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Developments at the EEOC: EEOC Overturns Dismissal in Passman & Kaplan Case

Developments at the EEOC: On January 28, 2015, the EEOC's Office of Federal Operations (OFO) issued its decision in Complainant v. Dept. of the Air Force, EEOC Appeal No. 0120142407. OFO found that the Complainant, a federal contractor, was able to press a discrimination complaint against the Air Force (Agency) through the federal-sector EEO process.

Complainant was employed directly by a contractor at an Agency facility in Mississippi. Complainant attempted to initiate an EEO complaint against the Agency in 2011, but was turned away by the Agency's EEO office. Complainant again attempted to initiate an EEO complaint in 2014 against the Agency, alleging race discrimination and reprisal through harassment, several reassignments, and by reducing her hours to zero, effectively discharging her in 2012. The Agency's EEO office dismissed the complaint for failure to state a claim, citing the fact that Complainant was not an Agency employee and 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.

On appeal by Passman & Kaplan, OFO reversed the Agency's dismissal of this complaint. OFO noted that the federal-sector EEO process also covers contract employees who are under enough supervision by the Agency they are deemed  "joint employees" of the Agency and the contractor. 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), including, as examples: who controls when, where, and how the worker performs the job; who furnishes the tools, materials, and equipment; if the work is performed on the agency's premises; and who sets the hours of work and the duration of the job.

Applying these Ma factors to the Complainant's case, OFO found that 9 of the Ma factors indicated that the Agency was Complainant's joint employer.

OFO found that the alleged incidents of harassment were sufficient to allege a hostile work environment claim. OFO further rejected the Agency's claim that 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 Complainant's 2011 visit to the EEO office. OFO criticized the Agency for turning away Complainant in 2011, noting that under EEOC regulations, Complainant-even as a contractor-was entitled to go through the informal complaint process and that any complaint dismissal due to Complainant's status as a contractor should only have occurred after Complainant had filed a formal complaint. Accordingly, OFO reversed the dismissal of Complainant's EEO complaint and remanded it for investigation.

Complainant was represented by Passman & Kaplan, P.C. Founding Principal Joseph V. Kaplan and P&K Senior Associate Andrew J. Perlmutter.

If you are a federal employee with a discrimination complaint, and wish to discuss your rights, please consider contacting Passman & Kaplan, P.C. to request an initial consultation.

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