01986326
10-20-1999
Martha Lopez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Martha Lopez v. United States Postal Service
01986326
October 20, 1999
Martha Lopez, )
Appellant, )
)
v. ) Appeal No. 01986326
) Agency No. 4E-870-0090-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely filed the instant appeal from a decision dated July 20,
1998 dismissing appellant's complaint (alleging that appellant was barred
by the Postmaster from entering the Anthony, New Mexico Post Office
thereby making it impossible for appellant to continue employment)
for failure to state a claim pursuant to 29 C.F.R. �1614.107(a).
The agency found that appellant was not harmed and that appellant was
not an employee of the agency. The Commission finds that appellant was
harmed by allegedly not being allowed to enter the workplace and thereby
continue working at her job.
The agency found that appellant was a contract employee and not
directly employed by the agency. On appeal appellant argues that she
was required to undergo the same requirements as any career driver, she
was fingerprinted, her driving record was scrutinized, and that she was
required to respect the sanctity of the U.S. mail. The record contains
an unsigned document containing questions (apparently asked of appellant)
regarding her contractor/employee status.
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.
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 [appellant] 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 [Nationwide Mutual Ins. 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 Ins. 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 appellant was an "employee" of the
agency under the common law of agency test. The document apparently
asking questions regarding appellant's contractor/employee status is
unsigned and it is unclear who completed that document. Therefore,
the Commission is unable to determine if appellant 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
appellant 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 appellant 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 appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
10/20/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations