EEOC Appeal 2026002138

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.

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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.

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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.

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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

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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

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& 	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.

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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.

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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.

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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.

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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.

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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