U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gloria D.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120180762 Agency No. FS-2017-00956 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated November 9, 2017, dismissing a formal complaint alleging 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Chief Pilot, Check Airman, and Director of Safety for both Mountain Aviation and Flying "A" Flight (hereinafter "Mountain Aviation), located in Santa Maria, California. The companies entered Exclusive Use contracts with the Forest Service (Los Padres National Forest), with Complainant serving as a pilot at the Santa Maria Air Tanker Base. Believing that she was subjected to harassment (sexual and non-sexual) by two Agency employees, the Air Tactical Group Supervisor2 (hereinafter "Supervisor") and an Air Base Technician (hereinafter "Technician"), Complainant filed a formal EEO complaint with the Agency on October 26, 2017. In its final decision, the Agency framed the claims as follows: 1. On October 7, 2017, the Supervisor informed Complainant that he would do whatever he could to make sure she lost her pilot fire card. 2. On October 4, 2017, the Supervisor informed management that if the Flight company continued to allow Complainant to fly with him, then he would revoke the flight company's Exclusive Use contract and replace with another vendor. 3. On or about August 15, 2017, management informed her that she would lose her job if she refused to fly with the Supervisor. 4. On several dates from 2013 to 2017, Complainant was subjected to various incidents of harassment, including but not limited to (a) On or about August 15, 2017, Complainant learned from a coworker that on numerous occasions, the Supervisor referred to her as a "c---." (b) On a number of unspecified dates, the Supervisor: i. contacted [the Company owner] and referred to her as incompetent; ii. displayed physical aggression, yelled, and slammed objects on tables in order to intimidate Complainant; iii. told Complainant and other female employees to disperse from the breakroom because "they can't be together", however he did not say anything to male employees when they congregated in the breakroom; iv. increased the volume on the breakroom television in order to prevent conversations among the female employees; v. made remarks about "too much estrogen being in the room" when Complainant and other female employees were together; vi. referred to the office as a "hen house" when Complainant and other female employees were together; vii. in an unwelcomed and offensive manner, exposed his groin to Complainant; viii. used the word "menopause" toward Complainant and other female employees in a derogatory manner; and, ix. suggested, when he was ignored by them, that Complainant and other female employees were "on their periods". The Agency dismissed the complaint for failure to state a claim, reasoning that since Complainant was a contractor she lacked standing to bring an EEO complaint. According to the Agency, citing Ma v. Department of Health and Human Services, EEOC Appeal No. 01962389 & 01962390 (May 29, 1998), eight factors indicated that Complainant was not an Agency employee. Specifically, the Agency noted that the skills necessary to perform the work were Complainant's responsibility, the plane and fuel was supplied by Mountain Aviation, and her pay and benefits were provided by Mountain Aviation. The Agency determined that it lacked the authority to assign Complainant extra work, and the discretion as to when and how long to conduct flight operations was on Mountain Aviation. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed the instant formal complaint for failure to state a claim on the basis that Complainant 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. 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. Agencies often conclude that an individual is not an employee based solely on the fact that the individual performs work pursuant to a contract between the federal government and an outside organization and the outside organization, not the federal government, controls the pay and benefits of that individual. See, e.g., Helen G. v. Dep't of the Army, EEOC Appeal No. 0120150262 (Feb. 11, 2016); Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120151697 (Feb. 9, 2016). These elements are just two of the factors relevant to joint employment under the Commission's long-standing position and it is not at all surprising that they would be present when an individual working under a federal contract for a federal agency raises a complaint of discrimination. The term "joint employer" refers to two or more employers that each exercises 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. In the instant case, we find that the Agency's cursory analysis improperly concluded that Complainant was not an employee for EEO purposes. The Commission finds, upon closer examination, that the Agency exerted sufficient control over Complainant to be considered her joint employer. The parties do not dispute that Mountain Aviation provided the necessary equipment and materials (i.e. plane and fuel), paid Complainant, and provided her with leave and benefits. These factors indicate that Mountain Aviation, a contractor of the Agency, is Complainant's employer. As noted above, the Agency simply reasoned that the skills required to perform the work were "solely the responsibility of the Complainant". A proper analysis, in considering an employee/employer relationship, would have considered the level of skill required. In the instant case, the Agency required particular skills of Mountain Aviation pilots. In addition to being a licensed pilot, Complainant