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White v. United States

United States District Court, W.D. Oklahoma

May 18, 2018

MARY BETH WHITE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE

         This 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.

         Factual and Procedural Background

         The 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.

         In this 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 deposition transcripts.[1]

         Summary of the Evidence

         Invoking 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.[2] 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.

         The 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”).[3] 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.

         The 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 notice.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         Regarding 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 ...


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