Opinion
Civil No. CCB-05-2855, ECF EXEMPT.
February 27, 2006
MEMORANDUM
Now pending before the court is defendant's motion to dismiss or, in the alternative, for summary judgment. The issues have been fully briefed and no hearing is necessary. Local Rule 105.6. For the reasons that follow, the defendant's motion to dismiss will be granted.
ANALYSIS
In this employment discrimination claim, Valerie Elizabeth Williams ("Williams") alleges that she was discriminated against on the basis of her gender and race by her former employer, defendant Anchorage Marina ("Anchorage"). As Anchorage puts forth a challenge to the court's subject matter jurisdiction, in that it is not a covered employer under the act, the underlying facts and substance of Williams's claim will not be recounted here. Based on a lack of subject matter jurisdiction, Anchorage has moved to dismiss Williams's claim or, in the alternative, for summary judgment.
Here, the fifteen-employee minimum at issue is a jurisdictional question that is not "intertwined with the facts central to the merits of the dispute," and it is thus a "factual dispute" for the court to resolve under Fed.R.Civ.P. 12(b)(1). See Vick v. Foote Inc., 898 F.Supp. 330, 331-32 (E.D.Va. 1995). In reviewing a 12(b)(1) motion, "the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
Williams argues that Anchorage failed to count five of the marina workers as its employees, and that including them would result in Anchorage having the requisite "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year," thus giving the court jurisdiction. See 40 U.S.C. § 2000e(b). Title VII protects only employees, and not independent contractors, see 40 U.S.C. § 2000e-3,3(b), and e(f); see also Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 258 (4th Cir. 1997), and Anchorage asserts that the five workers identified by Williams are actually independent contractors. Anchorage further argues that even if the five "contested employees" were counted, it would still not have 15 employees for the requisite twenty or more calendar weeks.
General principles of common law agency, which focus on the degree of the employer's control over the individual, combined with the so-called "economic realities test," which focuses on the degree to which the individual is dependent upon the business to which it renders service, guide a determination of employee versus independent contractor status in Title VII cases in the Fourth Circuit. Id. at 259-60; Haavistola v. Comm. Fire Co. of Rising Sun Inc., 6 F.3d 211, 220 (4th Cir. 1993). Here, the workers at issue are three security guards and two janitorial staff. Anchorage entered into a Security Services Agreement with Burns International Security Services ("Burns"), under which Burns provides a security guard from 4:00 p.m. to 8:00 a.m., seven days a week. ( See Def's Reply, Exhibit 3) An hourly rate is paid for this service. ( Id.) Under a Janitorial Service Agreement with Broadway Services, Inc. ("Broadway"), Anchorage is provided "complete sanitary maintenance service" for a set monthly contract price. ( See Def's Reply, Exhibit 4) Applying the Fourth Circuit's standard for determining whether these workers are Anchorage's employees, it is clear that these arrangements preclude these individuals from being counted toward the necessary 15 employees for the requisite twenty or more calendar weeks. See Cilecek, 115 F.3d at 258 (Title VII protects employees, not independent contractors).
Under this test, finding control sufficient to make one an employee involves consideration of the following factors: "(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) 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 by time 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." Haavistola, 6 F.3d 211, 222 n. 4.
Under this arrangement, Broadway provides, trains, and carries workers' compensation insurance for its own employees providing the services. Broadway also provides a "route supervisor" who inspects and directs the work of its employees. ( See Def's Reply, Exhibit 4)
Among the more pertinent factors with respect to both the security guards and the janitorial staff are that Anchorage: does not supervise the workers; furnishes the place of work, but not the equipment used; has no control over which individuals are assigned to the marina by Burns or Broadway; has no control over the length of time each individual guard or janitor works at the marina; pays Burns a set rate for the services and pays Broadway a set monthly price; may terminate the contract with Burns and with Broadway upon 90 and 30 days notice respectively; and does not provide annual leave or any retirement benefits to, nor pay any social security taxes for, the Burns guards or the Broadway cleaning personnel. Additionally, neither the work of the guards nor the janitorial staff, while important, is part of Anchorage's integral business as a marina. Finally, the intention of the parties was clearly a contractual relationship between the two companies and not an employment relationship between the workers and Anchorage. ( See Def's Reply, Exhibit 5, Chest Affidavit) The burden of persuading the court that these individuals should be counted as employees of Anchorage rests with Williams, and she has put forth no evidence contesting these factors or making a case to the contrary. See Atkins v. Comp. Sciences Corp., 264 F.Supp.2d 404, 408 (E.D.Va. 2003) (the plaintiff bears the burden of proving that subject matter jurisdiction exists).
Based on the foregoing, the defendant's motion to dismiss will be granted.
As it is clear to the court that the workers in question cannot be counted as employees of Anchorage under Title VII, Anchorage's argument that, even if they were counted it would not amount to 15 employees over the requisite 20 calendar weeks, need not be addressed. It should be noted, however, that Anchorage appears to be correct in this assertion as well. Even counting these five, Anchorage appears to have had 15 or more employees for a maximum of ten full weeks in 2004 and six full weeks in 2005.( See Def's Reply, Exhibit 7, Employees Chart; and Exhibit 5, Chest Affidavit); see, e.g., Foote, Inc., 898 F.Supp. at 332-33 (no jurisdiction where defendant had 15 employees for at most 13 weeks).
A separate order follows.