Thomas Brown, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01986202 (E.E.O.C. Feb. 18, 2000)

01986202

02-18-2000

Thomas Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Thomas Brown, )

Complainant, )

)

v. ) Appeal No. 01986202

) Agency No. 4D-220-1109-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq.<1> Complainant received the final agency

decision on July 20, 1998. The appeal was postmarked August 11, 1998.

Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and

is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue presented on appeal is whether the agency properly dismissed

the complaint on the grounds of failure to state a claim.

BACKGROUND

Complainant initiated contact with an EEO Counselor on June 16, 1995.

On August 16, 1995, complainant filed a formal EEO complaint wherein he

alleged that he was subjected to discrimination on the bases of his race

(black), sex (male), and in reprisal for his previous EEO activity when:

1. On approximately November 5, 1994, the Postmaster instructed

complainant to repair the custodian closet toilet for his own use.

2. On December 6, 1994, the Postmaster walked in on complainant while

he was using the toilet.

3. On December 20, 1994, the Postmaster joked about another female

employee who walked in on complainant while he was using the toilet.

4. On February 16, 1995, the Postmaster walked in on complainant while

he was using the toilet.

5. On May 30, 1995, the Postmaster walked in on complainant while he

was using the toilet.

6. On May 31, 1995, complainant resigned due to the Postmaster's

actions.

In its initial final decision, the agency dismissed the complaint on

the grounds that it failed to state a claim. Thereafter, complainant

filed an appeal with the Commission. In Thomas Brown v. United States

Postal Service, EEOC Appeal No. 01962517 (May 23, 1997), the Commission

reversed the final agency decision and remanded the complaint to the

agency for further processing. The Commission noted that complainant

had claimed that he was subjected to discriminatory harassment, which

affected a term, condition, or privilege of complainant's employment

with the agency. We further found that complainant claimed that he had

been constructively discharged as a result of the harassment.

Upon remand, the agency conducted an investigation of the complaint.

Subsequent to the investigation, complainant requested a hearing before

an EEOC Administrative Judge (AJ). On June 24, 1998, the agency

filed a Motion to Dismiss. The agency argued that complainant was

not an employee of the agency. According to the agency, complainant's

self-employment is evident by the fact that the agency did not provide

complainant with any employment benefits, i.e., annual or sick leave

or retirement benefits nor did the agency withhold social security,

federal, state, or local taxes from complainant's compensation.

The agency stated there was no measurable skill level required in the

cleaning services procured from complainant. According to the agency,

it would require little if any supervision to accomplish the tasks for

which the services were contracted. Further, the agency argued that the

work performed by complainant was not an integral part of its business.

The agency claimed that complainant was informed that his services

were on an �as needed� basis and the termination of his services may be

without notice. According to the agency, complainant's services were

procured for a relatively short period of time and the services were

intermittent. Further, the agency stated that complainant's cleaning

services were procured as part of a test of a new procedure that allowed

the Postmaster to purchase cleaning services as a local buy rather than

process through the Purchasing Service Center through the issuance of

a contract. The agency stated that this procedure allowed post offices

under certain circumstances to hire self-employed contract cleaners

when the value of the services they provide is less than $10,000.00

per year. The agency noted that this procedure became a provision of

the Administrative Support Manual in March 1996.

By letter dated July 14, 1998, the agency notified the Commission that

it was dismissing the complaint on the grounds that complainant is a

contractor and not an employee.

In the final decision currently under review, the agency dismissed

the complaint on the grounds of failure to state a claim. The agency

determined that complainant was a self-employed contract cleaner for the

agency and not an employee for Title VII purposes. The agency reasoned

that there was no employee/employer relationship because it did not

provide complainant with any employee benefits such as annual leave,

sick leave, or retirement benefits. The agency further noted that it

did not withhold from complainant's wages social security, federal,

state, or local taxes. The agency stated that the work performed by

complainant was not an integral part of the agency's business. Finally,

the agency noted that complainant was aware that his services could be

terminated without notice.

On appeal, complainant claims that he was an employee with the agency.

Complainant states that he was hired and that he was paid for his

services. According to complainant, the agency exerted a great deal

of control over his duties and whereabouts. Complainant notes that the

Postmaster issued him a list of duties he was to perform. Complainant

argues that he lacked control over the number of hours he worked and he

was unable to negotiate his pay rate. Complainant states that he had no

involvement in the hiring of paid assistants. Further, complainant claims

that he did not sign a contract saying he was an independent contractor,

and that he was led to believe that the part-time position would lead

to full-time employment. Finally, complainant argues that the absence

or presence of benefits is not dispositive of his employment status.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. �1614.107(a)(1)) provides, in relevant part,

that an agency shall dismiss a complaint, or portion thereof, 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.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as 29 C.F.R. �1614.103); �1614.106(a).

The determination of whether an individual is an employee or applicant

of an agency involves an analysis of the economic realities of the work

relationship. See Spirides v. Reinhart, 613 F.2d 826 (D.C. Cir. 1979).

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 Zheng v. Department of Health and Human Services,

EEOC Appeal No. 01962389 (June 1, 1998); 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 (1992).

In the present case, we find that complainant was neither an employee nor

an applicant for employment by the agency. The cleaning services provided

by complainant were not an integral part of the agency's business.

Complainant also was not provided with employment benefits such as

annual leave, sick leave, or retirement benefits. The agency did not

withhold social security taxes, as well as federal, state, or local

taxes from complainant's compensation. In Betty J. Prouse v. United

States Postal Service, EEOC Appeal No. 01966393 (August 5, 1997),

the Commission found that the complainant was not an agency employee.

In that matter, the complainant provided custodial services, initially

as an employee of a subcontractor, and also after the agency's contract

with the subcontractor was canceled. The Commission noted in that

case that although the Postmaster supervised the complainant after the

contract with the subcontractor was canceled, the complainant received

no benefits, commendations, or awards from the agency. The Commission

further noted that although complainant was paid by money order by the

Postmaster, she was responsible for her own payment of taxes and social

security benefits. We find that the situation in the instant matter

is analogous to that set forth in Prouse. An additional factor that

supports a finding that complainant was not an employee is that the

agency had a right to terminate complainant without notice. Further,

although complainant was issued a list of duties to perform, we are not

persuaded that the Postmaster or any other agency official exercised a

significant degree of supervision over complainant in the performance

of his duties. Finally, complainant has not refuted the agency's

position that complainant worked part-time on an �as needed� basis.

Accordingly, the agency's decision to dismiss the complaint pursuant to

29 C.F.R. �1614.107(a)(1) was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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 (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:

February 18, 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 Equal Employment Assistant

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.