0120103404
10-10-2012
Paul C. Good, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Paul C. Good,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120103404
Agency No. 10-61331-01654
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated August 2, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Assurance (IA) Officer at the Agency's Naval Surface Warfare Center (NSWC), Panama City Division (PCD), in Panama City, Florida. NSWC PCD is a Navy Research and Development (R&D) Laboratory. The R&D Lab is a collection of computers used in the Test and Evaluation Facility (T&E Facility) Lab by government test engineers. During the relevant time, Person A was the Head, Test Engineering Branch, for the NSWC. The Test Engineering Branch was responsible for conducting all tests at NSWC PCD in the T&E Facility Lab.
On June 7, 2007, the Agency competitively awarded contract number N000178-04-D-4016 (HR13) to ARINC Engineering Services of Annapolis, Maryland to provide various support to the T&E Facility Lab. Under the contract, ARINC was to provide engineering and technical support for the test engineering branch. The statement of work (SOW) states ARINC would supply information assurance (IA) support to the T&E Facility Lab. Person A was appointed by the Agency to serve as the Contracting Officer Representative (COR). Person B was appointed by ARINC as the T &E Manager under the contract.
Complainant filed a formal complaint dated April 14, 2010, alleging that the Agency subjected him to discrimination on the bases of disability when he was not provided reasonable accommodations from December 2009 to January 2010. Complainant also alleged that he was discriminated against in reprisal for complaining about not receiving reasonable accommodations when Person A allegedly had him terminated by ARINC on February 2, 2010.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that Complainant is not an employee of the Agency and does not have standing to pursue his discrimination complaint.
On appeal, Complainant contends he was jointly employed by the Agency and ARINC. Complainant claims that both the Agency and ARINC exerted control and direction over his daily work assignments, the timing of the work, whether or not he had an assistant, and whether he could continue to work on the base, which he characterizes as a decision to hire or fire him.
In response to Complainant's appeal, the Agency states that Complainant was hired by ARINC with no involvement of the Agency. The Agency notes that Complainant worked for the Agency prior to the award of the present contract. The Agency states that ARINC paid Complainant's salary, social security and insurance, benefits, and leave. The Agency states it was not the intent of the Agency that Complainant become an employee of the Agency. The Agency states that Person B and not Person A supervised the day to day activities of Complainant. Moreover, the Agency states Person A did not bar Complainant from entering the base and notes Complainant is currently working at NSWC PCD as an employee of defense contractor BAE Systems.
The Agency acknowledges it provided a workstation at NSWC PCD for Complainant and Person B. The Agency claims that due to network security issues, ARINC employees providing IA support under the contract worked on site and were provided Agency information technology (IT) assets. The Agency states that ARINC employees were required to display a green identification card that identified them as ARINC employees. Further, the Agency states that their electronic mail addresses identified them as contractors.
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 Commission has applied the common law agency test to determine whether an individual is an agency employee. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (March 16, 2006); Ma v. Dep't of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)). Specifically, the Commission will look to the following non-exhaustive list of factors:
1. the extent of the employer's right to control the means and manner of the worker's performance;
2. the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision;
3. the skill required in the particular occupation;
4. whether the employer or the individual furnishes the equipment used and the place of work;
5. the length of time the individual has worked;
6. the method of payment, whether by time or by the job;
7. the manner in which the work relationship is terminated, i.e., by one or both parties, with or without notice and explanation;
8. whether annual leave is afforded;
9. whether the work is an integral part of the business of the employer;
10. whether the worker accumulates retirement benefits;
11. whether the employer pays social security taxes; and
12. the intention of the parties.
See Ma., EEOC Appeal No. 01962390.
Not all or even a majority of the listed criteria need be met. The above factors are designed to determine 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, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Furthermore, under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997) (hereinafter referred to as the "Guidance") (available at www.eeoc.gov.), we have also recognized that a "joint employment" relationship may exist where both the agency and the "staffing firm" may be deemed employers. Similar to the analysis set forth above, a determination of joint employment requires an assessment of the comparative amount and type of control the "staffing firm" and the agency each maintain over complainant's work. Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the Ma criteria, whether or not the individual is on the federal payroll. See Guidance, supra at 11.
