Opinion
CIVIL ACTION NO. 3:00-CV-2086-R.
June 30, 2003.
MEMORANDUM OPINION AND ORDER
Defendant, Product Development Corporation's, Motion for Summary Judgment (filed September 20, 2002) is now before this Court. For the reasons discussed below, Defendant's Motion is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE.
I. BACKGROUND
The average person has probably never stopped to consider the means by which those ubiquitous telephone books published by phone companies arrive on his doorstep. This case is brought by a person who was engaged in the delivery of telephone books. Since 1991, Plaintiff, Jim Steehler ("Steehler"), has delivered phone books. During this period he has worked for various companies, including Alternate Postal Direct, Directory Delivery Associates, MDS, and Product Development Corporation ("PDC"), who were subcontractors to major telephone companies such as Southwestern Bell and Verizon. In this case, Plaintiff, alleges that PDC, for which he worked at various times during the years 1996-2000, committed reverse discrimination by paying Hispanic personnel more than non-Hispanics, and giving Hispanics preferential access to the best delivery routes. A more detailed recitation of Plaintiff's factual allegations can be found in this Court's Memorandum Opinion and Order dated February 23,2001. Steehler v. Product Development Corp., 2001 WL 196981, at *1-2 (N.D. Tex. Feb. 23, 2001) (" Steehler I").On June 26, 2000, Plaintiff filed a charge of discrimination with the Texas Commission on Human Rights and the Equal Employment Opportunity Commission; the same day he received his Notice of Right to Sue. Subsequently, on September 22, 2000, Plaintiff timely brought suit in this Court alleging violations of Title VII, "Texas common law," and 42 U.S.C. § 1981, 1983, and 1985. In Steehler I, this Court dismissed Plaintiff's claims under §§ 1981, 1983 and 1985. Steehler I, 2001 WL 196981, at *3-4. Defendant's now seeks summary judgment on Plaintiff's remaining Title VII claim.
II. ANALYSIS
A. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the non-moving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the non-moving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
B. TITLE VII JURISDICTION
An employer-employee relationship must exist between a plaintiff and defendant in order for a plaintiff to have standing to bring a Title VII claim of discriminatory treatment as an employee. See Diggs v. Harris Hospital-Methodist Inc., 874 F.2d 270, 272 (5th Cir. 1988); Broussard v. L.H. Bossier Inc., 789 F.2d 1158, 1159 (5th Cir. 1986). Defendant's Motion asserts that Steehler's labor relationship with PDC was that of an independent contractor rather than an employee, and that Plaintiff therefore lacks standing to bring a Title VII claim.
This is not a case in which the plaintiff is alleging that Defendant has interfered with plaintiff s subsequent employment opportunities with another employer. See Broussard, 789 F.2d at 1159; NME Hospitals, Inc. Rennels, 994 S.W.2d 142, 144-47, 147 n. 2 (Tex. 1999) (discussing standing requirements in employment interference cases).
To determine whether an individual is an employee or an independent contractor, the Fifth Circuit applies the "hybrid economic realities/common law control test" first outlined by the D.C. Circuit in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979). Diggs, 874 F.2d at 272. Under this test, "the right to control is the most important factor in determining employee status." Broussard, 789 F.2d at 1160. Among the factors used to determine whether an employer has the right to control the employee are: ownership of equipment used to perform the job, responsibility for the costs of maintaining that equipment (such as licensing and taxes), length of employment period, payment methods, and directives on schedules and how the work is to be performed. Id. The right to control alone, however, is not determinative. Other relevant factors from Spirides include: (1) the kind of occupation, with reference to whether the work is generally done under the direction of a supervisor or without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether hourly or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the "employer" pays social security taxes; and, (11) the intention of the parties. See Spirides, 789 F.2d at 1160.
Tests such as the hybrid economic reality/common law test are rather unwieldy for courts to apply. Rather than a precise, narrowly-defined test, the hybrid economic reality/common law test provides a long list of factors which assist courts in determining where along a legal spectrum a particular labor relationship lies. In essence, the test requires a court to carefully consider the particular facts of each case, rather than using any general formulas, in order to determine the nature of the labor relationship at issue. See, e.g., Deal v. State Farm Cty. Mutual Ins. Co. of Tx., 5 F.3d 117 (5th Cir. 1993) (application of test to claim of an insurance salesman); Arbaugh v. Y H Corp., 2003 WL 1797893 (E.D.La. April 3,2003) (application of test to claim of restaurant delivery driver); Cole v. Venture Transport, 2000 WL 335743 (E.D.La. March 30,2000) (application of test to claim of truck driver).
