01993955
08-02-2000
Richard E. Sundberg, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard E. Sundberg v. United States Postal Service
01993955
August 2, 2000
Richard E. Sundberg, )
Complainant, )
)
v. ) Appeal No. 01993955
William J. Henderson, ) Agency No. 4-I-553-0036-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On April 16, 1999, complainant filed a timely appeal with this
Commission from an agency decision dated March 12, 1999, pertaining
to his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> In his complaint, complainant alleged that he was
subjected to discrimination on the basis of age (DOB April 8, 1939) when:
On April 6, 1998, he was no longer permitted to be a Highway Contract
Driver.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)), for failure to
state a claim. Specifically, the agency stated that complainant was a
previous employee who was not an applicant for employment at the time
of the incident and thus argued that complainant did not have standing
to pursue a discrimination complaint.
On appeal, complainant presents evidence that he applied for a bid in
October 1998 with the agency and argues that despite being the lowest
bidder, he was denied the contract in December 1998. Complainant
argues that the agency's refusal to award him the bid was based on age
discrimination. On appeal complainant also claims that Person A has
continued to make false statements about complainant's work history.
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 29 C.F.R. �1614.103). In order to determine whether an
individual is an employee or applicant for employment 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 [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
non-exhaustive 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 complainant was an "applicant for
federal employment." 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.
Accordingly, the agency's decision is VACATED and we REMAND the complaint
to the agency for further processing in accordance with this decision
and applicable regulations.
ORDER
The agency is ORDERED to supplement the record with evidence which shows
whether complainant was an applicant for employment using the common law
of agency test as defined in Ma, EEOC Appeal No. 01962390 and described
in this decision.
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:
August 2, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
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.