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holding that even though the relationship lasted over a six year period, the year-to-year contracts between the parties weighed in favor of independent contractor
Summary of this case from DeSouza v. EGL Eagle Global Logistics LPOpinion
5:01-CV-374
October 11, 2001
Ruth M. Pollack, ESQ., Lynn R. Kotler, ESQ. Pollack Kotler, Mineola, New York, Attorneys for Plaintiffs.
John Sullivan, ESQ., Christine Button, ESQ., Kirkpatrick Lockhart, New York, New York, Attorneys for Defendants.
MEMORANDUM — DECISION AND ORDER
I. INTRODUCTION
Plaintiffs' amended complaint asserts claims against each Defendant for sex discrimination and sexual harassment pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"); violations of the Equal Protection Clause of Fourteenth Amendment to the United States Constitution; and violations of the Violence against Women Act ("VAWA"). In addition, Plaintiffs assert state law claims alleging violations of the equal protection clause of the New York State Constitution; violations of the New York State Human Rights Law ("NYSHRL"); intentional infliction of emotional harm; hostile work environment, retaliation, intentional infliction of emotional distress; negligent infliction of emotional distress; gross negligence; assault, battery, and negligent retention.
Plaintiffs filed their amended complaint in the Southern District of New York on September 8, 2000. On November 8, 2000, Defendants filed a motion for an order, pursuant to 28 U.S.C. § 1404, to transfer the action to the Northern District of New York. On March 6, 2001, the action was transferred to the Northern District of New York.
II. BACKGROUND
Plaintiff Gladys Ann Clesi owned and operated a business called Independent Janitorial Services ("IJS"). IJS provided janitorial services to Defendant Zinc Corporation of America ("Zinc") from April 1994 until April 2000. Ms. Clesi submitted monthly invoices to Zinc for the services that her company performed, and Zinc paid those invoices by checks made out to IJS and Ms. Clesi.Defendant Wendall Wainwright ("Wainwright") is employed by Zinc as the General Foreman of the Yard Crew Carpenter Shop. Defendant Bill Tuohy ("Tuohy") is employed by Zinc as a Human Resources Manager; and Defendant Larry Straw ("Straw") is employed by Zinc as the General Manager.
Plaintiff Gladys Ann Clesi alleges that during the course of her employment with Zinc Defendants Tuohy and Wainwright subjected her to continuous and pervasive sexual harassment, touching, invasion of privacy and indecent conduct. In particular, Plaintiff claims that Wainwright displayed calendars with pictures of naked women in her view as she performed her work. Plaintiff also asserts that Wainwright spied on her while she performed her work duties, and at one point, fondled her in an inappropriate sexual manner. She claims that she did not consent to this touching.
Plaintiffs Gladys Ann Clesi and her husband, Plaintiff John Clesi, alleged that they informed Defendant Straw and Defendant Tuohy of these improper activities in or about April 1996. According to Plaintiffs, neither Defendant remedied the situation. Instead, Plaintiffs claim that Defendants hung caricatures of Plaintiffs in conference rooms prior to employee meetings and otherwise belittled Plaintiffs' attempts to counteract the alleged sexual discrimination.
Plaintiffs also claim that they suffered retaliation at the hands of Defendants for complaining about discrimination. Specifically, Ms. Clesi believes that Defendants did not inform her that she was required to complete OSHA training in order to continue in her position with Zinc. Because she failed to complete the required training, she was fired. She claims that her termination was a retaliatory response to her complaints about her work environment.
Presently before the Court is Defendants' motion to dismiss the Title VII claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the basis that Plaintiff Gladys Ann Clesi is an "independent contractor" and therefore not covered under Title VII.
II. DISCUSSION A. Fourteenth Amendment Claims and Violence Against Women Act Claims
Defendants submitted affidavits in support of their motion, thereby providing Plaintiffs with notice that the motion could be treated as one for summary judgment and an opportunity to submit opposing affidavits in response thereto. Since the Court has relied on papers outside the pleadings, it will treat this motion as one for summary judgment.
As a preliminary matter, Plaintiffs claim that Defendants have violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This argument is unavailing. The Equal Protection Clause only proscribes unlawful discriminatory practices of the State. See Corrente v. St. Joseph's Hosp. and Health Ctr, 730 F. Supp. 493, 500 (N.D.N Y 1990) (citing National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 461, 102 L.Ed.2d 469 (1998) (parenthetical omitted)). The Supreme Court long ago made clear that the Equal Protection clause of the Fourteenth Amendment applies to discriminatory action by the State and not private conduct, "however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948) (footnote omitted). Since Defendants in the present case were not acting on behalf of the state, Plaintiffs' Fourteenth Amendment Equal Protection claims must be dismissed.
Plaintiffs do not respond to Defendants' arguments concerning Plaintiffs' federal Equal Protection Clause claims.
Plaintiffs also make claims under the remedial provisions of the Violence Against Women Act ("VAWA"). The Supreme Court, in United States v. Morrison, held that there is no private right of action under VAWA because neither the Commerce Clause nor the Fourteenth Amendment enforcement clause provided Congress with authority to enact such a remedial provision. 529 U.S. 598, 627 (2000) (holding that "Congress' effort in § 13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under § 5 of the Fourteenth Amendment."). Therefore, Plaintiffs' claims under the remedial provisions of VAWA must also be dismissed.
