0120121249
06-27-2012
Thomas M. Murphy, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Thomas M. Murphy,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121249
Agency No. 1B-121-0001-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 13, 2012, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant served the Agency as a Highway Contract Route (HCR) Driver. He transported mail six days a week in or between the Agency's Albany Processing & Distribution Center in Albany, New York and its Malta Annex in New York. Various postal facilities were located between these two points. Since February 2003 Complainant was employed with John R. Mott Inc. providing this service for the Agency. On December 16, 2011, he filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (65) when:
1. On or about September 7, 2011, he was placed off-duty pending an investigation of a driving incident; and
2. By letter dated October 24, 2011, the Agency notified his employer that he was denied access to mail at postal facilities, resulting in the termination of his employment.
On September 7, 2011, mail fell off the truck Complainant was driving. He mistakenly failed to secure the mail and the truck's rear door. He wrote that after he reached the Clifton Park Post Office in New York a passerby informed him about the fallen mail, and he promptly retrieved it. Agency officials then interviewed Complainant. According to Complainant, he was told that he would be would be suspended for two to four weeks. Instead an Agency Transportation Contracting Officer by letter to John R. Mott Inc. dated October 24, 2011 advised that Complainant was being denied access to the mail and to postal facilities for not securing the mail, and that it must return Complainant's driver identification badges to the Agency. Complainant was then terminated by John R. Mott Inc.
The Agency dismissed the complaint for failure to state a claim on the grounds that Complainant was an employee of a private contractor, not the Agency. 29 C.F.R. � 1614.107(a)(1).
On appeal Complainant argues that John R. Mott Inc. was answerable to the Agency, which had almost all the authority including decisions on employee discipline and terminations based upon the removal of necessary credentials.
In opposition to the appeal the Agency urges that its final decision be affirmed.
ANALYSIS AND FINDINGS
The Commission has applied the common law agency test to determine whether an individual is an agency employee under Title VII. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006); Ma v. Dep't. of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 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 usually is 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 work accumulates retirement benefits;
(11) whether the employer pays social security taxes; and
(12) the intention of the parties.
See Ma v. Dep't of Health and Human Serv., supra.
The above factors are designed to determine whether the employer controls the means and manner of the worker's work performance. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (Dec. 3, 1997)(hereinafter referred to as "Guidance")(available at www.eeoc.gov.), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers. Similar to the analysis set forth above, a determination of joint employment requires an assessment of the comparative amount and type of control the "staffing firm", and the agency each maintain over complainant's work. Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the Ma criteria, whether or not the individual is on the federal payroll. See Guidance, at 11.
In this case we conclude that the record establishes that Complainant is solely an employee of John R. Mott Inc.. First, documents reflect this to be the parties' intention (factor 12). For example, John R. Mott Inc. provides mail transportation service to the Agency under a term contract, and the drivers are hired by John R. Mott Inc. On an EEO intake form Complainant wrote he was employed by John R. Mott, and on appeal indicated the same. The record also reflects that the Agency did not provide Complainant with the vehicle necessary to perform his HCR driver duties (factor 4). While John R. Mott Inc. was required to adhere to Department of Labor standards in setting wages for those providing services for the Agency, Complainant was paid by John R. Mott Inc. (factor 6). The Agency did not provide Complainant vacation time (factor 8), he was not entitled to participate in the Agency's retirement plans (factor 10), and John R. Mott Inc. paid his social security (factor 11).
While the record indicates that the Agency controlled when and where Complainant picked up and dropped off mail, as well as his access to postal facilities, there appears to be little else over Complainant's employment that was under the Agency's control (factor 1). His route assignment was determined by John R. Mott Inc. and there is no indication that the Agency had the power to assign him work. The Agency Transportation Contracting Officer's letter denying Complainant access to the mails and Agency facilities was directed to John R. Mott Inc., not Complainant.
Our determination is consistent with prior Commission cases regarding individuals providing HCR delivery service for the Agency. See Timmons v. United States Postal Service (Southwest Area), EEOC Appeal No. 0120120899 (May 9, 2012)(Complainant, an HCR Driver who was temporarily denied access to postal facilities by the Agency and removed from his route was held not to be an Agency employee. His employer, SBM, had a contract to provide trucking services for the Agency and was hired by SBM to operate one of its routes, SBM provided the vehicle necessary to perform HCR duties, complainant was paid by SBM, his route assignment was determined by SBM, and the Agency's letter denying complainant access to postal facilities was to SBM); Williams v. United States Postal Service, EEOC Appeal No. 0120120252 (Mar. 5, 2012) (Even in the absence of a copy of the Agency's contract with USA Lone Star, the Commission determined that Complainant, an HCR Driver, was not an Agency employee. Lone Star provided the vehicle, issued paychecks, controlled personnel decisions, and determined terms of tax withholding and benefits. While the Agency monitored HCR driver's arrival and departure times, any performance concerns were communicated to Lone Star).
Based on the evidence of record, we determine that the Agency did not exercise sufficient control over Complainant's position to qualify as either his employer or joint employer. See generally, Baker. Accordingly, the Agency's dismissal is AFFIRMED.
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 (S0610)
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 (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
June 27, 2012
__________________
Date
2
0120121249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121249