Albert Beard, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 22, 2000
01a03926 (E.E.O.C. Aug. 22, 2000)

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.