U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shelton D.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency (DeCA)), Agency. Appeal No. 0120180591 Agency No. DeCA-00146-2017 DECISION On November 27, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 18, 2018, dismissing his complaint alleging 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, a stocker, was used by four separate vendors of grocery merchandise to stock their product in the customer shopping area of the Agency's Fairchild Air Force Base Commissary in Washington state. He was paid by each vendor on a piece basis - by the amount of merchandise he shelved. On August 9, 2017, Complainant, by and through his father,2 filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to discrimination based on his disability (autism) when: 1. He was bullied and harassed; 3 and 2. He was terminated by the Commissary on February 22, 2017.4 Complainant contended that Coworker 1, an Agency employee of the Commissary, interfered with his work by doing things such as hiding his product and cart, placing his product at the bottom and stacking other cases on top to make it difficult for him to get to his merchandise, and delaying breaking down his load, which Complainant was not permitted to do, so he would have to wait. Coworker 1's duties including being a computer assistant ordering (CAO). Complainant contended that Coworker 1 used this function to distort to the grocery manager, a Commissary employee, the stocking work he did. This allegedly included running misleading reports just after his product arrived to indicate he had not stocked merchandise, and advising that Coworker 1 had to stock product Complainant failed to stock, even though Complainant had stocked the product. Complainant contended that Coworker 1, with Coworker 2, another grocery employee of the Commissary, were heard talking and laughing about what they had done to him and what they should do to him next. Around January 2017, the grocery manager, who believed Complainant needed to lighten his work load, told him that he must give up one or two of his vendors, and he replied he could not afford to do so. According to Complainant, the three vendors the grocery manager communicated to about this all refused to fire him, saying he was doing a great job. On February 22, 2017, the grocery manager pulled Complainant's vendor badge. The badge was required for him to serve in the Commissary. The grocery manager stated she did this because Complainant was not keeping up with his stocking, forcing Agency employees to stock his product. The Store Director stated Complainant's vendor badge was pulled because he did not stock all his product daily. She conceded Complainant's vendors were not happy his vendor badge was pulled, and they wanted him to stay. In June and July 2017, the Agency conducted an internal inquiry and issued a report on allegations Complainant made. In her report, the investigator determined that Coworker 1 and other Commissary workers interfered with Complainant's stocking by hiding his cart used daily to stock merchandise, purposely waiting until the last minute to break down Complainant's load so he would have to wait, and Coworkers 1 and 2 stared at Complainant. Witnesses corroborated allegations made by Complainant. For example, a quality assurance evaluator (QAE), a Commissary employee, stated that Coworker 1 and others would place Complainant's product on the bottom of the cart and put other product on top, and one of Complainant's vendors stated Complainant was harassed and picked on. The QAE opined that the real reason Complainant was let go was because Coworker 1 and the grocery manager did not like him because he is a "special needs" person. One of Complainant's vendors (of four years) stated that Complainant works quickly, is trustworthy, and emphatically emphasized that the Commissary never stocked his product. Another of vendor of Complainant stated that he was a hard, dedicated worker, and despite his verifying daily with photographs what he stocked and was in his back stock, was wrongly accused by Coworker 1 of not stocking everything. The Agency dismissed Complainant's complaint for failure to timely initiate EEO counseling. It reasoned that Complainant did not initiate EEO counseling until May 8, 2017, beyond the 45-day time limit to do so. It also dismissed the complaint for failure to state a claim because he was not an employee of the Commissary. The instant appeal followed. Complainant's father writes that he represents his son because he is special needs person, and not knowing how to proceed, the father sent the initial letter dated April 22, 2017, complaining of discrimination to the West Area Agency Director. The letter is in the record with the subject line "HARASSMENT, HOSTILE WORK ENVIRONMENT, AND WRONGFUL TERMINATION...," and explicitly alleges discrimination. The father writes that any delay in "filing a claim" was due to the Store Director or the grocery manager not informing Complainant or his parents of his right to file a claim.5 Complainant's father also argues, among other things, that the Agency wrongfully terminated his son. He adds that the project manager with the company that hired his son after he was fired by the Agency advised him that in mid-December 2017, he heard Coworker 1 ask another stocker, referring to Complainant, "why did you ask the Retard to help you?" ANALYSIS AND FINDINGS Timeliness An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). Under 29 C.F.R. § 1614.105(a)(2), an agency shall extend the 45-day time limit to initiate EEO counseling where the complainant shows that he was not notified of the time limit and was not otherwise aware of it. It is well-settled that where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992). Complainant argues that he was unaware of the 45-day time limit to initiate EEO counseling and/or how to initiate an EEO claim. The record contains an EEO poster designed to be posted on bulletin boards with this information, and it indicates these procedures apply to all current and former DeCA employees, and applicants for employment with DeCA. We find that the Agency has not met its burden of obtaining sufficient information to support its determination on timeliness. While the record contains an EEO poster, the Agency provides no information on whether it was posted, and if so, where. Further, given that Complainant was at the Agency only to stock shelves, it is unlikely that even if he saw the poster that he would know it applied to him. Moreover, due to his disability, Complainant's father has his power of attorney and would not have been in a position to see the poster. The Agency's dismissal for untimeliness is reversed. Accordingly, we exercise our discretion to excuse any delay in seeking EEO counseling in this matter. See 29 C.F.R. § 1614.604(c). Standing The Agency found that Complainant failed to state a claim because 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. The Commission applies the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)). See also Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016). Whether a worker is an independent contractor or can be considered an "employee" for the purpose of using the 29 C.F.R. Part 1614 EEO complaint process depends on if the control or right to control the means and manner of the worker's work rests with the Agency or the worker. