Opinion
Civ. No: 99-3259, Section: "R" (3).
March 30, 2000.
ORDER AND REASONS
Before the Court are plaintiff Connie Cole's motion for summary judgment and defendant Venture Transport's cross-motion for summary judgment. For the following reasons, plaintiff's motion is denied and defendant's motion is granted.
I. Background
On December 9, 1997, plaintiff and Venture entered into an "INDEPENDENT CONTRACTOR SERVICE AGREEMENT" ("ICSA"), under which plaintiff agreed to provide motor carrier transport services to Venture's customers. ( See Def.'s Mot. Summ. J. Ex. C.) The agreement stated that plaintiff was to be an independent contractor: "This agreement is intended by the parties to create an independent contractor relationship between VENTURE and `CONTRACTOR', and not an employer-employee relationship." ( Id. ¶ 5(a).) Either party retained the right to terminate the agreement for any reason, upon thirty days written notice to the other party. ( See id. ¶ 1(d).) The agreement stated that plaintiff was responsible for the direction and control of her employees. ( See id.) In addition, plaintiff was responsible for providing her own motor vehicle equipment, tools and personnel, and had the option of driving the vehicle herself or hiring others to drive it. ( See id. ¶ 5(b).) All drivers, however, were required to satisfy all federal and state laws, municipal ordinances, and rules and regulations of the Department of Transportation and Venture, as well as other applicable laws. ( See id.) See also 49 C.F.R. § 391, et seq. (West 2000) (providing minimum qualifications for drivers of commercial motor vehicles as, for or on behalf of motor carriers). Venture's job description provided as follows:
GENERAL PHYSICAL REQUIREMENTS
VERY HEAVY WORK:
Exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds frequently.
( See id. Ex. B at 3.)
From December 1997 until March of 1998, plaintiff personally drove her truck while performing her duties. Prior to March 25, 1998, plaintiff informed Venture that she was pregnant, and Venture requested a statement from her treating obstetrician/gynecologist that she met DOT and Venture's requirements. On March 25, 1998, plaintiff obtained a written statement from her treating ob/gyn, Dr. C. Scott Nicholson, that indicated she should not lift more than twenty pounds. ( See id. Ex. K.) Dr. Nicholson based his opinion on his experience as an ob/gyn and on plaintiff's medical history, including her advanced maternal age and her two spontaneous miscarriages. ( See id. Ex. L at 14, 18-19, 22.) When Dr. Nicholson refused plaintiff's request to increase the weight limitation, plaintiff consulted another doctor. ( See id. at 14-15.) On March 30, 1998, plaintiff obtained a statement from another ob/gyn, Dr. Vu A. Vuong, that stated she could lift up to fifty pounds. ( See id. Ex. E.) On April 1, 1998, Dr. Joseph Serio performed a DOT physical examination of plaintiff to determine whether she satisfied the physical requirements of the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 391.41. He determined that she did not, due to her fifty-pound weight restriction, and that he would not be able to approve her under DOT regulations. ( See id. Ex. F.) One day later, plaintiff returned to Dr. Vuong, who then issued a statement that she could lift up to 100 pounds. ( See id. Ex. G.) After this, Dr. Serio issued plaintiff her DOT medical card. When Dr. Serio learned of the conflicting opinions by Drs. Nicholson and Vuong, however, he stated that because he is not an ob/gyn "I am unable to give you an opinion regarding which of these recommendations to respect." ( See id. Ex. F.) To resolve this discrepancy, he recommended that plaintiff be examined by a third ob/gyn prior to being allowed to continue as a truck driver. ( See id.)
Given these conflicting opinions, Venture informed plaintiff that it was concerned for her safety and requested that Dr. Vuong issue a statement indicating that plaintiff met its and DOT's requirements, as well as those set forth in Venture's job description. When Dr. Vuong failed to respond, Venture placed plaintiff on a medical leave of absence pending the resolution of the conflicting opinions. It informed plaintiff that pursuant to the ICSA, she could hire a qualified driver to drive the truck and perform the necessary duties.