B. Title VII Claims
As stated, Defendant Zinc maintains that summary judgment should be granted on the Title VII claim because Plaintiff Clesi is not an "employee" for the purposes of Title VII. Title VII only protects employees, not independent contractors. See Tadros v. Coleman, 717 F. Supp. 996, 1003 (S.D.N.Y. 1989), aff'd, 898 F.2d 10 (2d Cir. 1990). The Second Circuit has recently clarified that the relevant inquiry for determining whether a person is an employee or "independent contractor" for purposes of Title VII is dependent on the common law of agency. Such inquiry is in general governed by the thirteen factors "articulated by the Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)." Eisenberg v. Advance Relocation Storage, Inc., 237 F.3d 111, 113-14 (2d Cir. 2000).
Those factors are as follows:
[(1)] the hiring party's right to control the manner and means by which the product is accomplished . . .; [(2)] the skill required; [(3)] the source of the instrumentalities and tools; [(4)] the location of the work; [(5)] the duration of the relationship between the parties; [(6)] whether the hiring party has the right to assign additional projects to the hired party; [(7)] the extent of the hired party's discretion over when and how long to work; [(8)] the method of payment; [(9)]the hired party's role in hiring and paying assistants; [(10)] whether the work is part of the regular business of the hiring party; [(11)] whether the hiring party is in business; [(12)] the provision of employee benefits; and [(13)] the tax treatment of the hired party.
Reid, 490 U.S. at 751-52 (internal footnotes omitted) (citation omitted). If the facts underlying the inquiry into claimant's employment status are not disputed, the Reid inquiry is a question of law. See id. at 115. The Court will address each of these factors seriatim.
1. Control of Manner and Means of Work
Great weight is afforded to the first factor: i.e., whether the hiring party controls the "`matter and means' by which the worker completes the assigned tasks." Eisenberg, 237 F.3d at 114 (citation omitted). In Cobb v. Sun Papers, Inc., 673 F.2d 337, 341 (11th Cir. 1982), the Eleventh Circuit upheld the trial court's finding that the "most critical fact" in determining whether a janitor was an independent contractor was whether the janitor employed other people to perform the work with or for him. In the instant case, Ms. Clesi employed and insured two other workers. Indeed, IJS furnished all the labor necessary to perform janitorial services at Zinc. See Affidavit of Doug Beachard, sworn to December 14, 2000 ("Beachard Aff."), at Exhibit A. In addition, although the contract sets forth the quantity of work to be performed, it does not specify the hours in which the work is to be completed. The fact that Zinc may have required Ms. Clesi or her employees to work at the mines at particular times during the day is not by itself evidence that she was an employee. It is not uncommon for a company to prefer that janitorial services be undertaken at particular hours. Zinc may very well have made this decision with an eye to convenience and smooth operation of the mines. Some control by the employer over the party remains consistent with a finding that the party is an independent contractor. See Reid, 490 U.S. at 752 (finding the working party to be an independent contractor even though the hiring party "directed enough of [the working party's] work to ensure" that he met the hiring partner's specifications).
The Court finds that because Ms. Clesi employed and insured two other workers and was free to complete her work without undue supervision, this factor supports a finding that Ms. Clesi is an independent contractor.
2. The Skill Required
The second factor in the Reid analysis is the skill required to perform the task. In Reid, the worker was a sculptor, which is commonly considered a skilled occupation. See Reid, 490 U.S. at 753. While Ms. Clesi's job does not fall into the category typically requiring "specialized skills," her duties were not "an essential part of the company's normal operations[,]" NLRB v. United Ins. Co. of Am., 390 U.S. 254, 259 (1968). Rather, Ms. Clesi performed cleaning duties that were unrelated to the production of the mine and which lend themselves to being performed by an independent contractor. See id. This factor also weighs in favor of a finding that Ms. Clesi is an independent contractor.
3. The Source of the Instrumentalities and Tools
Ms. Clesi provided her own tools and cleaning supplies. She also provided tools and cleaning supplies for her employees. See Beachard Aff. at ¶ 9. In addition, Ms. Clesi had complete control over the supplies. Therefore, this factor weighs in favor of a finding that Ms. Clesi is an independent contractor.
4. The Location of the Work
Ms. Clesi completed her work at the mine. Often, independent contractors will complete their work off-site; however, in this instance, the nature of Ms. Clesi's work required that she undertake the cleaning tasks on-site. This Court thus finds that the fourth Reid factor, the location of the work, rests "essentially in equipose" and "do[es] not meaningfully cut in favor of either the conclusion that [Ms. Clesi] is an employee or the conclusion that . . . she is an independent contractor." Eisenberg, 237 F.3d at 114 (citations omitted).
