2026002138•EEOC Appeal 2026002138
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Stefan H.,1 Complainant, v. Adam R. Telle, Acting Secretary, Department of the Army, Agency. Appeal No. 2026002138 Agency No. AREUSTUT25DEC000007 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 23, 2026, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the reasons set forth herein, we VACATE the Agency’s final decision and REMAND the matter for further processing. During the period at issue, Complainant worked as Computer Support Administrator at the Agency’s U.S. Army Garrison Stuttgart in Germany through a contract between the Agency and CACI [hereinafter “Contracting Firm”]. 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.
2026002138 2 On February 19, 2026, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race (Asian), national origin (United States), color (Asian), and age (55). Complaint File at 5-6, On March 23, 2026, the Agency issued a final decision. The Agency determined that Complainant’s complaint was comprised of the following claims: [Complainant was] discriminated against [on the various bases set forth in his formal complaint]. Examples include: a. In August 2024, Complainant overheard a caller on his co- worker’s phone state “it’s like you’re speaking Chinese.” Upon ending the call his co-worker started mocking the Chinese language; b. In May 2025, Complainant overheard his co-workers talking about a Japanese ball player, afterward asked Complainant his ethnicity; c. In September 2025, his co-worker stated “[t]he ones who are stealing our technology and our secrets. You know what they are doing cause you’re a part of it.” d. While working on an employee’s computer, comments were made “[m]ust be the Chinese spies or the Chinese trying to get into my systems;” and e. While reading a news article his co-worker stated “[y]ou see what your kind are doing.”2 Complaint File at 76. The Agency dismissed Complainant’s complaint for failure to state a claim. The Agency reasoned that “in reviewing all of the ‘Ma’…factors, it is the legal opinion that the contract employee is not [an Agency] employee and is solely and exclusively an employee of CACI.” Complaint File at 76-77. The final decision 2 The record reflects that Complainant alleges numerous other incidents, not set forth in the final decision, pertaining to his harassment claim. Complaint File at 20-25.
2026002138 3 did not contain any additional analysis and did not address specific factors in reaching its determination that the Agency was not a joint employer in this matter.3 The instant appeal followed. On appeal, Complainant reiterates alleged incidents of harassment pertaining to his race and sets forth other incidents pertaining to his age.4 In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint for the reason set forth in its final decision. The Agency’s decision to dismiss a complaint is subject to de novo review by the Commission, which requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law. 29 C.F.R. § 1614.405(a). The Commission should construe the complaint in the light most favorable to the complainant and take the complaint’s allegations as true. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Thus, all reasonable inferences that may be drawn from the complaint’s allegations must be made in favor of the complainant. The issue here is whether the Agency properly dismissed Complainant’s complaint for failure to state a claim on the basis that Complainant was not its employee. EEOC Regulation 29 C.F.R. §1614.103(a) provides that complaints of 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 3 The record contains an email from an Agency Labor Counselor to an Agency EEO Manager. Therein, the Labor Counselor sets forth, without additional analysis, that he reviewed the relationship between Complainant and the Agency and it was his opinion that Complainant was not an Agency employee upon reviewing the Ma factors. Complaint File at 85. 4 Complainant asserts that a named individual asked him, many times, how old he was. Complainant states when he responded that it was not the individual’s business, the individual would state, “you’re old as fuck.” Complainant’s Statement on Appeal.
2026002138 4 covered departments, agencies, units, Part 1614 applies to all employees and applicants for employment. In Serita B. v. Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016), the Commission reaffirmed its longstanding position on “joint employers” and noted that 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 1, 2000) (Compliance Manual); 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. Dept of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in this decision. Agencies often conclude that an individual is not an employee based solely on the fact that the individual performs work pursuant to a contract between the federal government and an outside organization and the outside organization, not the federal government, controls the pay and benefits of that individual. See e.g. Helen G. Dep’t of the Army, EEOC Appeal No. 0120150262 (Feb. 11, 2016); Nicki v. B. v. Dep’t of Educ., EEOC Appeal No. 0120151697 (Feb. 9, 2016). These elements are, however, just two of the factors relevant to joint employment under the Commission’s long-standing position and it is not at all surprising that they would be present when an individual working under a federal contract for a federal agency raises a complaint of discrimination. 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
2026002138 5 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. 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 (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
2026002138 6 & 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). The record is not sufficiently developed to make a determination as to whether the Agency is a joint employer for the purpose of using the 29 C.F.R. Part 1614 complaint process. The sparse record before us does not contain a copy of the relevant contract and/or Task Order between the Contracting Firm and the Agency. The record also does not contain any affidavits from relevant Agency officials, such as the Contracting Officer Representative, addressing the factors set forth in this decision as to whether the Agency is a joint employer in this matter.5 In cases involving allegations of harassment and whether the agency should be deemed a joint employer, we have given significant weight to whether the alleged harasser was an employee of the Agency or the contractor and whether the Agency or contractor conducted an independent investigation. See Simone J. v. Dep’t of the Army, EEOC Appeal No. 2023004500 (Feb. 13, 2025) (finding the agency a joint employer when complainant’s alleged harasser, an agency employee, was also the Quality Assurance Representative for the project and had ongoing contact with complainant); Takako Y. v. Dep’t of Defense, EEOC Appeal No. 2023001125 (April 12, 2023) (finding the agency was not a joint employer of the contractor reasoning, in pertinent part, that the complainant’s harassment claim involved two 5 We acknowledge that the record contains a document entitled “EEO Joint Employer Guidance-Working Relationship Information.” Complaint File at 89-92. The document is not signed, however, and we cannot clearly ascertain who submitted the responses in this document. As set forth above, the record also does not contain supporting documentation such as the Contract and/or Task Order.