On April 8, 1998, plaintiff filed a claim of pregnancy discrimination with the Equal Employment Opportunity Commission, which dismissed her claim on August 2. On October 26, 1999, plaintiff sued Venture in this Court under the Pregnancy Discrimination Act of Title VII, 42 U.S.C. § 2000e(k), alleging that it discriminated against her because she was pregnant. She seeks compensatory and punitive damages and injunctive relief.
Plaintiff now moves for summary judgment, claiming that there is no genuine issue of material fact that Venture discriminated against her because she was pregnant. Venture has filed a cross-motion for summary judgment, seeking to dismiss plaintiff's claim on the grounds that she is not an employee and thus cannot bring a claim under the PDA, and that in any event, it did not discriminate against her.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) ( en banc), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
B. Whether Plaintiff was an Employee under Title VII
This Court must first determine whether plaintiff was Venture's employee, or whether she was an independent contractor. If plaintiff was not an employee, she cannot maintain her Title VII claim against Venture. See 42 U.S.C. § 2000e(f) (West 1999). "With magnificent circularity, Title VII defines an employee as `an individual employed by an employer[;]" thus, the Fifth Circuit has adopted the "economic realities" test in order to determine whether an individual is an employee under Title VII. Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir. 1986), citing Mares v. Marsh, 777 F.2d 1066, 1067-68 (5th Cir. 1985). In Broussard, under facts similar to this case, the Fifth Circuit evaluated a number of factors and concluded that plaintiff was not an employee, but rather an independent contractor. 789 F.2d at 1161. The Fifth Circuit has consistently held that the most important factor in this inquiry — although not alone determinative — is whether the "employer" controlled the individual's conduct, that is, "the means and manner of the worker's performance." Bloom v. Bexar County, Texas, 130 F.3d 722, 726 (5th Cir. 1997), internal quotation marks omitted, citing Mares, 777 F.2d at 1067; see also Broussard, 789 F.2d at 1160. The factors pertinent to this inquiry are: (1) ownership of the equipment necessary to perform the job; (2) responsibility for costs associated with operating that equipment and for license fees and taxes; (3) responsibility for obtaining insurance; (4) responsibility for maintenance and operating supplies; (5) ability to influence profits; (6) length of job commitment; (7) forms of payment; and (8) directions on schedules and performing work. See Broussard, 789 F.2d at 1160.
Additional relevant factors include: (1) 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; (2) the skill required in the particular occupation; (3) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (4) whether annual leave is afforded; (5) whether the work is an integral part of the business of the "employer;" (6) whether the worker accumulates retirement benefits; (7) whether the "employer" pays social security taxes; and (8) the parties' intention. See id., citing Spirides v. Reinhardt, 613 F.2d 826, 832 (D.C. Cir. 1979). A review of these factors establishes that plaintiff was an independent contractor.
First, Cole owned the Ford truck necessary to perform her job. ( See Def.'s Mot. Summ. J. Ex. C ¶ 5(b); Ex. A ¶ 10, Affidavit of Kirby Pugh, Venture's Vice President of Safety Regulation and Compliance; Ex. J, Registration of plaintiff's vehicle.) She was responsible for the costs associated with operating her equipment and for license fees and taxes. ( See id. Ex. C ¶ 6, Appendix C; Ex. A ¶ 19.) With the exception of liability and other insurance that Venture is required to carry by law, plaintiff was responsible for maintaining insurance on her truck, including bobtail, cargo and physical damage insurance. ( See id. Ex. C ¶ 6; Ex. A ¶ 20.) Plaintiff was responsible for her own maintenance and operating supplies. ( See id. Ex. C ¶ 6.) She worked for Venture for about four months, but either party retained the right to cancel the ICSA without cause, upon thirty days written notice to the other party. ( See id. Ex. C, ¶ 1(d).) Venture paid plaintiff by the job, based on a percentage of line haul revenue, and these payments were not considered wages under I.R.C. § 3401(a). ( See id. ¶ 5(a), Appendix B, ¶ B; Ex. A, ¶ 17.) In addition, plaintiff was responsible for paying social security and payroll taxes, and she did not receive any leave or retirement benefits from Venture. ( See id. Ex. A, ¶¶ 18, 22.) Clearly, under the terms of the ICSA, the parties intended that plaintiff be an independent contractor, not a Venture employee. ( See id. Ex. C, ¶ 5(a).)
