Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 19 EPD ¶9035, Arthur Takeall, Plaintiff v. Werd, Inc., Defendant., (Mar. 08, 1979), (Mar. 8, 1979)

Arthur Takeall, Plaintiff v. Werd, Inc., Defendant.

United States District Court, Middle District of Florida, Jacksonville Division.Civil Action No. 77-417-CIV-J-M, March 8, 1979

Title VII--Civil Rights Act of 1964

Coverage--Employer--Number of Employees--Contract Engineer.

--The reprisal claims by a former employee had to be dismissed for lack of jurisdiction where the employer charged was not an employer within the meaning of Title VII. The employer did not employ the requisite number of workers to bring it under coverage. A contract engineer hired by the employer was to be considered an independent contractor and not an employee. Likewise, individuals who merely filled in for vacationing regular employees for short periods of time were not to be counted as employees.

Back reference.-- ¶306 .

Civil Rights Act of 1866

Coverage--Reprisal.

--An employee who alleged that he was discharged in retaliation for filing bias charges with the EEOC did not state a cause of action under the 1866 Act.

Back references.-- ¶208 , 622 .

Albert J. Hadeed, Gainesville, Florida, and Jeffrey H. Klink (Mahoney, Hadlow & Adams), Jacksonville, Florida, for Plaintiff.

Peter Reed Corbin (Jones, Corbin & Dickinson), Jacksonville, Florida, for Defendant.

Wood, Jr., D. J.: The present action is before the court on the Motion For Summary Judgment of the defendant WERD, Inc. (hereinafter “WERD”) pursuant to Rule 56 of the Federal Rules of Civil Procedure. This action has been brought by the plaintiff pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq., and 42 U.S.C. §1981 , alleging that the defendant violated the anti-retaliatory provisions of Section 704(a) of Title VII by discharging the plaintiff.

[Motion for Summary Judgment]

In ruling on a motion for summary judgment, it is well settled that the moving party bears the burden of showing that there are no genuine factual issues as to any material fact and that he is entitled to summary judgment as a matter of law. Gossett v. Du-Ra-Kel Corp., 569 F.2d 869 (5th Cir. 1978). However, once a motion for summary judgment is made and properly supported by Affidavits, the opposing party may not rest upon the allegations or denials of his pleadings, but must meet the movant’s affidavits with opposing affidavits setting forth specific facts to show why there is a material issue for trial, or at the every least stating reasons why he cannot do so. FED. R. CIV. P. 56(e); Gossett v. Du-Ra-Kel Corp.; supra; and Golden Oil Co. v. Exxon Co., 543 F.2d 548 (5th Cir. 1976). In the present action, WERD filed its Motion For Summary Judgment in October of 1977, [1] contending that the court was without jurisdiction in this matter since WERD did not constitute an “employer” within the meaning of Section 701(b) of Title VII. [2] WERD filed with its motion affidavits which show on their face that it is not an “employer” within the meaning of Title VII. Other than the mere allegations of his pleadings and other materials incorporated therein by reference, the only sworn affidavit filed by the plaintiff (that of the plaintiff himself) in opposition to the defendant’s motion speaks only to the merits of this case and does not address the jurisdictional issue in question here. For this reason, it is found that the defendant’s Motion For Summary Judgment should be granted.

[Covered Employers]

However, even if all materials (including unsworn materials) submitted by the plaintiff in opposition to WERD’s motion are taken into account, it is still apparent that WERD is not an “employer” within the meaning of Section 701(b) since WERD did not employ the requisite number of employees. In making this determination, it is clear that the court must look not only to the calendar year in which the alleged discriminatory conduct occurred, but also to the calendar year preceding that year (in this case 1975 and 1976). See Slack v. Havens, [10 EPD ¶10,343 ] 522 F.2d 1091 (9th Cir. 1975); EEOC v. Metropolitan Atlanta Girls’ Club, Inc., 416 F.Supp. 1006 (N.D.Ga. 1976); and Utley v. Marks, [4 EPD ¶7793 ] 4 FEP Cases 634 (S.D.Ga. 1972); see also EEOC v. Datapoint Corp., [10 EPD ¶10,590 ] 412 F.Supp. 406 (W.D. Tex. 1976), modified on other grounds, [16 EPD ¶8225 ] 570 F.2d 1264 (5th Cir. 1978); and Coon v. Tingle, [1 EPD ¶9856 ] 277 F.Supp. 304 (N.D.Ga. 1967). On the basis of WERD’s affidavits, it is apparent that it did not employ fifteen (15) or more employees for twenty (20) or more calendar weeks during either 1975 or 1976, and hence it does not constitute an “employer” within the meaning of the Act.

[Contract Engineer]

In reaching this determination, the court agrees that WERD’s “contract engineer” is an independent contractor and not an “employee” as defined in Section 701(f) [3] of Title VII. Although Title VII does not specifically exclude independent contractors, it generally has been held that, consistent with common law agency principles, independent contractors are not employees for Title VII purposes. See Smith v. Dutra Trucking Co., [13 EPD ¶11,460 ] 410 F.Supp. 513 (N.D.Cal. 1976), aff’d, 580 F.2d 1054 (9th Cir. 1978); and Mathis v. Standard Brands Chemical Industries, Inc., [10 EPD ¶10,306 ] 10 FEP Cases 295 (N.D.Ga. 1975). In this case, the court is convinced that WERD did not retain the requisite control over its contract engineer in the performance of his various duties to bring him within the scope of the traditional definition of “employee”. Any control exercised by WERD was as to the final result of the engineer’s duties, and not as to the details and means by which that result was accomplished.

[Fill-in Workers]

The court also agrees that those persons who merely filled in for a very short period of time for regular employees taking a day off or on vacation also should not be counted as “employees”. This case is to be distinguished from those cases where an employer employs regular part-time employees on an ongoing basis. See Pascutoi v. Washburn-McReavey Mortuary, Inc., [10 EPD ¶10,442 ] 11 FEP Cases 1325 (D.Minn. 1975).

[1866 Act Claims]

Finally, the plaintiff’s alternative allegations of retaliation pursuant to 42 U.S.C. §1981 do not state a cause of action upon which relief can be granted. Barfield v. A. R. C. Security, Inc., [9 EPD ¶10,136 ] 10 FEP Cases 789, n.1 (N.D.Ga. 1975); Hudson v. International Business Machines, 9 EPD ¶9991 (S.D.N.Y. 1975); and Tramble v. Converters Ink Co., [4 EPD ¶7873 ] 343 F.Supp. 1350 (N.D.Ill. 1972).

For the above reasons, the Motion For Summary Judgment of Defendant WERD, Inc., is hereby granted, with costs assessed against the plaintiff.

Judgment

The court having granted the Motion For Summary Judgment of Defendant WERD, Inc., in the above-captioned action,

It is hereby Ordered that Judgment be and the same is hereby entered in favor of the Defendant WERD, Inc., with costs assessed against the plaintiff.