In this case, it is clear that Complainant was hired by ARINC, a firm that provided engineering and technical support for the Agency's test engineering branch under the contract. The question is whether, under the Ma factors, the Agency can be considered Complainant's joint employer.
Upon review of the record, we find that factors (3), (4), and (5) indicate that Complainant is a joint employee of the Agency. In contrast, we find that factors (1) - (2), (6), (8), (9), (10) - (12) indicate that Complainant is not an employee of the Agency. See Feder v. Department of Justice, EEOC Appeal No. 0720110014 (July 19, 2012). We will address each factor in detail below.
Factors Indicating Complainant May Be a Joint Employee of the Agency
During the relevant time, the Agency was moving its T&E Facility Lab from a non-R&D network to an R&D network. The Agency notes that Complainant was part of a larger ARINC team that helped the T&E Branch with the transition from a non-R&D network to an R&D network. The Agency stated, without dispute from Complainant, that Complainant was not a specialist (factor 3). The record reflects that the Agency provided Complainant a workstation with government issued computers at NSWC PCD since he needed access to the government network to complete his IA tasks (factor 4). Person A stated that because of network security restrictions, these items had to be provided by the government and could not have been provided by ARINC. Additionally, we note that Complainant provided IA services for the Agency from June 2007, through February 2010, indicating a continuing relationship (factor 5).
Factors Indicating Complainant May Not Be a Joint Employee of the Agency
The record reveals that under the contract, the parties' intention was for Complainant to be solely an employee of ARINC (factor 12). For example, the Delivery Order shows that the contract is for ARINC, not Complainant, to provide services for engineering and technical support for the Agency's Test Engineering Branch from June 7, 2007, for a period of one year and may continue for up to five years based on the contractor's performance (through June 6, 2012). We note Complainant's name was not included anywhere in the contract. Moreover, the record reveals Complainant was hired by ARINC as a Systems Administrator on September 11, 2000, seven years prior to the start of the present contract. We note the record also contains an affidavit from Person C, Branch Head, Acquisition Services Division, who was the contracting officer involved. Person C stated under the contract, there was no intent by the Agency that any ARINC personnel, including Complainant, be considered an employee of the Agency.
The Agency notes that Person B, an ARINC official, was provided a workstation at its facility. The Agency notes that Person B was a full-time, on-site supervisor of Complainant. Thus, we find Complainant's work was done under the direct supervision of Person B (factor 2).
Additionally, the record reflects that Complainant was paid by ARINC (factor 6). ARINC was also responsible for approving Complainant's leave and determining the number of paid holidays Complainant received (factor 8). Complainant was not entitled to participate in the Agency's retirement plans (factor 10); did not accumulate leave from the Agency (factor 8); and the Agency did not withhold income or social security taxes (factor 11).
With regard to factor 9, the Agency stated that the work Complainant performed was not an integral part of the Agency's business but was only a surge capability. The record reveals the Agency was a Navy Research and Development Laboratory. At the time of the contract, the Agency's T&E Branch was transitioning from a non-R&D network to an R&D network. In his affidavit, Person B noted there were no available in-house personnel to meet the surge requirement and thus, IA Officers were needed to assist in this task.
With regard to factor 1, Complainant alleged that the Agency exerted control and direction over his daily work assignments, timing of work, and whether he had an assistant. Complainant stated that in March 2007, he informed Person A of his diabetes when he asked for the reasonable accommodation of not working overtime. Complainant stated that in the spring of 2007, he asked to take off several times under his doctor's orders. He noted that at that time, Person A provided some additional help and accommodated him for a short while. Complainant also stated that in October 2009, Person A went out of his way to make Complainant's job harder by increasing his work load and demanding a faster turn-around. Additionally, Complainant claimed that after he requested more help with his workload, his ARINC supervisor told him that Person A said he could not have assistance and that it was the Agency's decision. Complainant alleged that Person A made him work faster, work longer hours, and left him working alone. Complainant also stated that in January 2010, he was pulled off providing technical work and left only to upload all of his work product and written materials for others to use. Complainant stated that he questioned ARINC about why he was not doing any more technical work and ARINC told him that Person A directed that no more technical work be assigned to Complainant.