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues, Question 1 (Dec. 3, 1997) (available at www.eeoc.gov) (hereinafter "Enforcement Guidance"). Making this determination is fact-specific and requires consideration of all aspects of the worker's relationship with the Agency. Factors indicating that a worker is in an employment relationship with an employer include the following: 1. The employer has the right to control the manner and means by which the work is accomplished.6 2. The skill required to perform the work (lower skill points toward an employment relationship). 3. The source of the tools, materials and equipment used to perform the job. 4. The location of the work. 5. The duration of the relationship between the parties. 6. The employer has the right to assign additional projects to the worker. 7. The extent of the worker's discretion over when and how long to work. 8. The method of payment to the worker. 9. The worker's role in hiring and paying assistants. 10. The work is part of the regular business of the employer. 11. The employer is in business. 12. The employer provides the worker with benefits such as insurance, leave or workers' compensation. 13. The worker is considered an employee of the employer for tax purposes. The factors above are designed to ferret out whether a worker's service to an Agency constitutes common law employment because the Agency has sufficient control or right to control the means and matter of the work. He served at the Commissary for six years (factor 5). Factors 1 - 2, 4 - 5, 7, 10 - 11 Indicate that Complainant is an Employee of the Agency Stocking is regulated by DeCA's Grocery Department Operations Manual. This includes when stock must be pulled based on age, precisely where to place product on assigned shelves, how to orient product by label, and rotating and stocking product based on when shelved. The manual explicitly provides that the "store director or subordinate manager will control the activities of vendor stockers within the commissary," and Complainant's stocking activity was closely monitored by the CAO, an Agency employee. Further, the Commissary grocery manager demanded that Complainant lighten his workload by dropping one or more of his vendors (factor 1). The skill required to stock shelves is low (factor 2). Complainant worked on Agency premises (factor 4). He served at the Commissary for six years and six days a week (factor 5). While the Agency was very flexible on when Complainant performed his duties, the grocery manager demanded that he cut back on his work by dropping one or two of his vendors (factor 7). Stocking is part of the regular business of the Commissary (merchandizing) (factor 10), and the Commissary is in business (factor 11). The Agency discharged Complainant when it removed his vendor badge, preventing him from serving at the Commissary. Prior to this, he was not let go by his vendors, and the Store Director conceded Complainant's vendors wanted him to continue serving at the Commissary. This power to remove factor is especially significant since a large part of Complainant's case regards his termination. Factors 3, 8, and 12 - 13 Indicate that Complainant may be an Independent Contractor Complainant stated that he provides his own equipment for stocking (factor 3).7 He was paid by his vendors on a piece work basis (factor 8), was provided no benefits (factor 12), and was not considered an employee for tax purposes (factor 13). Based on weighing all the control factors, we find that the Agency exercised sufficient control over Complainant's employment to qualify as his employer in the EEO complaint process.8 The FAD is REVERSED and the matter REMANDED to the Agency for further processing in accordance with the following Order. ORDER The Agency is ordered to process the remanded claims, as redefined by this decision, in accordance with 29 C.F.R. § 1614.108 et seq. 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 April 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 Complainant's father has a power of attorney from Complainant to handle his hostile work environment and termination claims against the Agency. 3 The Agency did not capture this claim in its final decision. Complainant raised it in EEO counseling, his complaint, and on appeal. 4 In the complaint, Complainant's father wrote that he had an update - upon learning of Complainant's termination, a company who mostly hires people with disabilities and has a contract to stock most of the Commissary's dry goods grocery products sought Complainant out. He included a letter by a company project manager, who wrote on July 31, 2017, that he served at the Commissary for years, saw Complainant daily, and when Complainant was released by the Commissary, he saw an opportunity to help his company by bringing on a reliable and dependable worker, and hired him. 5 Complainant's father also writes that he contacted the EEO office within the 45-day time limit, but there was a delay because the paperwork the EEO counselor emailed to him to file an informal complaint would not open, so the EEO counselor followed up by mailing paperwork. This appears to refer to actions that occurred after he contacted the EEO office since he is writing about the EEO counselor sending correspondence. 6 Another factor is whether the employer can discharge the worker. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov). This factor is especially significant in termination cases. 7 While Complainant stated this, the record does not show if the cart he used for stocking was provided by the Agency. If it was, this would tip this factor in favor of Complainant being an employee of the Agency. 8 There is insufficient information in the record to make a determination on factor 6, and there is no information on whether Complainant had any role in hiring and paying assistants (factor 9). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180591 8 0120180591