On January 28, 2015, the EEOC’s Office of Federal Operations (OFO) in Complainant v. Dept. of the Air Force, EEOC Appeal No. 0120142407 found that the complainant was able to press a discrimination complaint against the Department of the Air Force through the federal-sector EEO process.
The complainant was employed directly by a contracting company at an Air Force facility in Mississippi. The complainant attempted to initiate an EEO complaint against the agency in 2011, but was turned away by the agency’s EEO office. The complainant again attempted to initiate an EEO complaint in 2014 against the agency, alleging race discrimination and reprisal through harassment, several reassignments, and ultimately through reduction of the complainant’s shift hours to zero (effectively constructively discharging the complainant) effective 2012. The agency’s EEO office dismissed the complaint for failure to state a claim, citing the fact that the complainant was not an agency employee, claiming that the harassment incidents were insufficient to state a hostile work environment claim, and asserting that the complaint was untimely as not having been initiated until 2014. The complainant appealed this dismissal to OFO.
On appeal, OFO reversed the agency’s dismissal of this 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 a “joint employer” relationship of the complainant, and thus able to sue the agency as their ’employer’ through the federal-sector 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 the complainant’s case, OFO found that 9 Ma factors indicated that the agency was the complainant’s joint employer; 4 Ma factors indicated against the complainant being found an agency employee, and 3 Ma factors were either inconclusive or went both ways. As a result, OFO found that the complainant was supervised enough by the agency for the agency to be a ‘joint employer’ such as to allow the complainant access to the federal-sector EEO process.
OFO found that the alleged incidents of harassment cited by the complainant were sufficient to allege a hostile work environment claim. OFO further rejected the agency’s claim that the complainant had only initiated an EEO complaint in 2014, relying on a contemporaneous document signed by a member of the agency’s own EEO office staff confirming the complainant’s 2011 visit to the EEO office. The complainant had produced this document to the agency’s EEO office prior to its dismissal of the complainant’s EEO complaint 2014, but the agency ignored this document in its dismissal. OFO criticized the agency for turning away the complainant in 2011, noting that under EEOC regulations, the complainant—even as a contractor—was entitled to go through the informal complaint process and that any complaint dismissal due to the complainant’s status as a contractor should only have occurred after the complainant had filed a formal complaint. Accordingly, OFO reversed the dismissal of the complainant’s EEO complaint and remanded it to the agency for investigation.
The complainant was represented by Passman & Kaplan, P.C. Founding Principal Joseph V. Kaplan and P&K Senior Associate Andrew J. Perlmutter.
* This information is provided by the attorneys at Passman & Kaplan, P.C.