Gary D. Dean, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity CommissionDec 1, 2011
0120113137 (E.E.O.C. Dec. 1, 2011)

0120113137

12-01-2011

Gary D. Dean, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.




Gary D. Dean,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Capital Metro Area),

Agency.

Appeal No. 0120113137

Agency No. 4K-200-0106-11

DECISION

On June 14, 2011, Complainant filed an appeal from the Agency’s June 1,

2011, decision concerning his equal employment opportunity (EEO) complaint

alleging employment discrimination in violation of the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).

ISSUE PRESENTED

The issue presented is whether the Agency properly dismissed Complainant's

complaint for failure to state a claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Contract Carrier (Highway Contract Route) at the Agency’s Great

Mills, Maryland Post Office. On May 23, 2011, Complainant filed a formal

complaint alleging that the Agency subjected him to discrimination on

the basis of age (60) when:

1. on January 26, 2011, an employee threw three bunches of mail at

him; and

2. on February 11, 2011, he was taken off his contract route, and has

not been permitted to report back to work.

On June 1, 2011, the Agency issued a final decision dismissing the

instant complaint. Specifically, the Agency found that Complainant

was an independent contractor and therefore not eligible to receive

EEO protections pursuant to 29 C.F.R. §1614.103(c). Additionally,

the Agency found that Complainant was not denied any entitlement in

relation to a term, condition, or privilege of employment and, as such,

did not state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).

CONTENTIONS ON APPEAL

Complainant submitted a statement on appeal in which he requested a

review of his complaint. The Agency urged the Commission to affirm its

decision dismissing Complainants complaint.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides, in relevant part,

that an agency shall dismiss a complaint, or portion thereof, that falls

to state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. § 1614.103;

§ 1614.106(a). In order to establish standing to bring a claim, a

complainant must either be an employee or an applicant for employment

of the agency against which the claim is filed. 29 C.F.R. § 1614.103(c).

Agency Control

The Commission has applied the common law of agency test to determine

whether complainants are agency employees under the federal employment

non-discrimination statutes. See Ma v. Dep’t of Health and Human

Serv., EEOC Appeal No. 01962390 (June 1, 1998)(citing Nationwide Mutual

Ins. Co. v. Darden, 503 U.S. 218, 323-24 (1992)). Specifically, the

Commission will consider 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. Beard v. U.S. Postal Serv., EEOC Appeal No. 01A03926

(Aug. 22, 2000). Additionally, the Commission has found that there

is “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. (citing

Ma, EEOC Appeal No. 01962390; Darden, 503 U.S. at 323-24; NLRB v. United

Ins. Co. Of America, 390 U.S. 254, 258 (1968)).

The Ma list is not exhaustive. Not all or even a majority of the

listed criteria need be met. Rather, the determination as to whether

an agency is an employer must be based on all of the circumstances in

the relationship between the parties, regardless of whether the parties

refer to it as an employee or an independent contractor relationship.

Balderas v. Dep’t of Justice, EEOC Appeal No. 0120073551 (March 13,

2007) (citing EEOC Compliance Manual, Section 2: Threshold Issues,

2-III.A.1, at 2-25 and 2-26 (May 12, 2000)).

In the instant case, the record reflects that Complainant submitted a

bid in response to the Agency's solicitation for a mail transportation

supplier, provided his own delivery vehicle, performed duties pursuant to

a contract, and employed subcontract carriers throughout his suspension.

However, Complainant’s contract details, among other things,

schedule and frequency requirements, work requirements and standards,

a requirement that Complainant provide drug screening tests for the

individuals he subcontracts, vehicle specification requirements, and

guidelines for professional appearance. Additionally, Complainant was

required to abide by safety requirements, insurance requirements, and

was provided six hours of training similar to the training provided for

the Agency’s Rural Carriers, who are employees. Lastly, Complainant

was engaged in work that is vital to the Agency, the delivery of mail.

The Commission has previously held that Contract Carriers in certain

circumstances may fall under the scope of agency control. In one such

case, a Contract Carrier who independently contracted with the Postal

Service was found to be an employee because his contract laid out the

means and exact manner of his work. Baiamonte v. U.S. Postal Serv., EEOC

Appeal No. 01A61526 (Aug. 7, 2006). The Commission held that Baiamonte

was an employee despite that he provided the vehicle and fuel and that

he did not receive retirement, leave, or social security benefits.

The Commission further noted that the agency specified the exact route

Baiamonte was to follow, provided Rural Carrier training, guidelines

for uniforms, and vehicle specification requirements. The Commission

also found that the contract was for the “carrying and/or handling the

United States Mail” and that such work was “an integral part of the

business of the agency.” Lastly, the Commission found that Baiamonte

was under direct supervision and could be followed without notice.

Based on the legal standards and criteria set forth herein, we find that

the agency exercised sufficient control over the Contract Carrier position

for Complainant to qualify as an “employee.” While the contract

between Complainant and the Agency identified him as a “supplier,”

we do not find this language controlling given the nature of the working

relationship.

Aggrieved Employee

The Commission's federal sector case precedent has long defined an

"aggrieved employee" pursuant to EEOC Regulations as one who suffers a

present harm or loss with respect to a term, condition, or privilege of

employment for which there is a remedy. Diaz v. Dep’t of the Air Force,

EEOC Request No. 05931049 (Apr. 21, 1994). With regard to Complainant’s

allegation that an employee threw bunches of mail at him, we are persuaded

that Complainant did not demonstrate an adverse employment action, an

essential element of a disparate treatment claim. However, with regard

to Complainant’s second claim, that he was taken off his contract

route and was not permitted to return to work, Complainant’s frozen

contract amounted to an effective suspension. This Commission has found

the act of suspension to be an adverse employment action impacting a term,

condition, or privilege of employment. See Truong v. U.S. Postal Serv.,

EEOC Appeal No. 0120100476 (Apr. 20, 2011). Accordingly, we find that

Complainant is an “aggrieved employee” pursuant to our regulations

for purposes of claim 2.

CONCLUSION

Based on a thorough review of the record and the contentions

on appeal, including those not specifically addressed herein,

we find that Complainant is an employee of the Agency, that he was

sufficiently aggrieved, and that the Agency improperly dismissed the

instant complaint. We hereby REVERSE in part the Agency’s dismissal

of Complainant’s complaint, and REMAND claim 2 of the complaint to

the Agency for further processing in accordance with this decision and

applicable regulations. We AFFIRM the dismissal of claim 1.

ORDER (E0610)

The Agency is ordered to process the remanded claim, claim 2 as specified

above, in accordance with 29 C.F.R. § 1614.108. The Agency shall

acknowledge to the Complainant that it has received the remanded claims

within thirty (30) calendar days of the date this decision becomes final.

The Agency shall issue to Complainant a copy of the investigative file

and also shall notify Complainant of the appropriate rights within one

hundred fifty (150) calendar days of the date this decision becomes

final, unless the matter is otherwise resolved prior to that time.

If the Complainant requests a final decision without a hearing, the

Agency shall issue a final decision within sixty (60) days of receipt

of Complainant’s request.

A copy of the Agency’s letter of acknowledgment to Complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

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 77960, Washington, DC

20013. 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 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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

77960, Washington, DC 20013. 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 (T0610)

This decision affirms the Agency’s final decision/action in part, but it

also requires the Agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion of

your complaint which the Commission has affirmed and that portion of the

complaint which has been remanded for continued administrative processing.

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 your appeal with the Commission, until such time as the Agency

issues its final decision on your complaint. 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 (Z0610)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

December 1, 2011

Date

2

01-2011-3137

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120113137