0120121010
06-15-2012
Patricia A. Pugh, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Patricia A. Pugh,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120121010
Agency No. 6Z-000-0015-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 18, 2011, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant bid on solicitation number 150-302-11 and, in June 2011, was awarded HCR contract 262B2 to case (sort) mail; and pick up and deliver mail on a route.
On October 18, 2011, she filed a formal complaint alleging that the Agency discriminated against her based on disability when on the day she was awarded the contract, it was rescinded. The Agency explained that after the award it realized that Complainant was released from a prior contract for "permanent medical reasons" per medical documentation she submitted.
The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned that Complainant was an independent contractor, not an employee of the Agency. The Agency observed that in two decisions issued in 2000 and 2001, the Commission reviewed contract agreements similar to the one in this case, and reached the conclusion that the complainants were independent contractors. The Agency also found that the complaint was a collateral attack because, under the Contract Disputes Act of 1978 (41 U.S.C. � 601 et seq.), Complainant had appeal rights to the Postal Service Board of Contract Appeals. It also reasoned Complainant could appeal the rescinding of her contract to the United States Court of Federal Claims.
The instant appeal from Complainant followed.
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.
Not all or even a majority of the listed criteria need be met. 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 contract, daily, except Sundays and holidays, Complainant was to commence casing mail at 7:25 AM at the Rock Cave Post Office in West Virginia and then load her vehicle and depart for her route at 8:45 AM. On the road, Complainant was required to sequentially follow a pre-designated precise turn by turn route and pick up and deliver mail. Complainant was scheduled to complete her route daily at 3:25 PM. The contract contains detailed requirements for personal appearance and picking up, delivering, and protecting mail. While the contract permitted Complainant to hire assistants, in a pre-award questionnaire Complainant wrote she intended to primarily perform the contract by herself.
Factors (1) - (7) and (9) Indicate that Complainant is an Employee
The contract details show that the Agency had the right to control the means and manner of the worker's performance, e.g., schedule and frequency requirements, precise dictates on how to perform the work, and guidelines on personal appearance (factor 1). The contract indicates that Agency's Administrative Officials supervised or administered the contract. In its final decision, the Agency conceded that a fair reading of the record was that the Administrative Officials oversaw the duties performed by the Contractor. An example of supervision under the contract was that Complainant was required to notify the postal authority at the appropriate point in a route if a delay in excess of 15 minutes was anticipated (factor 2). The work does not require a high level of skill or expertise, pointing to an employment relationship (factor 3). Id. at page 2-25. While the contract required Complainant to provide a vehicle to perform the contract, it detailed what vehicle was acceptable, e.g., not more than five years old at the beginning of the contract term, at least 40 cubic feet; four wheel drive, and a creditable appearance. Complainant cased mail at the Agency's premises. Based on the above, we find factor 4 points in the direction of the Agency controlling the manner and means of the worker's performance. While the Agency rescinded the contract award denying Complainant the opportunity to perform any work under the contract, the contract term was from June 2011 to March 2017, showing an intention for an ongoing relationship (factor 5). The contract is paid on a fixed annualized rate. But payments are made monthly and are based on the number of hours worked daily, with additional payment for driver waiting time, detours; and additional stop points outside the contract. This type of payment points to an employment relationship --- where the worker is paid by the hour, week or month rather than the agreed cost of performing a particular job (factor 6). Id. at 2-26. The Agency rescinded Complainant's contract award, terminating her, based on her getting released from a prior contract for medical reasons which were designated as permanent. This was to be a full-time job. This power to discharge Complainant indicates an employment relationship (factor 7). Id. at 2-26. It is uncontested that picking up and delivering mail is an integral part of the Agency's business (factor 9).
Factors (8), (10) and (11) Indicate that Complainant May not be an Employee
Under the contract, Complainant was not entitled to annual leave, did not accumulate retirement benefits, and the Agency did not pay social security taxes (factors 8, 10, and 11).
We are unable to discern whether Complainant believed she was creating an employment or independent contractor relationship. Accordingly, factor 12 does not point in any direction.
Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position to qualify as her employer for the purpose of the EEO complaint process.
The Agency points to two prior cases where the Commission reviewed contract agreements similar to the one in this case, and reached the conclusion that the Complainants were independent contractors. However, in more recent like decisions, the Commission has found an employment relationship. Baiamonte v. United States Postal Service, EEOC Appeal No. 01A61526 (Aug. 7, 2006); Dean v. United States Postal Service, EEOC Appeal No. 0120113137 (December 1, 2011). Moreover, an analysis of the facts in this case, including some which arose outside the contract - the Agency conceding it oversaw the duties performed by Complainant, and the way Complainant was terminated - point to an employment relationship.
We disagree with the Agency's finding that Complainant's complaint is a collateral attack on the Postal Service Board of Contract Appeals process. The EEO process is designed to determine whether there is discrimination, not whether the contract was violated or whether Complainant was entitled to certain rights under the contract.
Accordingly, the Agency's dismissal of Complainant's complaint is REVERSED and it is REMANDED to the Agency for further processing pursuant to the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. 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 (R0610)
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 (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 15, 2012
__________________
Date
2
0120121010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121010