5. The Duration of the Relationship Between the Parties
Ms. Clesi worked for Zinc between 1994 and 2000. However, Ms. Clesi operated her business under year-to-year contracts. See Beachard Aff. at Exhibit B. Either party could terminate the contract at any time. See id. Zinc retained the right to accept bids for cleaning services if it were to become unsatisfied with the work that IJS performed. See id. The Court, therefore, finds that this factor weighs in favor of a finding that Ms. Clesi is an independent contractor.
6. Whether the Hiring Party Has the Right to Assign Additional Projects
Defendant claims that the tasks that Ms. Clesi performed were limited to those described in her contract, which outlined thirteen tasks for which she was responsible. See Beachard Aff., at Exhibit A. Plaintiffs, on the other hand, claim that Ms. Clesi was routinely required to complete additional tasks. While Plaintiffs are correct that "independent contractors are typically hired only for particular projects[,]" Aymes v. Bonelli, 980 F.2d 857, 863 (2d Cir. 1992), a finding that Plaintiff performed the occasional additional task is not dispositive in deciding this factor. In Aymes, the Second Circuit held that even though the defendant retained the right to assign additional tasks to the plaintiff, the plaintiff was still an independent contractor. Id. at 864. Thus, the fact that Zinc may have required Ms. Clesi to undertake additional cleaning duties when the need arose is not inconsistent with her role as an independent contractor. See id. Thus, this factor does not support a finding that Ms. Clesi is an employee.
7. The Extent of the Hired Party's Discretion Over When and How Long to Work
Ms. Clesi's contract enumerated various tasks that she was required to perform on the Zinc premises. See Beachard Aff. at Exhibit A. As Defendants acknowledge, Ms. Clesi's control over her work hours was partly limited because the smooth operation of Zinc's mining facilities required that janitorial services be performed at certain hours of the day. This factor is "essentially in equipose" and does not affect the determination of Ms. Clesi's employment status.
8. The Method of Payment.
Zinc made out checks to Ms. Clesi, payable to IJS, care of Ms. Gladys Clesi. These checks were payment of the monthly invoices that Ms. Clesi submitted to Zinc for the services provided by her and her two employees. See Beachard Aff. at Exhibit E. Ms. Clesi controlled the manner in which the payments were distributed to her employees. Ms. Clesi was not on Zinc's payroll and did not receive wages from Zinc. See Beachard Aff. at ¶¶ 7, 9; see also Tagare v. NYNEX Network Sys., Co., 994 F. Supp. 149, 158 (S.D.N Y 1997) (finding that monthly payments that indicate installment payments "suggest an independent contractor relationship"). Therefore, the Court concludes that this factor weighs in favor of a finding that Ms. Clesi is an independent contractor.
9. The Hired Party's Role in Hiring and Paying Assistants
Ms. Clesi hired two assistants and she paid them out of the payments Zinc made to IJS. Ms. Clesi also provided compensation insurance for her employees and provided them with liability and disability insurance. See Beachard Aff. at Exhibits A, C, F. This factor weighs heavily in favor of a finding that Ms. Clesi was an independent contractor.
10. Whether the Work is Part of the Regular Business of the Hiring Party
Zinc's regular business was mining. Ms. Clesi performed janitorial services for Zinc. In no way did she contribute to Zinc's regular business. The Court finds that this factor further suggests that Ms. Clesi is an independent contractor.
11. Whether the Hiring Party is "in business"
This factor does not tilt the analysis in either direction. Certainly, Zinc was in business as a mining company, but this does not direct the Court to find that Ms. Clesi is or is not an independent contractor.
12. The Provision of Employee Benefits
Ms. Clesi did not receive and was not entitled to employee benefits during the period in which she provided custodial services to Zinc. See Beachard Aff. at ¶ 8. These benefits were not available to her at any time. Again, this factor suggests that Ms. Clesi is an independent contractor.
13. The Tax Treatment of the Hired Party.
Ms. Clesi was paid in installments. See Beachard Aff. at Exhibit E. Zinc did not deduct any taxes from its payments to Ms. Clesi. She was responsible for her own tax. She did not receive a W-2 form from Zinc. See Beachard Aff. at ¶ 7. This factor strongly suggests that Ms. Clesi is an independent contractor and not an employee of Zinc.
III. CONCLUSION
In the present case, an application of the thirteen Reid factors to Plaintiff's employment situation clearly establishes that she ran her own business, that she agreed to perform certain specific functions for Zinc and that she was paid as a contractor rather than as an employee. No reasonable juror could find that Ms. Clesi is an employee instead of an independent contractor of Zinc and, therefore, she cannot state a claim against Zinc under Title VII. Accordingly, this Court grants Defendants' motion for summary judgment with respect to Plaintiffs' Title VII claims.
Dismissal of the Title VII claims eliminates Plaintiff's federal claims. Therefore, the Court declines to accept jurisdiction of Plaintiffs' remaining state law claims. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966); 28 U.S.C. § 1367(c). Accordingly, it is hereby:
ORDERED that Defendant's motion for summary judgment is GRANTED in its entirety; and it is further
ORDERED that Plaintiff's pendent state law claims are DISMISSED without prejudice; and it is further
ORDERED that the Clerk of the Court enter judgment in favor of Defendants and close this case.
IT IS SO ORDERED.