Last, and most important, although Venture directed when and where plaintiff picked up and delivered cargo, plaintiff alone controlled the manner and means in which she performed her work, including the method of transport, the operation of her vehicle, the route selected, and the selection, hiring and firing of drivers. ( See id. Ex. C, ¶ 3; Ex. A, ¶¶ 11-13.) Plaintiff offers no evidence to dispute these facts. Therefore, the Court finds that here, as in Broussard, plaintiff was an independent contractor, not an employee under Title VII. 789 F.2d at 1161. Even if plaintiff were an employee, however, she has not demonstrated that Venture discriminated against her in violation of Title VII.
C. Plaintiff's Discrimination Claim
Title VII makes it unlawful for an employer to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment, because of her sex. See 42 U.S.C. § 2000e. Congress passed the PDA in 1978, which amended the definition of sex to encompass discrimination on the basis of pregnancy, childbirth or related medical conditions. See id. § 2000e(k). Under the PDA, an employer must treat a pregnant woman the same for all employment related purposes as other persons who are not pregnant but who are similarly affected in their ability or inability to work. See id.; see also 29 C.F.R. § 1604.10 (West 2000).
29 C.F.R. § 1604.10 contains guidelines on discrimination on the basis of sex. It provides in pertinent part:
(a) A written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy, childbirth or related medical conditions is in prima facie violation of Title VII.
(b) Disabilities caused or contributed to by pregnancy, childbirth, or related medical conditions, for all job-related purposes. shall be treated the same as disabilities caused or contributed to by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment. Written or unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy, childbirth or related medical conditions on the same terms and conditions as they are applied to other disabilities.
. . .
(c) Where the termination of an employee who is temporarily disabled is caused by an employment policy under which insufficient or no leave is available, such a termination violates the Act if it has a disparate impact on employees of one sex and is not justified by business necessity.29 C.F.R. § 1604.10 (West 2000), emphasis added. The Appendix to § 1604 provides a clear explanation and illustration of these issues:
Q. If, for pregnancy-related reasons, an employee is unable to perform the functions of her job, does the employer have to provide her an alternative job?
A. An employer is required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other temporarily disabled employees, whether by providing modified tasks, alternative assignments, disability leaves, leaves without pay. etc. For example, a woman's primary job function may be the operation of a machine, and, incidental to that function, she may carry materials to and from the machine. If other employees temporarily unable to lift are relieved of these functions, pregnant employees also unable to lift must be temporarily relieved of the function.
29 C.F.R. § 1604, App., Question Answer 5 (West 2000), emphasis added. Thus, if any employee, pregnant or not, is medically unable to perform his duties, the employer must treat that employee in the same manner as any other similarly incapacitated employee.
The Court must analyze a PDA claim the same way it analyzes other Title VII discrimination claims. See Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). Plaintiff may establish a claim of discrimination under a number of theories, including intentional discrimination (disparate treatment) and disparate impact. See Garcia v. Woman's Hospital of Texas, 97 F.3d 810, 813 (5th Cir. 1996). Under the first, plaintiff must prove that her employer intended to discriminate against her because she was pregnant. See id. In order to prove disparate impact, however, it is unnecessary to provide evidence of discriminatory intent. See id., citing Griggs v. Duke Power Co., 401 U.S. 424, 430-32, 91 S.Ct. 849, 853-54 (1971). Disparate impact claims involve employment practices "that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15 (1977); see also Garcia, 97 F.3d at 813.
