U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvaro M.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 0120180260 Agency No. DeCA-00041-2017 DECISION On November 18, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 19, 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 At the time of events giving rise to this complaint, Complainant was employed by a staffing firm serving the Agency in the position of Material Handler at the Hurlburt Field Air Base Commissary in Florida. The staffing firm is a vocational rehabilitation program and had a contract with the Commissary to supply shelf stocking and custodial services. On January 18, 2017, Complainant filed a formal complaint alleging, in relevant part, that the Agency discriminated against him based on his disability (Attention Deficit Hyperactivity Disorder) when: 1. On October 27, 2016, he was suspended, and on November 10, 2016, he was terminated; and 2. By not stopping people from unnecessarily gathering and talking in areas he worked in the warehouse, he was not reasonably accommodated and an unsafe work area was created (e.g., people distracting him and getting in the way of his forklift and palette machinery, slowing him down and making an accident more likely). The Agency previously procedurally dismissed the complaint. Complainant appealed. In Alvaro M. v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 0120171459 (Aug. 11, 2017), the EEOC ordered the Agency to gather information on whether the Commissary was Complainant's common law joint employer, and then accept issues 1 and 2 for investigation or issue a FAD dismissing them. In October 2016, a worker with Frito-Lay who stocks their product on Commissary shelves wrote a series of statements to Agency management complaining about alleged incidents involving Complainant occurring from around February 2016 to October 15, 2016. In summary, the Frito-Lay stocker alleged Complainant engaged in following - getting into a shouting match after being assigned a task which frightened Contractor 1; discussing guns with a woman and then aggressively following her while talking loudly as she tried to walk away and impeding her exit from the warehouse; after interrupting and taking over a conversation the Frito-Lay stocker was having she tried to leave the warehouse and Complainant aggressively impended her exit by cornering and blocking her while telling her she and "other women don't understand the mindset of men," "most men have no respect for women because all men have on their mind is that they want to fuck women," and raised explicit sex acts like "blow jobs," making her very uncomfortable; intentionally putting a large fan in front of the Frito-Lay carts blocking access to them to upset her, and after she moved the fan falsely telling someone that she damaged it and the wall socket when there was no damage; interrupting her conversation about Wells Fargo's engaging in fraud and walking toward her saying things like "you obviously don't understand the Federal Reserve," getting close up to her face while talking loudly and cornering her, impeding her exit, and following her all the way into the sales floor as she walked away; and after she calmly stood up to Complainant by telling him she would report him to the Commissary office and his staffing firm if he got aggressive and confrontational with her again by corning her and impeding her exit, he waived his hands in the air, made fun of her by saying "lady, I don't know what you are talking about," "you are crazy," and again followed her. The Hurlburt Commissary Store Director stated that he forwarded the Frito-Lay stocker's complaints about Complainant to S1, Complainant's onsite staffing firm supervisor. The Store Director stated that since neither party was a Commissary employee, he asked S1 to investigate the complaint, and told him that if the complaints were true, then Complainant should not work around the Frito-Lay stocker. On October 27, 2016, S1 suspended him, pending an investigation into the allegations against him. Complainant ceased earning any income. By memo to Complainant dated November 2, 2016, S1 communicated to Complainant that the investigation was completed, concluding he had engaged in a serious violation that warranted discharge. Nevertheless, the staffing firm decided to offer Complainant a "last chance" employment opportunity, but not at Hurlburt Commissary because this incident affected a contractual outcome.2 Complainant was offered the position of Shelf Stocker on the night shift at the Pensacola, Florida Commissary (a/k/a Corry Station). Complainant declined the position in Pensacola due to transportation problems and instead sought to return to a position at the Hurlburt Commissary. Complainant initiated contact with an EEO counselor on December 5, 2016. In her report, the EEO counselor relayed that the Store Director said he did not bar Complainant from the Commissary, it was the staffing firm that told him he could not come back, and that any investigation of Complainant would be done by the staffing firm since he was their employee. The EEO counselor further reported that the Store Director said that if the staffing firm allowed Complainant to return, he would have to be on a different shift from the Frito-Lay stocker to separate them because of her sexual harassment charge and the Agency's zero tolerance policy. On remand, the staffing firm's Vice President of Human Resources stated as follows. On October 27, 2016, the Store Director gave S1 verbal notice that Complainant had been accused of harassing a Frito-Lay stocker. S1 immediately suspended him pending investigation. During the initial part of the suspension the staffing firm gathered information to determine the facts. While Complainant simply reported doing nothing wrong, information from others was considered as sufficiently credible, and Frito-Lay expressed concern about the well-being of their stocker. Accordingly, the staffing firm decided not to advocate or request that the Store Director reconsider his stance. But since Complainant's conduct issues seemed to focus on the Frito-Lay stocker, the staffing firm decided to offer Complainant a position at the Pensacola Commissary, the only vacancy it had in the area. In his January 2017 EEO complaint, Complainant wrote that the Agency EEO counselor assisted him in securing his return to the Hurlburt Field Commissary, but he was demoted from Material Handler to shelf stocker with less pay, his hours were reduced, and he was moved to the night shift. In Complainant's prior appeal, his father, who served as his representative, wrote that before Complainant returned, the EEO counselor had to have the Store Director send the staffing firm a letter that he approved this. On remand, the staffing firm's Vice President of Human Resources wrote that on December 15, 2016, Complainant's father informed them that the Store Director advised he would allow Complainant to return to the Commissary, and on December 20, 2016, they received notice from the Store Director that he would accept Complainant's presence at the Commissary, so long as he only worked on the night stocking shift when there was a full-time staffing supervisor and full-time Agency quality assurance employees present. After gathering information on remand, the Agency issued another FAD again dismissing the complaint. It reasoned that Complainant was an employee of the staffing firm, not the Agency. The instant appeal followed. Complainant, by and through his father, argues that we should find he was jointly employed by the Agency. ANALYSIS AND FINDINGS 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. The matter before us is whether the Agency properly found that Complainant had no standing to file a Part 1614 EEO complaint because he was not its employee. 