Darrel Clark, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 25, 2000
01994112 (E.E.O.C. Jul. 25, 2000)

01994112

07-25-2000

Darrel Clark, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Darrel Clark, )

Complainant, )

)

v. ) Appeal No. 01994112

) Agency No. 1K-211-0145-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

We find that the agency's March 24, 1999 decision dismissing the complaint

on the grounds of failure to state a claim was not proper pursuant to

the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)).<1>

The record shows that Complainant claimed that he had been discriminated

against on the bases of race, physical disability, and reprisal when in

August 1998 and ongoing, he was rejected from postal premises where he

had been assigned to work under a contract to upgrade the computer system.

The agency issued a final decision dismissing the claim on the grounds

of failure to state a claim after finding that Complainant was employed

by a private contractor and therefore, was not an agency employee.

On appeal, Complainant contends that at the time of the incident in

question, he was still an agency employee.

The Commission's regulations provide that an agency shall accept a

complaint from any aggrieved employee or applicant for employment

who believes that the agency has discriminated against him because

of race, color, religion, sex, national origin, age, or disability.

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.103). In order to

determine whether an individual is an employee under Title VII, "the

Commission will apply the common law of agency test, considering all of

the incidents of the relationship between the [complainant] and the agency

. . ." Ma and Zheng v. Department of Health and Human Services, , EEOC

Appeal Nos. 01962390 and 01962389 (June 1, 1998). In Ma, the Commission

held that "the application of the Spirides [Spirides v. Reinhardt, 613

F.2d 826, 831-32 (D.C. Cir. 1979)] test has not differed appreciably from

an application of the common law of agency test." Id. (citation omitted).

In Ma, the Commission described the common law of agency test as follows:

In [ National Mutual Insurance Co. v. Darden, 503 U.S. 318, (1992)], the

Court adopted the factors listed in [Community for Creative Non-Violence

v. Reid, 490 U.S. 730, 751-752 (1989)], as part of the common-law test

for determining who qualifies as an "employee" under ERISA: the hiring

party's right to control the manner and means by which the product is

accomplished; the skill required; the source of the instrumentalities

and tools; the location of the work; the duration of the relationship

between the parties; whether the hiring party has the right to assign

additional projects to the hired party; the extent of the hired party's

discretion over when and how long to work; the method of payment;

the hired party's role in hiring and paying assistants; whether the

work is part of the regular business of the hiring party; whether the

hiring party is in business; the provision of employee benefits; and the

tax treatment of the hired party. 503 U.S. at 323-324. The Court also

referenced the Restatement (Second) of Agency �220(2)(1958) as listing

nonexhaustive criteria for identifying a master-servant relationship,

and Rev. Rul. 87-41, 1987-1 Cum. Bull. 296-299 as setting forth 20 factors

as guides in determining whether an individual qualifies as a common-law

"employee" in various tax law contexts. The Court emphasized, however,

that the common-law test contains "no shorthand formula or magic phrase

that can be applied to find the answer,...all of the incidents of the

relationship must be assessed and weighed with no one factor being

decisive." 503 U.S. at 324, quoting NLRB v. United Insurance Co. of

America, 390 U.S. 254, 258 (1968).

Ma, EEOC Appeal No. 01962390.

The Commission finds that the agency has not provided sufficient evidence

in the record addressing whether complainant was an "employee" of the

agency under the common law of agency test. The Commission is unable

to determine if complainant was an employee of the agency at the time

of the alleged discrimination. Because it is not clear whether the

agency has jurisdiction over the matter, we shall remand the matter so

that the agency can supplement the record with evidence addressing the

common law of agency test as described in Ma.

The agency's decision dismissing the complaint is VACATED and we REMAND

the complaint to the agency for further processing in accordance with

this decision and applicable regulations.

ORDER

The agency shall supplement the record with evidence which shows whether

complainant was an employee of the agency using the common law of agency

test as defined in Ma, EEOC Appeal No. 01962390 and described in this

decision. Thereafter the agency shall determine whether complainant

was an employee of the agency and whether the instant complaint states

a claim of discrimination under 29 C.F.R. �1614.103 or �1614.106(a).

Within 60 days of the date this decision becomes final, the agency

shall either issue a letter to complainant accepting the complaint for

investigation or issue a new decision dismissing the complaint. A copy

of the agency's letter accepting the complaint for investigation or a

copy of the new decision dismissing the complaint must be sent to the

Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 19848,

Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

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 (R0400)

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 (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:

July 25, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

____________ _________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

1 On 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.