In order to establish a prima facie case under the disparate impact theory, plaintiff must "isolate and identify a particular employment practice which is the cause of the disparity [in treatment] and provide evidence sufficient to raise an inference of causation." Garcia, 97 F.3d at 813. In other words, she must prove that Venture's weight-restriction policy unfairly affected pregnant women. See id. at 814 (holding that plaintiff could have established prima facie case by introducing evidence that no pregnant woman would be advised by her doctor to lift 150 pounds); see also 29 C.F.R. § 1604.10 (a). Plaintiff has introduced no evidence that all pregnant women are prohibited from lifting sufficient weight to enable them to continue to work as truck drivers. Further, this Court can imagine a number of medical conditions that would render nonpregnant employees likewise unable to meet the strictures of a DOT'S and Venture's physical requirements. Assuming plaintiff could establish a prima facie case, however, defendant has successfully overcome it by showing that its policy was justified by a job-related business necessity required for safe and efficient job performance. See Zuniga v. Kleberg County Hospital, Kingsville, Texas, 692 F.2d 986, 991 (5th Cir. 1982) (employer may rebut prima facie case by articulating job-related business necessity); accord Allison v. Citgo Petroleum Corp., 151 F.3d 402, 424 (5th Cir. 1998) (same); 29 C.F.R. § 1604.10 (c) (same).
Venture submits that a truck driver responsible for transporting cargo must frequently push, pull or move up to fifty pounds and occasionally push, pull or move up to 100 pounds to secure cargo in connection with her duties. ( See Def.'s Mot. Summ. J. Ex. A, ¶¶ 26, 27.) That truck drivers must be able to exert force of this magnitude is a job-related business requirement, which is necessary to the safe and efficient performance of transporting cargo. Plaintiff has offered nothing that indicates that Venture could have (or should have) used some other nondiscriminatory practice to satisfy this necessity. See E.E.O.C. v. Premier Operator Services, Inc., 75 F. Supp.2d 550, 555 (N.D. Tex. 1999), citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375 (1975) (holding that burden shifts back to plaintiff to prove employer could have used other nondiscriminatory practice). Thus, her disparate impact claim fails.
To make out a prima facie case under the disparate treatment theory, plaintiff would have to show, inter alia, that she was, indeed, qualified for the position she lost, and that others similarly situated were more favorably treated. See Urbano, 138 F.3d at 206. She has not done so. First, the evidence indicates that plaintiff was not qualified to be a truck driver. Venture's job description calls for exertion of force in excess of 100 pounds, and Dr. Vuong's second letter, which was the least conservative opinion offered, advised that plaintiff could liftup to 100 pounds. Further, given the three conflicting medical opinions submitted by plaintiff in a short period of time, it was not clear that plaintiff was able to lift 100 or even fifty pounds safely. This is especially true considering that the most conservative weight restriction was issued by her regular, treating ob/gyn, who was familiar with her history of smoking and two spontaneous miscarriages. ( See Def.'s Mot. Summ. J. Ex. L.) In addition, it appears that Dr. Vuong did not have an adequate basis for his opinions, since there is no evidence that he considered plaintiff's medical history. In addition, when given the opportunity, he failed to clarify the conflict between his own opinions or between his opinions and Dr. Nicholson's. Thus, Venture took reasonable measures when it sought to resolve the discrepancy in the medical opinions to ensure that Cole did, in fact, conform to the necessary qualifications. A similar situation could have arisen with any "employee" who had a limiting injury and presented three conflicting opinions as to how much force he could safely exert. Every "employer" has a vested interest in ensuring that its "employees" meet applicable requirements necessary to performing their regular duties. This Court therefore finds that Venture has provided a legitimate nondiscriminatory reason for its treatment of plaintiff, and she has offered nothing to rebut it. See Allison, 151 F.3d at 424 (observing that it is the rare case in which an employer's business necessity defense in a disparate impact case does not also serve as a legitimate nondiscriminatory reason for an adverse employment action in a disparate treatment case).
Moreover, Venture avers that it has disqualified and/or suspended nonpregnant truck drivers who failed to meet DOT requirements, Venture Standards or the physical qualifications in Venture's job description. It thus appears that Venture treated plaintiff no differently than other temporarily unqualified "employees." Again, plaintiff has presented no evidence to dispute this.
In sum, even if plaintiff were Venture's employee for Title VII purposes, she fails to meet either the disparate impact or disparate treatment tests of discrimination, and her PDA claim must be dismissed.
III. Conclusion
For the foregoing reasons, plaintiff's motion for summary judgment is denied, and defendant's motion is granted.
New Orleans, Louisiana, this 30th day of March, 2000.