01a03926
08-22-2000
Albert Beard, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Albert Beard v. United States Postal Service
01A03926
August 22, 2000
.
Albert Beard,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03926
Agency No. 1B-131-0008-00
DECISION
On May 6, 2000, complainant filed a timely appeal with this Commission
from an agency's decision dismissing his complaint of unlawful employment
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.<1> The Commission accepts the
appeal in accordance with 64 Fed. Reg. 37, 644, 37,659 (1999)(to be
codified at 29 C.F.R. 1614.405).
Complainant contacted the EEO office regarding claims of discrimination
based on race, color and retaliation. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on February 8,
2000, complainant filed a formal complaint. The agency framed the claim
as follows:
On December 30, 1999, complainant's right to drive on Highway Contract
Route (HCR) 137L3 was suspended.
On April 10, 2000, the agency issued a decision dismissing the complaint
for failure to state a claim. Specifically, the agency determined that
complainant was an independent contractor, and that he was not an agency
employee entitled to protection under the federal EEO process. In support
of its conclusion, the agency noted that it does not make retirement
or Social Security payments for complainant; taxes are not withheld
for complainant; complainant is not covered by the Federal Workers'
Compensation program; complainant does not accrue sick or annual leave;
and complainant is ineligible to participate in the Federal Employees
Health Benefits Program.
On appeal, complainant argues that �the only difference between a �rural'
postal carrier and myself, is payroll records.� According to complainant,
he worked with agency carriers and supervisors. He contends that he
was required to follow the agency's schedule and rules. Further, the
agency was responsible for any disciplinary actions.
In response, the agency asserts that complainant was awarded a highway
transportation contract, to move mail between Binghamton and Apalachin,
New York, wherein complainant provided the vehicle. It argues that the
Postmaster of Binghamton, New York had a duty to oversee complainant
administratively but that he did not exercise significant supervision
during the performance of complainant's work. Further, the agency argues
that it has �no role in the hiring and selection process of the driver(s),
other than screening requirements....� Moreover, the agency argues that
complainant is paid a gross amount every twenty-eight days, and that
he is not provided leave or retirement benefits. The agency noted
that although it controlled complainant's assignments (designated trip
schedule), �his employment is limited to the terms of the contract.�
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
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. 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 Commission has applied the common law of agency test to determine
whether complainants are agency employees under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962390 (June
1, 1998)(citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 2 18,
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 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. See Ma v. Department of Health and Human Services, supra.
In Ma, the Commission noted that the common-law test contains,
"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., (citations
omitted). The Commission in Ma also noted that prior applications of the
test established in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979),
using many of the same elements considered under the common law test, were
not appreciably different from the common law of agency test. See id.
In the present case, the record reflects that complainant submitted a
bid in response to the agency's solicitation for a mail transportation
supplier. The record further reflects that the agreement required
complainant to provide a vehicle that met agency specifications.
Moreover, complainant was paid a gross amount every twenty-eight
days based on the fixed price set in the contract; taxes were not
withdrawn; Social Security and retirement benefits were not paid; and
annual leave and sick leave were not provided. Moreover, the record
contains correspondence from complainant reflecting that the parties
had an independent contractor relationship. Specifically, in a letter
to the agency dated January 4, 2000, complainant stated �I am writing
you this letter in reference to the contract I have with the U.S. Postal
Service� and closes the letter �Albert Beard B-Enterprises Trucking.�
In correspondence to the Commission, complainant identifies himself as
�owner/president� of B Enterprises Trucking. Given the circumstances of
this case, we find that the agency's decision dismissing the complaint
for failure to state a claim was proper and is AFFIRMED.
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 (S0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 22, 2000
__________________
Date
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.