01994112
07-25-2000
Darrel Clark, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Darrel Clark, )
Complainant, )
)
v. ) Appeal No. 01994112
) Agency No. 1K-211-0145-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
We find that the agency's March 24, 1999 decision dismissing the complaint
on the grounds of failure to state a claim was not proper pursuant to
the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)).<1>
The record shows that Complainant claimed that he had been discriminated
against on the bases of race, physical disability, and reprisal when in
August 1998 and ongoing, he was rejected from postal premises where he
had been assigned to work under a contract to upgrade the computer system.
The agency issued a final decision dismissing the claim on the grounds
of failure to state a claim after finding that Complainant was employed
by a private contractor and therefore, was not an agency employee.
On appeal, Complainant contends that at the time of the incident in
question, he was still an agency employee.
The Commission's regulations provide that an agency shall accept a
complaint from any aggrieved employee or applicant for employment
who believes that the agency has discriminated against him because
of race, color, religion, sex, national origin, age, or disability.
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.103). In order to
determine whether an individual is an employee under Title VII, "the
Commission will apply the common law of agency test, considering all of
the incidents of the relationship between the [complainant] and the agency
. . ." Ma and Zheng v. Department of Health and Human Services, , EEOC
Appeal Nos. 01962390 and 01962389 (June 1, 1998). In Ma, the Commission
held that "the application of the Spirides [Spirides v. Reinhardt, 613
F.2d 826, 831-32 (D.C. Cir. 1979)] test has not differed appreciably from
an application of the common law of agency test." Id. (citation omitted).
In Ma, the Commission described the common law of agency test as follows:
In [ National Mutual Insurance Co. v. Darden, 503 U.S. 318, (1992)], the
Court adopted the factors listed in [Community for Creative Non-Violence
v. Reid, 490 U.S. 730, 751-752 (1989)], as part of the common-law test
for determining who qualifies as an "employee" under ERISA: the hiring
party's right to control the manner and means by which the product is
accomplished; the skill required; the source of the instrumentalities
and tools; the location of the work; the duration of the relationship
between the parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired party's
discretion over when and how long to work; the method of payment;
the hired party's role in hiring and paying assistants; whether the
work is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits; and the
tax treatment of the hired party. 503 U.S. at 323-324. The Court also
referenced the Restatement (Second) of Agency �220(2)(1958) as listing
nonexhaustive criteria for identifying a master-servant relationship,
and Rev. Rul. 87-41, 1987-1 Cum. Bull. 296-299 as setting forth 20 factors
as guides in determining whether an individual qualifies as a common-law
"employee" in various tax law contexts. The Court emphasized, however,
that the common-law test contains "no shorthand formula or magic phrase
that can be applied to find the answer,...all of the incidents of the
relationship must be assessed and weighed with no one factor being
decisive." 503 U.S. at 324, quoting NLRB v. United Insurance Co. of
America, 390 U.S. 254, 258 (1968).
Ma, EEOC Appeal No. 01962390.
The Commission finds that the agency has not provided sufficient evidence
in the record addressing whether complainant was an "employee" of the
agency under the common law of agency test. The Commission is unable
to determine if complainant was an employee of the agency at the time
of the alleged discrimination. Because it is not clear whether the
agency has jurisdiction over the matter, we shall remand the matter so
that the agency can supplement the record with evidence addressing the
common law of agency test as described in Ma.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with evidence which shows whether
complainant was an employee of the agency using the common law of agency
test as defined in Ma, EEOC Appeal No. 01962390 and described in this
decision. Thereafter the agency shall determine whether complainant
was an employee of the agency and whether the instant complaint states
a claim of discrimination under 29 C.F.R. �1614.103 or �1614.106(a).
Within 60 days of the date this decision becomes final, the agency
shall either issue a letter to complainant accepting the complaint for
investigation or issue a new decision dismissing the complaint. A copy
of the agency's letter accepting the complaint for investigation or a
copy of the new decision dismissing the complaint must be sent to the
Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 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. 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:
July 25, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.