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