After considering the facts of this case, in particular the deposition testimony of Plaintiff (which was taken subsequent to Steehler I), this Court concludes that there is no genuine dispute of material fact over whether Plaintiff was an independent contractor for PDC — he was. Therefore, Plaintiff is without standing to bring his Title VII claim.
Plaintiff used his own cargo van (for which he was responsible for licensing, insurance and other expenses) to make the phone book deliveries. He applied, was hired for, and was paid separately for each job. The terms of his payment varied by job — he was paid either by the book, by the stop, or on some other basis in the case of special jobs. He did not receive health insurance, pension benefits, vacation days, or sick pay. Social security and income tax were not withheld by PDC, instead PDC issued income statements on IRS Form 1099. He did not wear a uniform, and did set his own schedule with respect to when and how deliveries would be made (within the constraints of the deadlines imposed by the phone companies and the delivery hours of the recipient buildings). Plaintiff also had discretion to hire his own employees to complete the telephone book delivery jobs. He hired these additional employees without supervision from PDC, required them to provide their own vans, paid them from his personal funds and issued Form 1099s for them. Finally, Plaintiff was not barred by PDC from working for PDC's competitors. Indeed, PDC actively assisted Plaintiff in getting a contract from one its competitors. From these facts, all of which were admitted by Plaintiff himself in his deposition, it is apparent that PDC did not exercise control over Plaintiff to the degree necessary to establish that he was an employee. Therefore, the Court holds that Plaintiff was an independent contractor.
J.A., Exhibit 1, at R013 ( Deposition of Jim Steehler, at 70) (the "Deposition").
Id., at R012, R018 ( Deposition, at 65, 92).
Id.
Id., at R014, R017 ( Deposition, at 76, 85-86).
Id., at R019, ( Deposition, at 94-95). See also, Id., at R29-36 (Plaintiff's Form 1099s for the years 1996-2000).
Id., at R017 ( Deposition, at 85-86).
Id., at R013, R019, R024 ( Deposition, at 71-72, 96, 148). Moreover, Plaintiff even stated that he had hired someone who had previously been involved in litigation against PDC. Id., at R014 ( Deposition, at 73-74).
Id., at R010-11 ( Deposition, at 60, 64).
Plaintiff's response to this mountain of evidence fails to persuade. Neither the training video Plaintiff was required to watch, the fact that Plaintiff was reimbursed for tolls, parking tickets, and long-distance travel, nor any other issues raised by Plaintiff, are sufficient to establish a dispute of material fact regarding the nature of Plaintiff's labor relationship with PDC. This, of course, should not be read to imply that every iota of evidence in the record supports such a conclusion — for that is not the question before this Court. Instead, it is sufficient that this Court find, as it has, that there is no genuine issue of disputed material fact as to Plaintiff's status as an independent contractor. Because there is no genuine issue of disputed material fact, summary judgment is proper as to Plaintiff's Title VII claim.
Id., at R014-15 ( Deposition, at 76-79). See also, J.A., Exhibit 3, at R60-71 ( Affidavit of Kristi Smaby) (transcript of video). The video instructed Plaintiff on how to fill out administrative forms, to lift with his legs, to wear comfortable clothing, to be courteous, to not place phone books where they would be tripped over, and the like.
Id., at R10, R22 ( Deposition, at 60, 131-32).
C. State Law Claim
It is unclear whether, in addition to Plaintiff's Title VII claim, Plaintiff has also brought a state law claim. Plaintiff's First Amended Complaint (the "Complaint") contains vague assertions that Defendant has violated Texas law. Specifically, paragraph 4 of the Complaint states that: "This action alleges violations of . . . Texas common law," and "Plaintiff further alleges violations of the State of Texas law." However, the Complaint does not state which provisions of state law are alleged to have been violated. Nor has Plaintiff (or Defendant) provided any briefing on the issue of a state law claim.
Plaintiff's First Amended Complaint (filed July 25, 2001), at 2 (¶ 4).
To the extent Plaintiff may have had a state law claim, it too fails. The state law claim would have arisen under the Texas Commission of Human Rights Act (the "TCHRA"). Tex. Lab. Code Ann. § 21.001 et seq. (Vernon 1996 Supp. 2003). Texas courts construing the TCHRA, like their federal counterparts construing Title VII, have applied the hybrid economic realities/common law control test to determine whether a plaintiff qualifies as an "employee" covered by the statute. See, e.g., Thompson v. City of Austin, 979 S.W.2d 676, 681 (Tex.App.-Austin, Apr. 24, 1998). Therefore, to the extent Plaintiff has brought a state law claim, that claim is hereby DISMISSED for reasons identical to those stated above regarding Plaintiff's Title VII claim.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is hereby GRANTED. Plaintiff's claims are hereby DISMISSED WITH PREJUDICE. Each side shall bear its own costs.