Theophus L. Daniel, Sr.,
Complainant,

v. 

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120073791

Agency No. 4K-000-0003-07

DECISION

Complainant filed a timely appeal with this Commission from the agency's
decision dated July 30, 2007, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), for failure
to state a claim.  

On April 19, 2007, complainant initiated contact with an Equal Employment
Opportunity (EEO) Counselor alleging that the agency discriminated against
him on the basis of sex (male) regarding the terms and conditions of his
employment with it as a Truck Driver under a contract between the agency
and Fallen Trucking Company (Fallen).  Subsequently, complainant filed a
formal EEO complaint regarding the same matter, alleging that the agency
discriminated against him when, after Fallen informed the agency that
there was a felony charge against complainant (1) on December 19, 2005,
agency management pulled complainant's badge and would not allow him to
handle mail, (2) on December 23, 2005, the agency officially revoked
complainant's access to mail and its facilities, (3) on December 30,
2005, agency management failed to provide complainant with a response
to his appeal letter regarding the agency's revocation of his access,
(4) on February 7, 2007, a day after his temporary badge was returned
to him, complainant was instructed to return it again, (5) on March 26,
2007, agency management delayed issuance of another temporary badge
to complainant, and (6) complainant was not allowed to return to work
until April 8, 2007.  Complainant stated that the agency does not have
to revoke access unless there is a conviction and it allowed a female
carrier to retain her access with a felony charge.
In its July 30 final decision, the agency dismissed complainant's
complaint for failure to state a claim.  Specifically, the agency stated
that it applied the common law of agency test cited in Ma v. Dep't
of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390
(May 29, 1998), and complainant is not an agency employee but rather an
independent contractor.  The agency stated that Fallen is an independent
highway supplier that moves mail for it between Richmond, Virginia and
Petersburg, Virginia; Fallen received its contract by solicitation or
bid; Fallen provides the vehicles required for its contract; the agency
compensates Fallen at the end of each month for its transportation
services and Fallen compensates its employees and deducts applicable
taxes and retirement benefits; the agency does not pay sick or annual
leave benefits to Fallen; and the contract can be terminated at Fallen's
request with due cause or if the agency no longer requires the service.

The instant appeal from complainant followed.  On appeal, complainant
argued that the agency violated its own policy in revoking his badge and
access based on a pending matter and that it should have waited until
the matter was resolved or resulted in a conviction.  Complainant stated
that he wants compensation for the time that he was not allowed to work.
Complainant does not seem to argue that the agency is his employer,
jointly or otherwise. 

As the agency indicated, before the Commission can consider whether the
agency has discriminated against a complainant in violation of Title VII,
we 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,
supra (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.  Id..  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)
(Guidance), 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. 

Based on the legal standards and criteria set forth herein as well
as the totality of the circumstances, we find that the agency was
not an employer of complainant.  Accordingly, we AFFIRM the agency's
final decision dismissing complainant's complaint for failure to state
a claim.                                                  

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:



______________________________
Carlton M. Hadden, Director
Office of Federal Operations


February 22, 2008

__________________
Date

 
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0120073791





U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036





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0120073791