Opinion
No: 99-3613
March 5, 2001
On December 1, 1999, plaintiff filed this lawsuit against Eastside Auto, Truck and Tire Repair d/b/a Cargo Express (Eastside) alleging this Court's jurisdiction pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. and 28 U.S.C. § 1331 and 2204. Plaintiff also contends that this Court has supplemental jurisdiction over her claims pursuant to the Louisiana Constitution and Louisiana law including, but not limited to, La. R.S. 23:301.
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Plaintiff alleges that she was subjected to sexual harassment at her workplace and forced to work in a sexually hostile environment. Plaintiff also claims that defendant intentionally, willfully and wantonly refused to pay the wages owed to her. On February 13, 2001, defendant filed a motion for summary judgment asserting that the Court lacks subject matter jurisdiction over this lawsuit because Eastside is not an employer pursuant to Title VII and La. R.S. 23:301, et. seq.
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According to La. R.S. 23:302(2) (West 2001):
"Employer" means a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. (Emphasis added).
Plaintiff's counsel has orally informed the Court that plaintiff has no objection to the granting of the motion for summary judgment with respect to her state claims.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.C.P 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case.
Edwards v. Your Credit. Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."
Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53,quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of her claim. "[A] complete failure-of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).
Id. ( citing Celotex Corp., 477 U.S. at 321-23, 106 S.Ct. at 2551-53).
Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553.
"Factual controversies are construed in the light most favorable to the non movant, but only if both parties have introduced evidence showing that an actual controversy exists. This Court does not, "however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.
Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) ( en banc).
Little at 1075 (emphasis in original).
The issue raised is whether defendant employed a sufficient number of employees to meet Title VII's definition of "employer." The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. 42 U.S.C. § 2000e(b).
42 U.S.C. § 2000e(b) (West 2001) states:
The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person[.](Emphasis added).
Plaintiff was employed by defendant from July, 1997, to May, 1998, and September, 1998, to October 12, 1998, the date she was terminated. As stated, defendant contends that it did not employ the requisite number of persons to qualify as an employer during the time period that plaintiff was employed. In support of its contention, defendant has submitted copies of its "quarterly reports of wages paid" which were filed with the Louisiana Department of Labor.
Plaintiffs exhibit P-1.
Defendant's exhibits D-1-a, D-1-b, D-1-c, and D-1-d.
Plaintiff argues that she has conducted an exhaustive review of defendant's exhibits and states in an affidavit that the documents do not accurately reflect all of the individuals employed by defendant during the relevant time period. Plaintiff contends that there are twelve individuals who were omitted from some of the defendant's quarterly reports or never listed at all.
Plaintiff's exhibit P-1.
Plaintiff represents that the following names were either omitted from some of the defendant's exhibits or were never listed at all: Shannon Baudy, Adrian Johnson, James Hoyt, Robert (last name unknown), Larry Verrett, Theron Charlo, Nakeisha Peters, Gregory Wheeler, Larry Green, Emmitt Miller, Edward Washington, and Freeman Jackson. The Court notes that on defendant's pleadings and exhibits, Theron Charlo's last name is spelled as "Chariot" and Nakeisha Peter's first name is spelled as "Nakisha."
Defendant attempts to refute plaintiffs contention by directing the Court to its quarterly wage reports and arguing that the names plaintiff listed are in fact on the reports with the exception of four names. According to the defendant, only four names listed by plaintiff are missing from its exhibits. Those are: Shannon Boudy, Larry Verret, James Hoyt, and Theron Chariot, all of whom are alleged to be independent contractors operating underwritten lease agreements. Defendant argues that those four employees should not be counted by the Court when it determines whether defendant has the requisite number of employees required to qualify it as an employer under Title VII.
Defendant has not provided the Court with copies of the lease agreements.
The Court notes that in paragraph five of Edward Wiltz' (president and secretary of Eastside) second affidavit, which is attached to defendant's reply memorandum, he represents that only Shannon Baudy, James Hoyt, and Theron Chariot are independent contractors. Mr. Wiltz does not mention Larry Verrett's name in the affidavit.