was required to obtain a pilot card4 from the Agency which certified her ability to fly Agency missions. Similarly, while Mountain Aviation provided the planes, the contract reflects that the Agency dictated the requirements for such planes and the equipment on board, even listing mandated contents for First Aid Kits. The Agency asserts that Mountain Aviation controlled when and how long Complainant worked, and the Agency's Contracting Officer Representative (hereinafter "CO") explained that a pilot has the authority to cancel or modify a flight for safety reasons. However, as evidenced by the contract, the Agency set the hours of operation and the flight plans to be used. The contract language states that pilots shall use Agency approved flight plans for all flights, and expressly noted that "contractor flight plans are not acceptable." Further, the record indicates that the Agency held the ability to terminate individuals. Specifically, the contract stated that Mountain Aviation "may be required to replace employees who are found to be in non-compliance with government facility rules of conduct". Further the "determination of unacceptability is at the sole discretion of the CO. When directed by the CO, the contractor shall replace unacceptable personnel." Such power is reflected in claim (3), when Complainant describes the Supervisor's threats to have her fired. She describes repeated efforts by the Supervisor to have her "banned" from the base or fired, by complaining to the owner of Mountain Aviation. According to Complainant, the Supervisor's untruthful remarks resulted in a visit to the base by the Mountain Aviation owner and her removal from a flight. We are not persuaded by the Agency denial that it had the ability to control the manner of Complainant's work. Mountain Aviation may have controlled which pilots were on the rotation, but the CO explained that the Agency was responsible for the pilot's assignments: directing latitude, longitude, and route. The contract also grants the Agency the ability to dispatch the aircraft and pilots for use under "interagency and cooperative agreements with other Federal and State Agencies and private landholders." Moreover, the nature of Complainant's claims point to control exerted by the Agency, not Mountain Aviation, over to the workplace. The Tanker Base is the Supervisor's duty station, and the instant record does not reflect the presence of any Mountain Aviation management onsite. Complainant describes, with many specific examples, a "sexually hostile work environment for women at the Air Tanker Base". In one instance, the Supervisor "came and sat in front of us with his legs spread wide open. He was wearing shorts. His groin was prominent and he was shifting so his groin was right in our faces. He was purposely trying to show us his groin area." A pilot who works for Complainant informed her that the Supervisor only refers to her as " the f---ing c---." She also describes observing harassment of two other women by the Technician, as further evidence of the demeaning and sexist atmosphere. She asserts that her work environment "should not be an antagonistic one that employs men who make unwelcome, hostile, cruel, demeaning, or sexist comments . . . . and has the effect of preventing me from performing my job." Therefore, based on the legal standards and criteria set forth in our previous decisions and guidance, we find that the Agency did exercise sufficient control over Complainant's position to qualify as her joint employer for the purpose for the 29 C.F.R. Part 1614 EEO complaint process. Finally, we address the Agency's alternative grounds for dismissal raised for the first time in response to Complainant's appeal. In addition to reiterating the reasoning set forth in its decision, the Agency argues that Complainant has not established a prima facie case of harassment. Specifically, the Agency contends that the alleged harassment is not sufficiently severe or pervasive to alter the conditions of her employment, and that Complainant has failed to show that the alleged events and remarks were based on her sex. We disagree. In support, the Agency cites several Commission cases and argues that the allegedly discriminatory actions in those instances were found to be merely "general workplace disputes" or "trivial slights and petty annoyances". Upon examination, we find that the Agency has totally mischaracterized the analysis conducted in those cases to reach its faulty conclusion. For example, in one case, the Commission found that the alleged events simply did not occur as alleged or were not motivated by discrimination. See Ramseur v. United States Postal Service, EEOC Appeal No. 0120121212 (June 2013). In another case, we concluded that Complainant did not establish a nexus between the one-time incident and his protected basis. See Ortiz v. United States Postal Service, EEOC Appeal No. 0120071828 (April 2009). This differs greatly from concluding that the events simply do not state a claim of harassment. The events in the instant complaint state a justiciable claim of discriminatory harassment based on sex. CONCLUSION The Agency's final decision dismissing the formal complaint is REVERSED and the matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims 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 March 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 The Counselor's Report also refers to this individual as the "Fire Aviation Officer". 3 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. 4 This appears to be the "pilot fire card" Complainant references in claim (1), which needed to be renewed annually. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180762