0120090985
03-25-2009
Jennifer A. Dyer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jennifer A. Dyer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090985
Agency No. 4H370014408
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 25, 2008, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed.
On January 16, 2007, complainant entered into an agreement with the
agency to perform cleaning services at the New Johnsonville, Tennessee
postal facility. In the agreement, complainant, characterized as the
"supplier," affirmatively acknowledged that she was performing the
cleaning services as an independent contractor and not an employee of
the agency. The agreement was scheduled to expire in January 2009, unless
terminated earlier by either party on 30 days notice, or for cause by the
agency. The record establishes that complainant terminated the agreement
effective April 4, 2008, prior to the January 2009 expiration date.
On August 24, 2008, nearly five months after she terminated her services
under the agreement, complainant initiated contact with an agency
EEO counselor alleging that beginning in February 2008 and continuing
through her resignation in April 2008, she was subjected to ongoing
sexual harassment by an agency manager (RMO). Complainant asserted
that she terminated her services before the expiration of her contract
because of the harassment. On November 6, 2008, when the matter could
not be resolved informally, complainant filed a formal EEO complaint.
In a decision dated November 25, 2008, the agency dismissed the
complaint asserting complainant lacked standing to file a complaint
under 29 C.F.R. Part 1614 because she was an independent contractor,
not an employee. The agency also dismissed the matter for untimely
EEO counselor contact, noting complainant's initial contact was beyond
the requisite 45-day limitation period. In support of this claim, the
agency provided an affidavit from an agency manager averring that there
was an EEO poster in complainant's work area that advised employees of
the 45-day limitation period. A copy of the poster was also submitted
in the record. The instant appeal from complainant followed.
The matter before us is whether the agency properly dismissed
complainant's complaint. EEOC Regulation 29 C.F.R. �1614.103(a)
provides that complaints of employment discrimination shall be processed
in accordance with Part 1614 of the EEOC regulations. EEOC Regulation
29 C.F.R. � 1614.103(c) provides that within the covered departments,
agencies and units, Part 1614 applies to all "employees and applicants
for employment."
The Commission has applied the common law of agency test to determine
whether an individual is an agency employee versus an independent
contractor. See Ma v. Department of Health and Human Services, EEOC
Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual
Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992).
The question of whether an employer-employee relationship exists
is fact-specific and depends on whether the employer controls the
means and manner of the worker's work performance. This determination
requires consideration of all aspects of the worker's relationship with
the employer. Factors indicating that a worker is in an employment
relationship with an employer include the following:
� The employer has the right to control when, where, and how the
worker performs the job.
� The work does not require a high level of skill or expertise.
� The employer furnishes the tools, materials, and
equipment.
� The work is performed on the employer's premises.
� There is a continuing relationship between the worker and the
employer.
� The employer has the right to assign additional projects to the
worker.
� The employer sets the hours of work and the duration of
the job.
� The worker is paid by the hour, week, or month rather than the
agreed cost of performing a particular job.
� The worker does not hire and pay assistants.
� The work performed by the worker is part of the regular business
of the employer.
� The worker is not engaged in his/her own distinct occupation or
business.
� The employer provides the worker with benefits such as insurance,
leave, or workers' compensation.
� The worker is considered an employee of the employer for tax
purposes (i.e., the employer withholds federal, state, and Social Security
taxes).
� The employer can discharge the worker.
� The worker and the employer believe that they are creating an
employer-employee relationship.
This list is not exhaustive. Not all or even a majority of the listed
criteria need be met. Rather, the determination must be based on all of
the circumstances in the relationship between the parties, regardless
of whether the parties refer to it as an employee or as an independent
contractor relationship. EEOC Compliance Manual, Section 2: Threshold
Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at
www.eeoc.gov).
In the instant case, the file includes a copy of the contract between
complainant and the agency that explicitly states complainant is an
independent contractor and not an agency employee. Complainant argues
that, despite this language in the agreement, she was a de facto agency
employee because she performed her duties at the agency's facility
under the direct supervision of RMO, an agency manager. She noted,
for example, that he was able to alter her start time from 11 a.m. to
1 p.m. However, many other factors support the characterization of
complainant as an independent contractor. According to the contract,
complainant was paid a flat rate on a biweekly basis and no taxes or other
deductions were made. Complainant also did not accumulate any benefits.
Moreover, complainant's cleaning duties were of the basic skill level
sold in the commercial marketplace and were not directly related to
the primary business of the agency (postal services). Finally, either
party could terminate the agreement with 30 days notice to the other.
After carefully balancing these factors in accordance with the principles
discussed above, the Commission finds that complainant was an independent
contractor, not an employee of the agency. As such, she has no standing
to file a complaint under the 29 C.F.R. Part 1614 process.1 As we are
affirming the agency's dismissal on these grounds, it is unnecessary
for us to address the agency's alternative dismissal for untimely EEO
counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 25, 2009
__________________
Date
1 We caution the agency, however, that light of its affirmative duty
to provide a harassment-free workplace, it should conduct an internal
inquiry into complainant's allegations that one of its managers engaged
in on-going sexual harassment, which she alleged was also directed at a
number of other female agency employees, and take immediate and effective
steps to prevent any further harassment from occurring.
??
??
??
??
2
0120090985
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090985