The Court's review of the quarterly wage reports finds that six of the twelve names listed by the plaintiff are on the quarterly wage reports. The Court notes that the four persons identified by defendant as independent contractors are not on the quarterly wage reports. The Court finds no record of an Adrian Johnson in the documentation presented. Furthermore, the Court cannot determine if the Robert (LNU) listed by plaintiff is the same person as Robert Norwood listed by defendant.
Nakisha Peters appears on the reports for the second and third quarters of 1998. Exh. D-1-c, D-1-d. Gregory Wheeler and Larry Green appear on the third quarter report of 1997, and the first, second and third quarter reports of 1998. Exh. D-1-a, D-1-b, D-1-c, and D-1-d. Emmitt Miller appears on the first quarter report of 1998. Exh. D-1-b. Edward Washington appears on the third quarter report of 1998.Exh. D-1-d. Freeman Jackson appears on the third quarter report of 1997. Exh. D-1-a.
The Court notes that there is a Larry Johnson who appears in the 1998 second quarter report. In paragraph six of Mr. Wiltz' second affidavit, he states that Adrian Johnson is unknown to him and that Mr. Johnson has never been an employee or an independent contractor.
The "payroll method" is the test used to determine whether an entity meets the requisite employees to qualify as an employer under Title VII.
Under this test, "all one needs to know about a given employee for a given year is whether the employee started or ended employment during that year and, if so, when. He is counted as an employee for each working day after arrival and before departure." [Walters], 519 U.S. at 211, 117 S.Ct. at 665-66. What is ultimately critical is the existence of an employment relationship, as is most readily demonstrated by an individual's appearance on the employer's payroll. Id., 519 U.S. at 211, 117 S.Ct. at 666. "[An employee who works irregular hours, perhaps only a few days a month, will be counted." Id., 519 U.S. at 210, 117 S.Ct. at 665. Thus, some part-time workers may be counted as employees. On the other hand, "an individual who appears on the payroll but is not an "employee" under traditional principles of agency law, see, e.g., Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-324, 112 S.Ct. 1344, 1348-1349, 117 L.Ed.2d 581 (1992), would not count." Id., 519 U.S. at 211, 117 S.Ct. at 666.
Walters v. Metropolitan Educational Enterprises, 519 U.S. 202, 117 S.Ct. 660, 137 L.Ed 2d 644 (1997); Tyler v. Intl. Brotherhood of Electrical Workers, 2000 WL 17839 (E.D.La. 2000)(Roby, M. J.); Sharp v. Earth Science Laboratories. Inc., 1999 WL 493274 (E.D.La. 1999)(Clement, J.).
Sharp at*2 (quoting Walters)
A review of defendant's exhibits shows that in two instances the defendant stated in its quarterly wage reports that it employed at least 15 persons at a given time during plaintiff's tenure. Although the affidavit of Edward Wiltz, states that "EASTSIDE employed no more than 13 workers on any given day during the 3rd quarter of 1997 as illustrated by Defendant's Exhibit 1-a" and "EAST SIDE employed no more than 12 workers on any given day during the 3rd quarter of 1998 as illustrated by Defendant's Exhibit 1-d, " the exhibits are not clear on those points. Defendant lists the names of 15 workers, including plaintiff, in the 1997 third quarter report. Plaintiffs name is also found listed along with 17 other workers in the 1998 third quarter report.
Exh. D-1-a.
Exh. D-1-d.
It can certainly be argued that a review of defendant's exhibits demonstrates that at least fifteen individuals had an employment relationship with Eastside during a portion of the time period that plaintiff was employed by defendant. More importantly, however, the determination of whether an individual is an employee or an independent contractor is a fact intensive inquiry. Defendant has not provided this Court with information sufficient to apply the factors noted in theCole case and such a determination is critical to whether defendant is an employer in this case.
In Cole v. Venture Transport, Inc., 2000 WL 335743, *3 (E.D.La. 2000)(Vance, J.), the court stated:
"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, . . . 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).
The Court finds that there are genuine issues of material fact which would make the granting of summary judgment with respect to plaintiff's federal claims inappropriate at this time. Accordingly,
IT IS ORDERED that defendant's motion for summary judgment with respect to plaintiff's federal claims is DENIED.
IT IS FURTHER ORDERED that defendant's motion for summary judgment with respect to plaintiffs state claims is GRANTED.