another staffing firm crew member repeatedly told him that Complainant was aggressive toward them in tone and behavior. Captain I wrote that he had numerous meetings and discussions with Complainant about this and his response was that his behavior was necessary because the job was not being done right. The staffing firm President stated as follows. He knew that Complainant was not respectfully treating the Deckhand and that Captain I was giving him ongoing counseling. He learned from the Deckhand that Complainant frequently treated her in a degrading manner. Over the course of his conversations with the Deckhand, it became apparent to him that Complainant was not responding to Captain I's counseling. Complainant made comments to the Deckhand that she perceived as sexist, said and did things that publicly humiliated her, and things became so intolerable that the Deckhand felt she could no longer work with Complainant on the Shearwater. Based on information he received from the Deckhand, the President became increasingly concerned that Complainant's behavior rose to the level of harassment based on sex, potentially violating staffing firm policy and the law. The Agency Deputy Superintendent for Operations and Administration stated that in 2016, after learning the Deckhand and Lieutenant were victims of Complainant's repeated attacks and he failed to correct his behavior, he spoke with the staffing firm President who together with the Agency's Contracting Officer's Representative, relayed that they may need the staffing firm to provide a different Captain for the Shearwater due to Complainant's on-going behavior problems. The Deputy Superintendent stated that in the Fall of 2016, he had a follow-up conversation with the President requesting that the staffing firm no longer schedule Complainant to work as a Captain on NOAA vessels due to his behavior. The President of the staffing firm stated that he understood that Complainant treated the Lieutenant in a degrading manner, like the way he treated the Deckhand, and this caused him great concern. He stated that Complainant's treatment of two female crewmembers (the Deckhand and Lieutenant) catalyzed his decision to terminate his employment, with the culminating incident being Complainant loudly and publicly humiliating the Lieutenant to the point it drove her to tears. The President wrote that he made the decision to terminate Complainant based on his concern that his treatment of female crewmembers jeopardized their health and safety, created a severe and pervasive hostile working environment, likely violated the law and staffing firm policy, and the staffing firm's duty to take corrective action in these circumstances. He stated that while Complainant may have complained about the qualifications of female crewmembers, he believed they were a direct manifestation of his sexism and could be considered discriminatory acts. Following the provisional investigation, which included declarations by nine witnesses in both the Agency and staffing firm and Complainant, the Agency issued a FAD dismissing Complainant's complaint. It reasoned that Complainant was an employee of the staffing firm, not 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); 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 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. While there are some factors pointing to the Agency having control over Complainant's employment (e.g., the Agency scheduled some of his tasks, he worked aboard an Agency vessel using Agency equipment, he was verbally counseled at least twice about his behavior by the Agency Deputy Superintendent of Operations and Administration), a significant factor in determining whether an Agency is a joint employer is whether it has the power to terminate an employee. This is especially true since Complainant's claim regards his termination. Murphy v. Department of Veterans Affairs, EEOC Appeal No. 0120132014 (Sep. 17, 2013). The Agency Superintendent of Operations and Administration stated that the staffing firm had contracts with other agencies and organizations (e.g., the U.S. Navy, and tug, barge and oil companies) to provide Captains and crew for vessels. While a majority of the control factors pointed to joint employment in Murphy, we found in that case that the agency was not the joint employer, as evidenced by the staffing firm continuing to employ the complainant in another location after the agency decided it no longer wanted his services. Here, the record shows that the staffing firm made an independent decision to terminate Complainant after looking into the matter - getting information about his behavior from its Deckhand and Captain I, as well as others. Further, the record suggests that the staffing firm could have assigned Complainant elsewhere, but chose to terminate him based on his treatment of women crewmembers, which potentially violated its policy and the law. We find that the Agency did not have sufficient control (or right to control) over Complainant's employment to be deemed his common law joint employer. 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 March 27, 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 0120180169