On December 12, 2012, the EEOC’s Office of Federal Operations (OFO) issued its decision in Makuch v. Dept. of Defense, EEOC Appeal No. 0120114324. OFO found that Makuch was able to press a discrimination complaint against the Department of Defense (Agency) through the federalsector EEO process.
Makuch was an employee of a nonprofit organization. From September 2010 to November 2011, Makuch was working as a liaison officer with the agency in Afghanistan under an Intergovernmental Personnel Act (IPA) agreement. During this period Makuch allegedly suffered sex discrimination and reprisal, prompting her to file a federal-sector EEO complaint against the agency. The agency dismissed Makuch’s complaint on the grounds that Makuch was not a federal employee, but instead an employee of her nonprofit organization, and so could not file a complaint against the agency through the federalsector EEO process. Makuch appealed this dismissal to OFO.
On appeal, OFO reversed the agency’s dismissal of Makuch’s complaint. OFO noted that the federal-sector EEO process is not limited to direct civil service employees of the agency, and that persons (such as contract employees) who are under enough supervision by the agency can also be deemed ‘employees’ ‘co-employed’ by the agency, and thus able to sue the agency as their ‘employer’ through the federalsector EEO process.
The test used by OFO is highly fact-specific, applying the 15 non-exclusive factors identified in Ma v. Dept. of Health and Human Services, EEOC Appeal Nos. 01962389, 01962390 (May 29, 1998):
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.
Applying these factors to Makuch’s case, OFO found that 10 of the factors indicated that the agency was supervising Makuch, directing her work, controlling her work environment and providing her resources. In contrast, only three factors indicated against Makuch being found an agency employee. As a result, OFO found that Makuch was supervised enough by the agency for her to file an employment discrimination complaint against the agency, and so should have access to the federal-sector EEO process. Accordingly, OFO reversed the dismissal of Makuch’s EEO complaint and remanded it to the agency for investigation.
* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.
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