01A04538_r
09-20-2001
Brady A. Weikle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brady A. Weikle v. United States Postal Service
01A04538
September 20, 2001
.
Brady A. Weikle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04538
Agency No. 4D-250-0112-99
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). In a complaint
dated July 26, 1999, the complainant alleged that he was discriminated
against in reprisal for prior protected activity when:
(1) on August 19, 1998, he was subjected to harassment by the Regional
Administrator;
(2) on August 22, 1998, the Administrator ordered him to the Employee
Assistance Program (EAP);
(3) on August 24, 1998, he did not receive any response to his complaints
that his wife who also worked at the same agency facility was being
sexually harassed;
(4) on August 31, 1998, complainant was again referred to EAP;
(5) on September 1, 1998, complainant was told that he could not file
an EEO complaint and had to file a charge of discrimination with the
Commission;
(6) on September 3, 1998, he was assaulted by the Postmaster;
(7) on September 4, 1998, his contract with the agency was terminated;
and
(8) on September 16, 1998, he received a final decision letter which
told him he could not appeal his termination.
The record in this case contains an affidavit from an agency official,
dated May 15, 2000. Therein, the agency official stated that complainant
was not an agency employee; and that he was an independent contractor
working out of the Hinton, West Virginia office. The agency official
further stated that complainant was required to provide his own vehicle
to use on the route specified in the contract; that he was responsible
for hiring his own employees, if necessary, to operate the route; and
that an agency accounting service center paid him automatically at the
conclusion of the postal accounting period. Finally, the agency official
noted that the agency did not withhold anything from his paycheck,
and that he received no agency benefits.
The Commission previously reversed an agency dismissal of the instant
complaint for failure to timely contact an EEO Counselor, and remanded
the complaint to the agency for further processing. Weikle v. USPS,
EEOC Appeal No. 01A00368 (April 3, 2000).
Subsequently, the agency issued a final agency decision that is the
subject of the instant appeal, dated May 1, 2000, again dismissing
complainant's complaint, for failure to state a claim. Specifically,
the agency found that complainant was not an agency employee, but was
instead a contract employee.
The Commission has applied the common law of agency test to determine
whether complainants are agency employees under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 0 1962390
(June 1, 1998)(citing Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 218, 323-24 (1992)). Specifically, the Commission will look to the
following non-exhaustive list of factors: (1) the extent of the employer's
right to control the means and manner of the worker's performance; (2)
the kind of occupation, with reference to whether the work is usually done
under the direction of a supervisor or is done by a specialist without
supervision; (3) the skill required in the particular occupation; (4)
whether the "employer" or the individual furnishes the equipment used and
the place of work; (5) the length of time the individual has worked; (6)
the method of payment, whether by time or by the job; (7) the manner in
which the work relationship is terminated, i.e., by one or both parties,
with or without notice and explanation; (8) whether annual leave is
afforded; (9) whether the work is an integral part of the business of the
"employer"; (10) whether the worker accumulates retirement benefits; (11)
whether the "employer" pays social security taxes; and (12) the intention
of the parties. See Ma v. Department of Health and Human Services, supra.
In Ma, the Commission noted that the common-law test contains,
"no shorthand formula or magic phrase that can be applied to find
the answer... . [A]ll of the incidents of the relationship must be
assessed and weighed with no one factor being decisive." Id., (citations
omitted). The Commission in Ma also noted that prior applications of the
test established in Spirides v. Reinhardt, 613 F.2d 826 (D. C. Cir. 1979),
using many of the same elements considered under the common law test,
were not appreciably different from the common law of agency test. Id.
The Commission determines that the record in this case contains sufficient
evidence supporting a determination that the instant complaint fails to
state a claim under 29 C.F.R. Part 1614 because complainant is not an
employee or applicant for employment with a covered governmental entity.
See 29 C.F.R. � 1614.103(c). We note, for example, the affidavit prepared
by an agency official, discussed above. Moreover, the record in this
case contains a document identified as a �Charge of Discrimination�
wherein complainant stated in part that �[m]y wife . . . was employed
by me as a relief carrier on my route...� Accordingly, the agency's
final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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 his or her 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 20, 2001
__________________
Date