However, the Agency presented evidence to the contrary regarding factor 1. Specifically, we note that in his affidavit, Person A stated that as the T&E Manager of the contract, Person B was responsible for supervising the day to day activities of the ARINC employees that worked in the T&E Lab. Person A noted that Person B was located on-site in the same building as Complainant on a full-time basis during the time Complainant worked there. Person A stated that Person B met with Complainant regularly and set his hours and schedule and tasked Complainant with assignments. In his affidavit, Person A stated that he did not exercise any control over the day-to-day activities of Complainant. He stated that he did not review Complainant's day-to-day work and noted that ARINC was responsible for the quality of Complainant's work. Person A noted that work assignments were distributed to Complainant by his supervisor, Person B. Person A stated that if an issue arose with work done by an ARINC employee, he would raise the issue with Person B and/or the Government Contracting Officer. Person A acknowledged he occasionally interfaced with ARINC employees and provided ARINC employees with points of clarification when asked, but he stated that all tasking and final resolution of any issues associated with tasking always came from Person B. Person A stated he did not task any individual ARINC employee with work. Person A also stated that he was not involved in Complainant's performance evaluation and had no authority to discipline Complainant.
Moreover, in his affidavit Person A stated that Complainant never told him he felt he was being overworked or that too much work made him sick. Person A noted that Person B never told him that Complainant felt he had too much work. Person A also stated that Complainant never requested from him any accommodations such as less hours or an alternate work schedule and he stated Person B never relayed such a request to him. Person A also noted that Person B never asked him to put extra people on a job to help Complainant. Person A reiterated that he never personally tasked or monitored Complainant's work load, and as a result he stated he could not have intentionally increased Complainant's workload. Finally, Person A stated he never directed ARINC that no more technical work be assigned to Complainant.
Following a review of the record, the Commission finds that Complainant has not met his burden of establishing that the Agency exercised sufficient control over his activities (factor 1). Complainant has provided no evidence, such as affidavits from coworkers for example, to support any contention that the real control over Complainant rests with the Agency. Stalnaker v. Department of the Navy, EEOC No. 0120110763 (May 5, 2011), request for reconsideration denied, 0520110489 (September 22, 2011).
Factor 7
With regard to factor 7, Complainant alleged that the Agency determined whether he could continue to work on base, which he classified as essentially a hire or fire decision.
In contrast, Person A stated he did not request that ARINC fire Complainant and was not involved in the decision to terminate Complainant. Person A noted that he was not made aware of ARINC's intention to fire Complainant prior to Complainant's actual termination. Moreover, the record indicates that following his termination, Complainant worked on NSWC PCD as an employee of defense contractor BAE Systems.
Additionally, we note that the record contains two Interoffice Memorandum from ARINC's Senior Manager, SE Human Resources to Complainant both dated February 2, 2010. The first memorandum contains the subject "Complaint Investigation Summary" and addresses Complainant's contention that he was subjected to discrimination or harassment by Person B based on his disability and in reprisal for filing a complaint. In that memorandum, the Agency notes that Person B and Person D (Senior Manager from ARINC) indicated that "the customer was unhappy with the support that [Complainant was] providing both in network support and operational readiness." The memorandum notes that on January 11, 2010, ARINC received a "customer request" to remove Complainant and on January 15, 2010, the "customer" was informed of Complainant's complaint. The memorandum notes that the customer's decision to remove Complainant from his position was made prior to the time the customer was informed of Complainant's complaint. The second Interoffice Memorandum contains the subject "Termination of Employment" and stated that on January 11, 2010, "ARINC's customer requested [Complainant's] removal from [the contract]." We note these two memorandum indicate that the Agency may have had influence in terminating Complainant.
Based on the conflicting evidence in the record, we are unable to determine whether the Agency had a role in eliminating Complainant's position. Accordingly, factor 7 does not point in any direction.
On the balance of the evidence and a weighing of the Ma factors, we find the Agency did not exercise sufficient control over Complainant's job to qualify as employer or joint employer for the purpose of the EEO federal sector process. See generally, Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). Despite the fact that the Agency provided Complainant a workstation with government issued computers and there was a continuing work relationship between Complainant and the Agency, we find these factors (3, 4, and 5) do not outweigh the other factors which indicate that Complainant is not an employee of the Agency.
CONCLUSION
Accordingly, the Agency's final decision 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
October 10, 2012
__________________
Date
2
01-2010-3404
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103404