By Meghan Droste, July 21, 2021
Repetition can be a good thing. That’s why practice makes perfect, and you measure twice before cutting once. We repeat things to make sure we get them right. But repetition isn’t always a good thing. Sometimes, it means that we’re not learning from our mistakes. And in a recent decision, it seems like the Commission may be tired of repeating itself on the issue of agencies improperly dismissing complaints from contractors.
In Alfredo S. v. Department of the Army, EEOC App. No. 2021001400 (June 7, 2021), the complainant was a Lockheed Martin employee working on a military base. He filed an EEO complaint alleging a hostile work environment and a discriminatory termination of his employment. The agency dismissed the complaint without an investigation in a decision that did not describe “any relevant facts, case law, or analysis …” The agency merely stated that the complaint failed to state a claim because the complainant was not an employee or applicant for employment.
After reciting the standard description of joint employment and the various factors it weighs in determining whether an agency is a joint employer, while also noting that the agency “has not even touched on any supportive evidence in its decision,” the Commission took issue with having to repeat itself in these types of improper dismissals. It notes that “[t]his is not the first time a dismissal for lack of standing, by this Agency, has been found to be deficient.” (emphasis in original). The Commission addressed the agency’s analysis of the joint employment factors, presented for the first time in its response to the complainant’s appeal. The Commission rejects the analysis, finding it insufficient and not supported by the evidence presented in the appeal. In part, the agency’s argument failed because it did not conduct an investigation and, therefore, did not have relevant documents to support its arguments, including a copy of the contract with Lockheed Martin and documents relating to an earlier complaint raised by the complainant.
Although, in this decision, the Commission is taking issue with this specific agency, it could write the same thing in reference to many other agencies. Unfortunately, this remains a recurring mistake across the federal government, with agencies seemingly automatically dismissing complaints from contractors without any analysis, or with an analysis that places too much emphasis on the language of a contract and fails to acknowledge or address the day-to-day reality of a complainant’s work situation. There are at least seven other decisions already this year involving the same issues with other agencies.
I strongly encourage you not to repeat this mistake as so many others have already. It is not a winning strategy. It only results in delaying the inevitable — a complete investigation of the complainant’s allegations along with evidence regarding joint employment. Droste@FELTG.com