EEOC Appeal 2026002632

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Fredrick T,1
Complainant,
v.
Troy E. Meink,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 2026002632
Agency No. PRE009092026L26
DECISION
Complainant 	filed 	a timely 	appeal 	with the Equal Employment 	Opportunity
Commission (EEOC or Commission) from the Agency's decision dated April 27,
2026, 	dismissing 	his 	complaint 	of 	unlawful 	employment 	discrimination 	in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Senior
Software Engineer, Contractor, for Torch Technologies, at the Agency’s Joint Base
San Antonio Randolph facility in San Antonio, Texas. 	On April 15, 2026,
Complainant 	contacted 	the 	Agency’s 	EEO 	office 	alleging 	that 	the 	Agency
subjected him to discrimination2 on the basis of disability. On April 27, 2026, the
Agency sent Complainant an email notifying him that he should file his complaint
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.
2 The Agency EEO office did not generate an Informal complaint report identifying
the claim(s) or the nature of Complainant’s disability.

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directly with Torch Technologies (Torch) and not the Agency. By follow-up email
dated May 4, 2026, the Agency specified that the April 27th email should be
viewed as the Agency’s Final Agency Decision (FAD). 	Complainant’s appeal
followed.
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
covered departments, agencies, and units, Part 1614 applies to all employees and
applicants for employment.
In 	Serita 	B. 	v. 	Department 	of 	the 	Army, 	EEOC 	Appeal 	No. 	0120150846
(November 10, 2016), the Commission reaffirmed its longstanding position on
“joint employers,” which it noted is found in numerous sources. See, e.g., EEOC
Compliance Manual, “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. Dep’t 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.
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. 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 codetermine those
matters 	governing 	essential 	terms 	and 	conditions 	of employment”’) (quoting

2026002632	3
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 recon. 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

2026002632	4
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.
In particular, 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.
Here, in finding that Complainant was not a joint employee of the Agency and
Torch, the Agency’s decision fell short of the required analysis and lacked
sufficient support. The dismissal itself contains no analysis of the Ma factors or our
guidance outlined in Serita B., discussed above. Although the Agency provided
some analysis on appeal, in reviewing the record, the Agency surveyed only
Complainant as to the Ma factors, and that statement is not signed or sworn.
Complainant mentioned that his “day-to-day direction comes entirely from the
government. My civilian lead, civilian branch chief, and civilian engineering lead
direct my work . . . 	My Torch supervisor provides no substantive direction.” The
record contains no statement from either Complainant’s Torch Supervisor or his
Agency Supervisor and there is no indication from the record that the Agency even
sought such statements. The record also does not contain the contract between the
Agency and Torch, or any statements of work. While Complainant ultimately bears
the burden to prove discrimination, it is the burden of the Agency to have evidence
or proof in support of its final decision. See Marshall v. Dep't of the Navy, EEOC
Request No. 05910685 (Sept. 6, 1991). The Agency has not met its burden here.
Based on the foregoing, we find that the record is not sufficiently developed to
make a reasoned determination as to whether the Agency is a joint employer for
the purpose of using the 29 C.F.R. Part 1614 complaint process.

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Accordingly, 	we 	VACATE 	the 	Agency's 	FAD 	dismissing 	Complainant's
complaint, and we REMAND this matter to the Agency for a supplemental
investigation in accordance with the Order below.
ORDER
Within sixty (60) calendar days from the date this decision is issued, the Agency is
ORDERED 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 evidentiary record shall include, but is not limited to,
affidavits from Complainant, the Contracting Officer Representative Agency
management officials, including the individuals identified by Complainant
as his “Air Force Supervisor (civilian lead)”, the Branch Chief, and the
Agency Engineering Lead, detailing who had actual “real life” control of
Complainant's 	position 	and 	day-to-day 	work 	and 	explaining 	what
“guidance” was provided to Complainant from the Agency on the services
he was expected to provide under the contract, as well as copies of contracts
and/or statements of work between the Agency and Torch. The Agency shall
then provide Complainant with an opportunity to provide a response to the
new evidence.
2. Once the supplemental investigation is completed, the Agency shall either
issue 	a 	new 	final 	decision 	dismissing 	the 	formal 	complaint, 	with 	an
appropriate analysis of relevant facts with appeal rights to the Commission,
or a letter accepting Complainant's complaint for investigation.
3. 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

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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.
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.

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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.
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).

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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. 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 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 16, 2026
Date