EEOC Appeal 2020001591

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bryan R.,1
Complainant,
v.
Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Citizenship and Immigration Services (USCIS)),
Agency.
Appeal No. 2020001591
Agency No. HS-CIS-01636-2019
DECISION
On December 20, 2019, Complainant timely filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final Agency decision dated November
21, 2019, dismissing his 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for Staffing Firm 1 serving
the Agency as a Junior Information Technology (IT) Engineer at the USCIS Miami Asylum Office
in Miami, Florida.
On August 5, 2019, Complainant filed an equal employment opportunity (EEO) complaint alleging
that the Agency subjected him to discrimination and harassment based on his race (Caucasian),
national origin (Hispanic/Latino), disability, and reprisal for prior protected EEO activity when on
May 31, 2019, he was terminated.
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.

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The Agency dismissed the complaint for failure to state a claim because Complainant was not its
employee. The instant appeal followed.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant’s complaint for
failure to state a claim on the basis that he 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 therewith.
In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016),
the Commission 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)2; 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.
The term “joint employer” refers to two or more employers that each exercise 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.
2 The EEOC Compliance Manual and other guidance documents, as well as federal-sector
appellate decisions, are available online at www.eeoc.gov.

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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. 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.
USCIS has a large contract with a general contractor to provide a broad range of IT support
services to all USCIS end users throughout the country, including the Miami Asylum Office.

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Under the contract, the general contractor must ensure that all contract IT staff have required
professional certifications and do required training. The contract permits the general contractor to
use subcontractors, albeit it is still responsible to ensure contract requirements are met.
Complainant states that he hired by Staffing Firm 1, located in Hunt Valley, Maryland to serve at
the USCIS Miami Asylum Office, and Staffing Firm 1 instructed him to report to Staffing Firm 2.
It was apparently onsite at the Miami Asylum Office. Complainant contends that he received all
his work instructions from Staffing Firm 2, it assigned him his daily work and how it wished it to
be completed, set his deadlines, advised him on his performance and demeanor, set his work hours,
and terminated him. He contends that the Agency, through its “agent” Staffing Firm 2, controlled
his employment, and because Staffing Firm 1 only took care of his compensation, he was jointly
employed by Staffing Firm 1 and the Agency.
Assuming without finding at this stage of the process that Complainant’s factual contentions are
true, he advanced evidence showing that he is jointly employed by Staffing Firms 1 and 2, not by
Staffing Firm 1 and the Agency. The record does not show that the Agency had sufficient control
over Complainant’s employment to be his common law joint employer.
The FAD is AFFIRMED.
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.

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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 (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 (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
June 30, 2020
Date