01986202
02-18-2000
Thomas Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas Brown, )
Complainant, )
)
v. ) Appeal No. 01986202
) Agency No. 4D-220-1109-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.<1> Complainant received the final agency
decision on July 20, 1998. The appeal was postmarked August 11, 1998.
Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and
is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds of failure to state a claim.
BACKGROUND
Complainant initiated contact with an EEO Counselor on June 16, 1995.
On August 16, 1995, complainant filed a formal EEO complaint wherein he
alleged that he was subjected to discrimination on the bases of his race
(black), sex (male), and in reprisal for his previous EEO activity when:
1. On approximately November 5, 1994, the Postmaster instructed
complainant to repair the custodian closet toilet for his own use.
2. On December 6, 1994, the Postmaster walked in on complainant while
he was using the toilet.
3. On December 20, 1994, the Postmaster joked about another female
employee who walked in on complainant while he was using the toilet.
4. On February 16, 1995, the Postmaster walked in on complainant while
he was using the toilet.
5. On May 30, 1995, the Postmaster walked in on complainant while he
was using the toilet.
6. On May 31, 1995, complainant resigned due to the Postmaster's
actions.
In its initial final decision, the agency dismissed the complaint on
the grounds that it failed to state a claim. Thereafter, complainant
filed an appeal with the Commission. In Thomas Brown v. United States
Postal Service, EEOC Appeal No. 01962517 (May 23, 1997), the Commission
reversed the final agency decision and remanded the complaint to the
agency for further processing. The Commission noted that complainant
had claimed that he was subjected to discriminatory harassment, which
affected a term, condition, or privilege of complainant's employment
with the agency. We further found that complainant claimed that he had
been constructively discharged as a result of the harassment.
Upon remand, the agency conducted an investigation of the complaint.
Subsequent to the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). On June 24, 1998, the agency
filed a Motion to Dismiss. The agency argued that complainant was
not an employee of the agency. According to the agency, complainant's
self-employment is evident by the fact that the agency did not provide
complainant with any employment benefits, i.e., annual or sick leave
or retirement benefits nor did the agency withhold social security,
federal, state, or local taxes from complainant's compensation.
The agency stated there was no measurable skill level required in the
cleaning services procured from complainant. According to the agency,
it would require little if any supervision to accomplish the tasks for
which the services were contracted. Further, the agency argued that the
work performed by complainant was not an integral part of its business.
The agency claimed that complainant was informed that his services
were on an �as needed� basis and the termination of his services may be
without notice. According to the agency, complainant's services were
procured for a relatively short period of time and the services were
intermittent. Further, the agency stated that complainant's cleaning
services were procured as part of a test of a new procedure that allowed
the Postmaster to purchase cleaning services as a local buy rather than
process through the Purchasing Service Center through the issuance of
a contract. The agency stated that this procedure allowed post offices
under certain circumstances to hire self-employed contract cleaners
when the value of the services they provide is less than $10,000.00
per year. The agency noted that this procedure became a provision of
the Administrative Support Manual in March 1996.
By letter dated July 14, 1998, the agency notified the Commission that
it was dismissing the complaint on the grounds that complainant is a
contractor and not an employee.
In the final decision currently under review, the agency dismissed
the complaint on the grounds of failure to state a claim. The agency
determined that complainant was a self-employed contract cleaner for the
agency and not an employee for Title VII purposes. The agency reasoned
that there was no employee/employer relationship because it did not
provide complainant with any employee benefits such as annual leave,
sick leave, or retirement benefits. The agency further noted that it
did not withhold from complainant's wages social security, federal,
state, or local taxes. The agency stated that the work performed by
complainant was not an integral part of the agency's business. Finally,
the agency noted that complainant was aware that his services could be
terminated without notice.
On appeal, complainant claims that he was an employee with the agency.
Complainant states that he was hired and that he was paid for his
services. According to complainant, the agency exerted a great deal
of control over his duties and whereabouts. Complainant notes that the
Postmaster issued him a list of duties he was to perform. Complainant
argues that he lacked control over the number of hours he worked and he
was unable to negotiate his pay rate. Complainant states that he had no
involvement in the hiring of paid assistants. Further, complainant claims
that he did not sign a contract saying he was an independent contractor,
and that he was led to believe that the part-time position would lead
to full-time employment. Finally, complainant argues that the absence
or presence of benefits is not dispositive of his employment status.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. �1614.107(a)(1)) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that
fails 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.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. �1614.103); �1614.106(a).
The determination of whether an individual is an employee or applicant
of an agency involves an analysis of the economic realities of the work
relationship. See Spirides v. Reinhart, 613 F.2d 826 (D.C. Cir. 1979).
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 worker accumulates retirement benefits; (11) whether
the �employer� pays social security taxes; and (12) the intention of
the parties. See Zheng v. Department of Health and Human Services,
EEOC Appeal No. 01962389 (June 1, 1998); Ma v. Department of Health
and Human Services, EEOC Appeal No. 01962390 (June 1, 1998), citing
Nationwide Mutual Insurance Co. et. Al. V. Darden, 503 U.S. 318 (1992).
In the present case, we find that complainant was neither an employee nor
an applicant for employment by the agency. The cleaning services provided
by complainant were not an integral part of the agency's business.
Complainant also was not provided with employment benefits such as
annual leave, sick leave, or retirement benefits. The agency did not
withhold social security taxes, as well as federal, state, or local
taxes from complainant's compensation. In Betty J. Prouse v. United
States Postal Service, EEOC Appeal No. 01966393 (August 5, 1997),
the Commission found that the complainant was not an agency employee.
In that matter, the complainant provided custodial services, initially
as an employee of a subcontractor, and also after the agency's contract
with the subcontractor was canceled. The Commission noted in that
case that although the Postmaster supervised the complainant after the
contract with the subcontractor was canceled, the complainant received
no benefits, commendations, or awards from the agency. The Commission
further noted that although complainant was paid by money order by the
Postmaster, she was responsible for her own payment of taxes and social
security benefits. We find that the situation in the instant matter
is analogous to that set forth in Prouse. An additional factor that
supports a finding that complainant was not an employee is that the
agency had a right to terminate complainant without notice. Further,
although complainant was issued a list of duties to perform, we are not
persuaded that the Postmaster or any other agency official exercised a
significant degree of supervision over complainant in the performance
of his duties. Finally, complainant has not refuted the agency's
position that complainant worked part-time on an �as needed� basis.
Accordingly, the agency's decision to dismiss the complaint pursuant to
29 C.F.R. �1614.107(a)(1) was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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 (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:
February 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.