Agency Found to Be a Joint Employer

On May 11, 2010, the Equal Employment Opportunity Commission's Office of Federal Operations in Carranza v. Dept. of the Army, EEOC Appeal No. 0120092727, found that the agency constituted a joint employer of Carranza, allowing her case to go forward.

Carranza worked as an executive assistant at an agency facility in Balad, Iraq. Honeywell Tech Services International had a contract with the agency to provide support services in Balad, and Carranza was working in connection with that contract. In September 2008, Carranza was removed from her position. In April 2009, Carranza filed an EEO complaint with the agency alleging that she had been subjected to a hostile work environment culminating in her removal on the basis of age. In May 2009, the agency issued a final agency decision dismissing Carranza's complaint for failure to state a claim upon which relief could be granted. The agency's proffered grounds for dismissal were that Carranza was a contract employee, and therefore Honeywell—not the agency—was responsible for her employment decisions. Carranza then appealed to the Commission.

In its decision, the Commission reversed the agency's dismissal, finding that the agency and Honeywell were joint employers of Carranza. Under the Commission's precedent, the test for whether or not a complainant is an "employee" for purposes of jurisdiction in an EEO complaint is defined not by formal appointment, but instead under common law rules of 'agency'. Under this doctrine, a federal agency and a contractor, for purposes of EEO liability, are considered to jointly employ a contract employee under appropriate circumstances. In applying this common law doctrine, the Commission looks to a non-exhaustive set of factors which generally pertain to the level of control each of the two 'employers' exercises over the contract employee's position.

In Carranza's case, the Commission relied on several facts to determine that the agency was a joint employer of Carranza: Carranza's agency supervisor controlled the means and manner of Carranza's work; the agency provided Carranza's worksite, materials, equipment and supplies; and of greatest importance to the Commission, Carranza alleged that her agency supervisor was the manager who was directly responsible for her removal. The Commission rejected the agency's argument that Honeywell had retained the direct removal authority over Carranza and therefore it could not be a joint employer. The Commission relied on the fact that all of the alleged discriminatory incidents cited by Carranza in her complaint were the result of the actions of Carranza's agency supervisor and not of managers from Honeywell. The Commission accordingly reversed the final agency decision, and remanded Carranza's complaint 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.