United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE
matter is before the Court for disposition of Defendant
United States' Motion to Dismiss [Doc. No. 11] under
Fed.R.Civ.P. 12(b)(1). By Order of October 17, 2017, the
Court found that the existing record was insufficient to
permit a determination of whether subject matter jurisdiction
exists over Plaintiff's action against the United States
under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346, 2671-80, and authorized limited
jurisdictional discovery and additional briefing. Plaintiff
has filed a supplemental brief [Doc. No. 17], and Defendant
has responded [Doc. No. 18]. Thus, the Motion is fully
briefed and ripe for decision.
and Procedural Background
Court assumes the reader's familiarity with the October
17 Order [Doc. No. 14]. Briefly, this action concerns
Plaintiff's personal injuries from a slip-and-fall
accident at a United States Postal Service
(“USPS”) facility in Newalla, Oklahoma, on
November 12, 2013. The accident occurred inside the facility
where a worker employed by USPS was wet-mopping the floor in
an area open to customers. With its Motion, Defendant
presented evidence to show that the individual performing the
mopping work was a USPS contractor, Patrick Ryan. Plaintiff
disputed that Mr. Ryan was an independent contractor rather
than an employee, and argued that “USPS employees other
than the cleaning person may also be responsible for the
condition of the premises.” See Pl.'s
Resp. Br. [Doc. No. 12] at 11. At that point in the case,
however, the available evidence was simply the written
contract defining the relationship between USPS and Mr. Ryan.
Order, the Court continues the analysis stated in the October
17 Order, applying the same standard of decision. For ease of
discussion, the Court will recap the prior evidence, and then
summarize new evidence submitted by the parties after
conducting discovery. Unfortunately, despite the parties'
efforts, Mr. Ryan has not been located. Defendant reports:
“It is believed that Mr. Ryan moved out of state after
the incident, ” and it is possible he is deceased.
See Def.'s Resp. Br. at 1-2. The only available
witnesses are two USPS employees: David Unsell, who was the
officer in charge (“OIC”) of the Newalla post
office in April 2013 when Mr. Ryan began working; and JoeJean
Danker, who was the Newalla OIC in November 2013 when the
accident occurred. Plaintiff deposed both of these
individuals, and the parties have submitted excerpts of the
of the Evidence
the independent contractor exception to the FTCA's waiver
of sovereign immunity, Defendant previously provided a
written “Cleaning Services Agreement” between
USPS and Mr. Ryan as a “self-employed individual”
and a “supplier” of commercial cleaning services.
See Mot. Dismiss, Ex. 2 [Doc. No. 11-2] (hereafter,
the “Contract”) at 1. The Contract is a USPS form
agreement that was used to engage Mr. Ryan as a
“contract cleaner” for the Newalla facility,
executed on behalf of USPS by Mr. Unsell. Id. The
Contract authorized bi-weekly payments to Mr. Ryan by check
at an annual rate for a 12-month period; it expressly
provided that USPS would “not withhold taxes or take
any other deduction from these payments.” Id.
at 2. It stated regarding federal taxes: “Supplier
payment information is reported to the Internal Revenue
Service via IRS Form 1099.” Id.
Contract expressly provided, in pertinent part: “The
supplier agrees and acknowledges that he/she is performing
this service as an independent contractor and not an employee
of [USPS], for any purpose, and that the terms of this
agreement shall not be construed to create any further
relationship between the parties other than an independent
contractor status.” Id. at 2. The Contract
made the supplier “responsible, without additional
expense to [USPS], for obtaining any necessary licenses or
permits, and for complying with any applicable . . . laws,
” and “responsible for all damage to person or
property . . . that occurs as a result of its omission(s) or
negligence.” Id. The Contract also provided:
“The supplier must take proper safety and health
precautions to protect the work, the workers, the public, the
environment, and the property of others.” Id.
(“Clause B-30”). The Contract included an
indemnity provision: “The supplier will hold harmless
and indemnify [USPS], and its officers, employees, agents,
and representatives, from all claims, losses, damages,
actions or causes of actions resulting from the negligent
acts or omissions of the supplier, his/her agents, employees,
or representatives.” See Contract at 2.
Contract described the services to be provided as follows:
“Cleaning services will be of the kind and quality
offered and sold in the commercial marketplace under
commercial terms and conditions. [USPS] reserves the right to
reject any work it finds unsatisfactory.” Id.
The Contract provided regarding equipment: “Unless
otherwise agreed, [USPS] will provide reasonable quantities
of cleaning equipment and supplies.” Id. The
Contract authorized USPS to terminate the agreement
“for cause if the supplier fails to perform all of the
services required by the contract, or fails to maintain
appropriate standards of personal conduct while on [USPS]
premises.” Id. Otherwise, the Contract could
be terminated by either party by giving 30 days' written
Unsell testified that he obtained permission from USPS to
hire a contract cleaner when he became OIC of the Newalla
facility, and that he explained the duties of the position to
Mr. Ryan as “sweeping, mopping, [and] doing basic
general cleaning.” See Unsell Dep. 11:4-10.
Mr. Ryan was required to perform his work during office hours
while customers might be present; he did not have a key to
the facility. When he came to work, “[h]e would ring
the bell and be allowed access by whomever answered the
door.” See Danker Dep. 19:16-19. Mr. Ryan was
issued a badge to be worn while cleaning; the badge
identified him as a person who was authorized to be in all
areas of the facility, unlike customers who were prohibited
from entering certain areas. The Newalla post office
“was always busy. So [Mr. Ryan] did his best to clean
where he could, when customers were not there or not
immediately there.” Id. 34:23-25.
Ryan performed cleaning tasks on an “as-needed
basis” and in any order he chose, except he was
expected to clean toilets every day he worked. See
Unsell Dep. 19:2-10. Mr. Unsell informed Mr. Ryan at the
beginning of the Contract what duties he was to perform and
gave him general directions, such as to “make sure
there's no fingerprints on doors.” Id.
18:24-19:2. Mr. Unsell also made clear that Mr. Ryan would be
required to do satisfactory work. Id. 19:15-19. Mr.
Ryan's performance of cleaning tasks was not documented
by any checklist or paperwork of any type.
Ryan's work hours were not directly controlled, routinely
monitored, or tracked, but “it was a small enough
office that [employees] knew whether he was there or
not.” See Unsell Dep. 27:24-28:1. Unlike Mr.
Ryan, USPS employees were required to clock in and out, and
rural mail carriers logged their hours on time sheets. The
Contract did not specify a number of hours or days that
cleaning services would be provided, but both Mr. Unsell and
Ms. Danker testified that Mr. Ryan was expected to work two
or three days per week for a total of nine hours
“depending on the personal needs of his own
schedule.” See Danker Dep. 18:24-19:1. If he
needed to adjust his typical working hours or days for a
week, he simply informed the OIC. Id. 36:11-21;
Unsell Dep. 3-23. The OIC did not have authority to change
the number of hours or the payment received under the
Contract; USPS determined those matters based on the size of
the facility. See Danker Dep. 20:8-21:2.
floor maintenance and equipment, Mr. Unsell and Ms. Danker
testified that USPS provided brooms, a mop, a bucket and
wringer, and cleaning supplies. The mop bucket had warning
signage on it, but no other warning signs were provided for
mopping work. The Contract's provision for
“reasonable” quantities of supplies was
implemented informally. As stated by Ms. Danker, “when
you're close to out of something, you reorder it.”
Id. 26:17-20. A USPS employee with computer access
would order supplies as needed to keep items in ...