2026002138 7 employees of the contractor as the alleged harassers and the contractor conducted an independent investigation). The record does not contain an affidavit from Complainant clearly identifying whether the individuals he named as being involved in the allegations are contractors and/or Agency employees.6 In addition, the record does not contain affidavits from other Agency personnel indicating whether Complainant reported his allegations of harassment to Agency management officials and whether the Agency conducted an independent investigation.7 Finally, the record does not contain any affidavits from officials with the Contracting Firm addressing whether Complainant reported the alleged harassment to Contracting Firm personnel and whether the Contracting Firm performed its own independent investigation of Complainant’s allegations.8 Accordingly, we VACATE the Agency’s final decision dismissing Complainant’s complaint, and we REMAND this matter to the Agency for a supplemental investigation in accordance with the Order below. See Simone J. v. Dep’t of the Army, EEOC Appeal No. 2023000012 (March 14, 2023) (vacating agency’s final decision and remanding the matter for a supplemental investigation reasoning the record was not sufficiently developed to make a reasoned determination as to whether the agency should be deemed a joint employer). 6 Complainant generally describes the alleged discrimination as “prevalent” and that it involves “all members, government civilians, contractors, and military”. Complaint File at 25, 30. 7 The record contains some emails reflecting that Complainant discussed his harassment allegations with some Agency military officials. Complaint File at 49- 52. However, we are unable to clearly ascertain from the record all the relevant officials, from either CACI and/or the Agency, to whom Complainant reported the alleged harassment. Additionally, while the EEO Counselor’s Report reflects that the EEO Counselor interviewed some of the individuals Complainant identified as being involved with his allegations of harassment (Complaint File at 15-16), we are unable to ascertain based on the record before us whether Agency officials conducted an independent investigation pertaining to Complainant’s allegations. 8 The record does not contain any information as to the Contracting Firm’s harassment policy, if applicable, covering its personnel.
2026002138 8 ORDER Within sixty (60) calendar days from the date the decision is issued, the Agency is ORDERED to take to take the following actions: 1. Conduct a supplemental investigation to obtain evidence consistent with this decision and relevant in assessing whether the Agency is a joint employer for EEO purposes. The Agency shall obtain an affidavit from Complainant addressing the factors set forth herein regarding whether the Agency was a joint employer in this matter. Complainant’s affidavit shall also address the alleged incidents comprising his harassment claim. Complainant shall identify the individuals who engaged in the alleged harassing conduct and identify whether they are contractors and/or employees of the Agency (to the extent Complainant may not know whether the individuals are contractors or Agency employees, the Agency shall clarify this information in the supplemental investigation). Complainant shall also identify the individuals to whom he reported the alleged harassment and clearly set forth whether these individuals work for the Contracting Firm and/or whether they are Agency employees. 2. The Agency shall also include, in its supplemental investigation, affidavits from relevant Agency officials, including the Agency’s Contracting Officer Representative, regarding whether the Agency exercised sufficient control over Complainant’s position for it to be deemed a joint employer. In addition, the supplemental investigation shall include affidavits from other relevant Agency personnel identified in Complainant’s affidavit. Affidavits from Agency management officials shall address if the Agency conducted its own investigation regarding Complainant’s allegations of harassment. 3. The Agency, as part of its supplemental investigation, shall also obtain affidavits from relevant officials with the Contracting Firm, CACI, addressing whether Complainant reported the alleged harassment to CACI personnel and/or Agency personnel. The affidavits shall address whether CACI officials conducted their own investigation pertaining to Complainant’s harassment allegations. In addition, the supplemental investigation shall obtain from CACI a copy of its harassment policy and/or training which covers its personnel.
2026002138 9 4. The supplemental investigation shall supplement the record with a copy of the contract and/or Task Order between the Agency and CACI. 5. The Agency shall issue a new final decision dismissing the formal complaint, with appeal rights to the Commission, or a letter accepting Complainant’s complaint for investigation. 6. A copy of the supplemental investigation and new dismissal letter or letter of acceptance shall be provided as set forth below in the section entitled “Implementation of the Commission’s Decision.” IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
2026002138 10 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1125) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Sector (OFS) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Sector, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFS receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
2026002138 11 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0124) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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 their 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. 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.
2026002138 12 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: T. Gimbrere _________________________ Gul Chaudhry’s signature T. Gimbrere, Acting Director Office of Federal Sector October 5, 2026 Date
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