0120122211
11-08-2012
Nicole G. Elkin, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Nicole G. Elkin,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122211
Agency No. ARFTCAMP11DEC05471
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 23, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint Complainant worked for SERCO Inc., a private company, serving the Agency as a Victim Advocate in the Army Community Service (ACS), Family Advocacy Program (FAP), at Fort Campbell in Kentucky.
On February 29, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race/national origin (Hispanic/Mexican), sex (female), religion (atheist), and reprisal for prior protected EEO activity1 when the FAP Victim Advocate Program Manager (Manager 1), an Agency employee, created a hostile working environment for Complainant and other workers.
The Agency dismissed the complaint for failure to state a claim, reasoning that Complainant was not a federal employee, but an employee of SERCO Inc., a private entity providing contract services to the Agency. 29 C.F.R. �� 1614.103(c) and .107(a)(1).
Complainant was hired by SERCO Inc. and started working as a Victim Advocate at the Agency on August 1, 2011.2 In her complaint, Complainant wrote Manager 1 was her supervisor.
A memo by the Agency's EEO office detailing an interview with the Manager of FAP (Manager 2, an Agency employee) recounted the following: SERCO Inc. paid Complainant and provided insurance and other benefits. Computer and office space were provided by the Agency, and a cell phone by the SERCO Inc. Manager 1 assigned some work to Complainant and the other victim advocates, and established working hours. SERCO Inc. evaluated Complainant with little input from Agency officials, and SERCO Inc. made any decision on whether the relationship between Complainant and the Agency continued. Complainant submitted leave requests to the on-site Lead Advocate, a SERCO Inc. employee, which were approved by SERCO Inc. In finding that Complainant was not an employee of the Agency, the Agency referred to this interview with Manager 2.
The record also contains what appears to be an informal investigation by the Agency's EEO office that seems to have occurred during EEO counseling. Memos and other writings were submitted by various people. Complainant wrote that, in her first two weeks on the job, Manager 1 made her do clerical tasks of shredding documents for an accreditation, not Victim Advocate work. The on-site Sexual Assault Response Coordinator (SARC), a SERCO Inc. employee, wrote that when Victim Advocates expressed their discomfort with their shredding documents the on-site Lead Victim Advocate, a SERCO Inc. employee, contacted SERCO Inc. and FAP and was advised the documents needed to be shredded. Complainant wrote that, after she had been at Fort Campbell for two weeks, Manager 1 conducted a meeting and said the victim advocates could go to SERCO Inc. all they wanted, but what she said goes.
The SARC indicated that, soon after Complainant started, she asked Manager 1 if she could work in the Victim Advocate slot at the Military Police (MP) station, and Manager 1 said no. The SARC stated the Agency preferred evening service for this assignment, and Complainant wanted to work evenings. The SARC wrote that she suggested to Complainant that she talk to Manager 2 about it, and Manager 1 then chose Complainant for the slot. Complainant's hours there were from 4 PM to 1 AM. Complainant wrote that on the first day she was scheduled to work at the MP station, Manager 1 called her at 8:30 AM, waking her up, and demanding that she come in immediately and help with files for the accreditation. At the suggestion of the SARC, Complainant called Manager 2, who advised she was no longer required to come into the office when it was not during her normal duty hours for purposes of accreditation.
Complainant had a case load from working at the MP Station, and the record contains an email showing an instance where Manager 1 assigned a case to Complainant that apparently was not an MP Station case. The record contains an email where Complainant requested Manager 1 assign a case to another victim advocate and an email by Manager 1 to employees of SERCO Inc. requesting that once she assigns a case not to remove it from the system because it affects numbers. Complainant wrote that Manager 1 displayed a pattern of assigning her clients to other advocates, but did not give any idea how many cases this involved. Complainant described efforts by Manager 1 to get her reassigned from the MP station, which she did not want, that were unsuccessful because she could not get Manager 2's approval.
The SARC wrote that, in July 2011, Manager 1 told all three victim advocates that once they completed certain training, they would no longer be working sexual assault cases. The SARC wrote that she, in turn, advised them this was not true and they would continue to work sexual assault cases until an identified program was up and running, likely sometime in the summer of 2012.
Complainant stated that Manager 1 held mandatory staff meetings, one at 9 AM and one at 9:30 AM, even though her reporting time was at 4 PM. At the SARC's suggestion, Complainant talked to Manager 2 who told her in January 2012 she was not required to attend such meetings anymore. Complainant wrote this made her feel supported. Complainant had three monthly case conferences with Manager 1. She wrote that Manager 1 gave her incorrect instructions in the meetings, such as that domestic violence services are only for married people. The SARC stated she then gave Complainant the correct information on this.
The SARC wrote that she and another SERCO Inc. employee were the primary trainers for the victim advocates on sexual assault. The record contains an email by the SARC to Manager 1 reprimanding Manager 1 for providing sexual assault training because she gave incorrect information and asking her to discontinue such training.
The SARC stated that, on occasion, Manager 1 forced SERCO Inc. employees to leave early because she gave Agency employees an hour off, saying contractors could not work in the building without a government employee present.
