01a01713
06-09-2000
Sharon Koob, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sharon Koob v. United States Postal Service
01A01713
June 9, 2000
Sharon Koob, )
Complainant, )
)
v. ) Appeal No. 01A01713
) Agency No. 4-C-190-0190-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing her complaint of unlawful employment
discrimination brought under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
Complainant contacted an EEO counselor on August 16, 1999, and
subsequently filed a formal complaint claiming that she had been
discriminated against on the bases of race and sex when:
From November 1996 she was denied equipment and privileges requested
by her;
On June 2, 1998, the agency attempted to terminate her; and,
On April 13, 1999, the agency terminated her employment.
In its FAD, the agency found that complainant was a contract employee of
the agency and dismissed her claim pursuant to 29 C.F.R. � 1614.103.
Alternatively, the FAD also dismissed the complaint for untimely EEO
contact.
On appeal, complainant argues that she did not have independent contract
status and so does have standing to file the instant complaint. She also
argues that within two weeks of her termination she contacted an "EEO
office" in Philadelphia, PA, and was told that she had 240 days to file
a claim, but first had to exhaust the agency process. Therefore, she
argues that he EEO contact was timely.
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. 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 [Nationwide Mutual Ins. 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
non-exhaustive 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 Ins. 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 appellant was an "employee" of the
agency under the common law of agency test. The only relevant document
in evidence is a blank "Medical Agreement" contract, with no indication
that this was the same contract form used by complainant and agency.
Therefore, the Commission is unable to determine if appellant 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.
Additionally, although complainant claims to have contacted the
Philadelphia, PA, EEO office, it appears that it may actually have been
the EEOC's office in Philadelphia. Further clarification is necessary to
determine whether this contact may satisfy the 45-day time requirement.
Moreover, the agency must contact both complainant and the office
she contacted in order to obtain any documentary verification of the
contact that complainant claims occurred two weeks after her April 1999
termination, and also to confirm the information received by complainant.
If none exists, an affidavit from the person complainant contacted should
be obtained.
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
1. The agency shall supplement the record with evidence which shows
whether appellant 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.
2. The agency shall supplement the record with evidence to verify
which EEO office complainant contacted following her termination, and
when this contact occurred. This evidence shall include an affidavit
from the person complainant contacted, if necessary, to specify the date
of contact.
Within 60 days of the date this decision becomes final, the agency
shall either issue a letter to appellant 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:
June 9, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.