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. 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, the 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, some control factors point to the Agency being Complainant's joint employer - specifically that he worked on Agency premises using some Agency equipment and had worked at the Hurlburt Commissary for about 10 years. In a submission to the EEO counselor, Complainant conceded that he did not report to an Agency supervisor and got direct assignments from the staffing firm, with some assignments from the Agency. In a letter written on remand, Complainant indicated that the grocery manger often directed him to help move pallets and store displays, and sometimes to help build displays. The staffing firm Vice President of Human Resources wrote that tasks were typically assigned to Complainant by his staffing firm onsite supervisor, or one of his designees.4 The Store Director denied that Commissary staff assigned Complainant tasks or requested they be done (such as moving pallets). In the absence of a statement from the grocery manager, we credit Complainant's account that the Agency sometimes gave him assignments, which points in the direction of joint employment. While some factors point to the Agency being Complainant's joint employer, here a significant factor in the determination is whether the Agency had the power to terminate him. This is especially true since Complainant's claim largely regards his termination. Murphy v. Department of Veterans Affairs, EEOC Appeal No. 0120132014 (Sep. 17, 2013). We find the Store Director's account persuasive of the circumstances surrounding Complainant's termination by the staffing firm. He stated that since Complainant and the Frito-Lay stocker were not Commissary employees, he asked S1 to investigate the Frito-Lay stocker's complaint. This is consistent with the parties' relationships, and the weight of the record. Neither the Complainant nor the Frito-Lay stocker had a formal employment relationship with the Commissary, and S1, from the staffing firm, was Complainant's onsite supervisor. Also, the staffing firm stated that during the beginning of Complainant's suspension, it gathered facts on the Frito-Lay vendor's complaint, found them credible, and weighed that Frito-Lay indicated they were concerned about the well-being of their stocker. The Store Director stated that he never barred Complainant from working in the Commissary, rather he told S1 that if he determined the Frito-Lay stocker's complaints to be true, Complainant should not work around her. We find this consistent with the weight of the record. In mid-December 2015, Complainant's father emailed the staffing firm's HR Administrator that he learned from the EEO counselor that Complainant was not barred by the Store Director from returning to work, but he needed to not work when the Frito-Lay stocker was working. This email was corroborated by the EEO counselor in her report. The HR Administrator replied that she understood he was eager for Complainant to return, but it was important for the staffing firm's management team to complete their process. By the time he filed his formal EEO complaint on January 18, 2017, Complainant had resumed his employment with the staffing firm serving the Hurlburt Field Commissary. While the staffing firm's HR Administrator previously suggested in an email to Complainant's father that the Store Director made a decision to bar Complainant from working at the Commissary, and the staffing firm's Vice President of Human Resources indicated on remand that the Store Director gave S1 verbal notice that Commissary no longer wanted Complainant there, we find that they conflated the meaning of what the Store Director said to S1 - his statement that he did not want Complainant to work around the Frito-Lay stocker (meaning not on her shift) with his saying Complainant was barred from the Commissary. There is no indication in the record that the HR Administrator or Vice President had direct knowledge of what the Store Director said or meant. In sum, we find that the staffing firm made an independent decision, after it gathered facts on the Frito-Lay stocker's complaints, to offer Complainant the option of serving in a position in another Commissary rather than being terminated. When Complainant declined its offer to work at the other Commissary, it was the staffing firm who decided to terminate his employment, which was later reinstated. See Murphy, EEOC Appeal No. 0120132014 (while a majority of the control factors pointed to joint employment, we concluded the agency was not at 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, 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 April 5, 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 Section 1.3.11 of the contract between the Agency and staffing firm provides that the Agency Contracting Officer will require, in writing, that the staffing firm would immediately bar any of its employees from further performing work under the contract if the employee displays disruptive/unacceptable behavior (e.g., abusive, demeaning, foul or threating language or fighting). The EEO counselor relayed that the Store Director stated he did not bar Complainant from the Hurlburt Commissary, and the record contains nothing in writing from the Contracting Officer or any other Agency official barring Complainant from performing work for the Agency. 3 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. 4 On remand, Complainant's father wrote that Complainant's staffing firm supervisor's workday did not begin until the second half of Complainant's day shift, and the supervisor was out on medical leave just prior to the October 2016 incident. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180260 8 0120180260