Complainant wrote that she was afraid she could be removed because Manager 1 mentioned several times that she was close to the Director of ASC and can "make things happen." The SARC wrote that Manager 1 continually threatened the jobs of victim advocates, saying all the ASC Director had to do was make a call and their jobs would be no more. Complainant also stated, however, that she did not believe the ASC Director knew about the extent of Manager 1's inappropriate behavior or that she used his authority as a threat to fire employees, and had he been aware he would have remedied the situation.
The SARC wrote that Manager 1 was not the supervisor for any of the SERCO Inc. contractors, despite her claim that she supervised Complainant. In her memo, Complainant referred to someone other than Manager 1 being her immediate supervisor.
Following the Agency's dismissal of her complaint, Complainant filed the instant appeal. On appeal Complainant, by and through her attorney, contends that she is supervised by Manager 1, and argues that the Agency clearly supervises low level employees performing work on its base.
In opposition to the appeal, the Agency submits another affidavit by Manager 2. In this affidavit, Manager 2 stated that some of the information in the memo of his earlier interview was incomplete and hence misleading. He stated that Manager 1 assigned cases to the Lead Victim Advocate, a SERCO Inc. employee, who then assigned cases to the individual victim advocates. He stated that FAP needed to be staffed during the core hours of 7:30 AM to 4:30 PM, and the Lead Victim Advocate monitored the hours of the individual SERCO Inc. employees. He indicated that, with the exception of having to ensure there were sufficient staffing levels, the Agency was not involved in leave decisions for SERCO Inc. employees. The Agency argues that Complainant did not report to any Agency officials.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. 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 has applied 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).
The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following:
1. The employer has the right to control when, where, and how the worker performs the job.
2. The work does not require a high level of skill or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer sets the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer.
11. The worker is not engaged in his/her own distinct occupation or 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 (i.e., the employer withholds federal, state, and Social Security taxes);
14. The employer can discharge the worker.
15. The worker and the employer believe that they are creating an employer-employee relationship.
This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 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).
Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997)(available at www.eeoc.gov.), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers. There are different types of staffing firms. Those that contract with a client to perform a certain service on a long-term basis and place its own employees, including supervisors, at the client's work site to carry out the service are contract firms. Id. at Introduction section.
The federal government may qualify as the joint employer of workers assigned them by a contracting firm if the federal agency has sufficient control over the workers, regardless of whether the worker is on the federal payroll. Id. and Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). For example, a federal agency may be considered an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, Staffing Service Work Arrangements section. The main test to determine employment status turns on whether the employer controls the means and manner of the worker's work performance. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, page 2-25.
Factors 1, 2, 10, 12 though 14 Indicate that Complainant is not an Employee
While the Agency has some elements of control in factor 1, we find overall factor 1 points to a contract relationship. Complainant asked Manager 1 to work at the MP Station which had an evening shift, which he granted, showing Agency control in where and to some extent when Complainant worked. But the record does not show that the Agency supervised Complainant's work on cases, and her performance evaluation was to be done by SERCO Inc., with little input from the Agency. Complainant did not rebut Manager 2's statement that Manager 1 gave cases to the Lead Victim Advocate, a SERCO Inc. employee, who in turn assigned them to individual advocates. While the record shows Manager 1 sometimes assigned cases to individual victim advocates, in light of Complainant's failure to rebut Manager 2, we decline to find this occurred frequently.
The work required a high level of expertise and SERCO Inc. primarily provided the training. Victim advocacy on behalf of Agency employees and their close associates is not the Agency's mission.
The Agency did not pay Complainant, provide her medical insurance, or withhold any of her taxes. SERCO Inc. approved her leave requests. Complainant does not contend that she believed the Agency was creating an employer/employee relationship. Manager 2 stated that SERCO Inc. determined whether Complainant would continue to serve the Agency, and Complainant did not rebut this.
Factors 3 through 9, and factor 11 Indicate that Complainant may be an Employee
Complainant worked on Agency premises using Agency equipment, except a SERCO Inc. provided cell phone. The Agency had some control of her hours. There was a continuing relationship between Complainant and the Agency, i.e., she worked Monday through Friday on an ongoing basis. Manager 1 was able to assign work to Complainant, such as clerical accreditation work during her first two weeks and cases at least from time to time, albeit when Complainant protested about the morning clerical work she was released from it. The record does not reflect the method of payment to Complainant, but given she had leave, the record suggests she was paid wages, not a fixed rate. Complainant did not hire assistants, and based on the record it is unlikely she was engaged in a business.
Based on the legal standards and criteria set forth herein, we find that the Agency did not exercise sufficient control over Complainant's position to qualify as her employer or joint employer for the purpose of the EEO complaint process.
Accordingly, the Agency's FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 8, 2012
__________________
Date
1 Complainant also alleged discrimination based on her age (23). Under the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., those aged 40 and over are protected from discrimination, not those under age 40.
2 SERCO Inc. lost its contract with the Agency in April 2012, after Complainant's complaint was filed, and another company won the contract. The contract was centrally managed and no one in the Fort Campbell FAP had any input on who would win the contract. The record does not reflect whether Complainant continued to serve as a Victim Advocate at the Agency after SERCO Inc. lost its contract.
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0120122211
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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