Two battalion chiefs assigned to the fire department at NASA’s Ames Research Center in Mountain View, California have lost a discrimination and retaliation lawsuit against NASA after a federal court concluded that NASA was neither their employer nor their joint-employer.

The case involved Battalion Chiefs Cameron Gazaway and Robert Wilson, who worked for a contractor at the Ames Research Center, Fiore Industries. Both men began their fire service careers at the facility in 1994. Chief Gazaway, an African American and Messianic Christian, was promoted to BC in 2001. Chief Wilson, who is white and does not practice a religion, was promoted to BC in 1999.

NASA contracts with private companies to provide fire protection services at Ames. During the period relevant to the lawsuit, Fiore Industries provided those services through a subcontract arrangement with American Paragon Protective Services (APPS). The battalion chiefs were employed by Fiore.

According to the lawsuit, the chiefs experienced discrimination, harassment, and retaliation between 2018 and 2022. They alleged that Fire Chief William Bonner, a Fiore employee, and NASA official Keith Siuda engaged in discriminatory conduct based upon age, race, and religion. The chiefs complained to members of Congress, NASA management, Fiore, and NASA’s Office of Diversity and Equal Opportunity.

A central dispute arose when NASA implemented a new regional fire services contract covering several NASA facilities. The contract required battalion chiefs at Ames to possess an associate degree or higher in fire science. Although both plaintiffs held associate degrees and had completed fire science coursework, neither possessed an associate degree specifically in fire science.

The chiefs alleged that Siuda inserted the educational requirement into the new contract knowing they did not meet it. They further claimed that NASA refused to grant them a waiver or extension despite their efforts to obtain the required degree.

Both battalion chiefs were terminated on September 30, 2022, one day before the new contract took effect. They contended that their terminations were retaliation for their complaints of discrimination and harassment.

The lawsuit named the Administrator for the National Aeronautics and Space Administration, Jared Isaacman, asserting claims for age discrimination under the Age Discrimination in Employment Act, race and religious discrimination under Title VII, hostile work environment, retaliation, and wrongful termination.

Before the court could consider whether any discrimination occurred, NASA argued that the court lacked subject matter jurisdiction to hear the case. The court explained that the United States and its agencies are generally immune from suit unless Congress has expressly waived that immunity. While Title VII and the ADEA permit suits against federal employers, the plaintiffs first had to establish that NASA was their employer or joint employer.

Quoting from the court’s decision:

• NASA moved to dismiss the [suit] for lack of subject matter jurisdiction, among other things.
• Specifically, NASA argued that Plaintiffs failed to plead facts that NASA is a joint employer and, as such, NASA is entitled to sovereign immunity against claims from nonemployees such as Plaintiffs.
• Unless they consent to waive immunity, the United States and its agencies are immune from suit.
• Plaintiffs generally may only assert Title VII claims against their employers.
• Title VII “recognizes that two entities may simultaneously share control over the terms and conditions of employment, such that both should be liable for discrimination relating to those terms and conditions.”
• ADEA prohibits age discrimination in federal employment.
• Under ADEA, “[t]wo or more employers may be considered ‘joint employers’ if both employers control the terms and conditions of employment of the employee.”
• Given the similarities between the Title VII and ADEA joint employer tests, the Court addresses them together.
• As set forth below, there is no evidence that NASA is a joint employer such that it has waived sovereign immunity.
• The evidence instead shows that, while NASA took steps to ensure that Fiore was upholding the terms of the contract, it was Fiore that controlled the details of Plaintiffs’ work.

The court found that Fiore—not NASA—controlled the essential aspects of the plaintiffs’ employment. Fiore hired fire department personnel, paid wages, issued W-2 forms, provided benefits, approved leave requests, handled personnel actions, and granted Gazaway’s religious accommodation. The accommodation allowed Gazaway to maintain a beard for religious reasons, subject to annual respirator fit-testing requirements.

The court also rejected the chiefs’ argument that NASA effectively controlled staffing decisions. Although NASA could enforce contract requirements and approve contract modifications, the court found no evidence that NASA interviewed candidates, hired personnel, set compensation, or terminated employees.

The chiefs pointed to an email in which Siuda discussed their qualifications and suggested that Fiore was waiting for NASA to determine whether they met the contract requirements. The court concluded that the email reflected NASA’s role in ensuring contract compliance, not authority to terminate employees.

Likewise, the court found that NASA’s approval authority over standard operating procedures did not establish day-to-day supervisory control. The court emphasized that Fiore was responsible for creating and implementing operating procedures and that Fire Chief Bonner remained responsible for ensuring compliance with those procedures.

The plaintiffs also relied on the fact that they wore NASA uniforms, carried NASA-branded business cards, and used NASA email addresses. The court found those facts insufficient to establish an employment relationship, particularly where their email accounts identified them as Fiore employees.

After weighing the evidence, the court concluded that NASA did not exercise the level of control necessary to qualify as a joint employer under either Title VII or the ADEA. Because NASA was not the plaintiffs’ employer, the court held that sovereign immunity barred the claims. The case was dismissed with prejudice for lack of subject matter jurisdiction.