0120091633
07-13-2009
Richard P. Sheehan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard P. Sheehan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091633
Agency No. 6X000004908
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 22, 2009, dismissing his 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (Caucasian), sex (male), age
(61 years at time of incident), and reprisal for prior protected EEO
activity under a statute that was unspecified in the record when:
1. On August 25, 2008, complainant was not selected as a Contract EEO
Investigator.
The agency dismissed the claim for failure to state a claim on the grounds
that complainant is a contractor and not a federal employee or applicant
for federal employment. On appeal, complainant argues that the agency
should be viewed as a joint employer and as a "staffing firm."
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a).
The Commission must first determine whether the complainant was an
agency employee or applicant for employment within the meaning of
Section 717(a) of Title VII of the Civil Rights Act of 1964, an amended,
42 U.S.C. 2000e-16(a) et. seq. The Commission has applied the common
law of agency test to determine whether an individual is an agency
employee under Title VII. 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).
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 usually is 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, 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]ll of the incidents of the relationship must be
assessed and weighed with no one factor being decisive." Id.
Furthermore, under the Commission's Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997)
(hereinafter referred to as the "Guidance") (available at www.eeoc.gov.),
we have also recognized that a "joint employment" relationship may exist
where both the agency and the "staffing firm" may be deemed employers.
Similar to the analysis set forth above, a determination of joint
employment requires an assessment of the comparative amount and type
of control the "staffing firm, and the agency each maintain over
complainant's work. Thus, a federal agency will qualify as a joint
employer of an individual if it has the requisite means and manner of
control over the individual's work under the Ma criteria, whether or not
the individual is on the federal payroll. See Guidance, supra at 11.
The FAD noted the following: individuals selected for the Contract
Investigator positions would be home-based independent contractors located
throughout the country; Investigators would be paid on a "per case"
basis; Investigators would provide their own workspace and essential
equipment; taxes and benefits, including health benefits and leave, were
the responsibility of the Contractor; and the Contractor would not be
eligible to participate in the Federal Employees Group Life Insurance or
Health Insurance programs. These facts are confirmed by the Solicitation
Notice advertising the positions as well as by the Statement of Work and
Ordering Agreement "which govern the relationship between the individuals
selected for the contracting opportunity," Agency's Appellate Brief,
p. 2, and the agency. In addition, the Solicitation Notice revealed that
there was no guarantee of work or of the number of cases assigned. See
Complaint File. Complainant does not deny these facts.
Complainant on appeal cites Chamberlain v. Department of the Army,
EEOC Appeal No. 0120061315 (June 26, 2006) to support his contention
that the agency should be viewed as a joint employer. However the
facts in Chamberlain differ from the present case. In Chamberlain, the
agency "provided training, supervision, workspace and equipment, and
maintained careful records of complainant's work hours and absences."
Id. In addition agency management conducted verbal counseling with
the complainant, negotiated alternative hours in order to accommodate
her needs, and disciplined her when her attendance record was deemed
unsatisfactory." See id. Because of these and other actions, we
found that the agency "exercise[d] . . . supervisory authority over the
complainant." Id. Such factors, however, do not apply to the Contract
Investigator position at issue herein.
Based on the legal standards and criteria set for herein, we find that
complainant has not met his burden of establishing that the agency
exercised sufficient control over the complainant's position to qualify
as the employer or joint employer of complainant. See generally, Baker
v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Accordingly, we find that the agency's dismissal was appropriate and we
AFFIRM the agency's final decision.
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
July 13, 2009
__________________
Date
2
0120091633
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091633