01a51828_r
01-26-2006
Edward P. Lantz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edward P. Lantz v. United States Postal Service
01A51828
January 26, 2006
.
Edward P. Lantz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51828
Agency No. 4J-530-0073-04
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated December 23, 2004, dismissing his formal EEO
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq.
In a formal complaint dated May 13, 2004, complainant, a Highway Contract
Box Delivery person/Contract Carrier, in Felch Michigan, claimed that he
was a victim of unlawful employment discrimination on the basis of sex.
On May 21, 2004, the agency accepted complainant's complaint for an
investigation. However, after the completion of the investigation,
the agency issued the December 23, 2004 final decision, finding that
�the acceptance letter had been issued in error.�
In its December 23, 2004 decision, the agency determined that the
instant complaint was comprised of the claim that, on February 25, 2004,
complainant was a victim of sexual harassment. The agency dismissed
the complaint for failure to state a claim. Specifically, the agency
determined that complainant was not a federal employee, and therefore
failed to state a cognizable claim.
On appeal, complainant's attorney submits complainant's �contract route
service order,� a negotiated cost statement, and a schedule included in
a detailed �statement of work and specifications.� Making reference to
his submissions, complainant's attorney argues that the agreement between
complainant and the agency refers to complainant as a �supplier,� and not
as an independent contractor or employee. Complainant's attorney notes
that �the agreement is very specific as to the control exercised� by the
agency. Specifically, complainant's attorney contends that �the exact
route is detailed,� and the �work requirements, vehicle requirements,
general requirements and prohibitions are spelled out in detail.�
Complainant's attorney concludes that �an employer/employee relationship
likely existed� between complainant and the agency, and �that he should
be given an opportunity to submit evidence� on the matter.
Before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of Title VII, it first
must determine whether complainant is an agency employee or applicant
for employment within the meaning of Section 717(a) of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e-16(a)
et seq.
The Commission has applied the common law of agency test to determine
whether complainant is an agency employee under Title VII. See 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, 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]11 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, was
not appreciably different from the common law of agency test. See Id.
The agency has provided insufficient evidence addressing whether
complainant should be considered an agency employee. The Commission
acknowledges that the record contains a contract route service
order, negotiated cost statement, and a detailed statement of work
and specifications (provided by complainant) showing details of the
agency's method of payment and complainant's work requirements. However,
the agency itself has not provided any evidence or analysis, in its
decision or elsewhere, concerning any of the factors in the common law
of agency test. In particular, and especially in light of complainant's
assertions on appeal, the agency has not addressed the means and manner
of control the agency maintained over the conditions of complainant's
day-to-day work for the agency. Given the present record, the Commission
is unable to ascertain whether or not the agency has jurisdiction.
Accordingly, the agency's dismissal of the complaint is VACATED and we
REMAND the complaint to the agency for further processing in accordance
with the ORDER below.
ORDER
Within thirty (30) calendar days after the date this decision becomes
final, the agency is ORDERED to take the following action:
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).
Thereafter, 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 (K0501)
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 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 (M0701)
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 (1OFO) 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), 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 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 26, 2006
__________________
Date