United States District Court, Southern District of New York
October 9, 1990
POGUE SIMONE REAL ESTATE CO., RAY SIMONE & PETER K. BROWNE.
The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.
Plaintiff, Vera Krijn brings this action against defendants
Pogue Simone Real Estate Co., Ray Simone and Peter K. Browne
("Pogue Simone") claiming that she was terminated from her
position as a real estate
agent because of her sex and national origin in violation of
Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e
et seq. (1982). Pogue Simone moved to dismiss the
action against each defendant under Fed.R.Civ.P. 12(c) for lack
of subject matter jurisdiction and for failure to sufficiently
state a claim. By Memorandum and Order dated August 4, 1989, I
sua sponte treated Pogue Simone's motion to dismiss as one
for summary judgment. I found that Krijn failed to sufficiently
state or support a claim of discrimination on the grounds of
either sexual harassment or national origin. On February 16,
1990, the Second Circuit reversed, 896 F.2d 687, stating that
by converting the motion to dismiss to one for summary
judgment, without notice to Krijn, was unduly prejudicial
because it precluded her from adequately defending her position
in opposition to summary judgment. The case was remanded so
that the parties may move and/or prepare for summary judgment.
On April 6, 1990, during a status conference on this matter, I
denied any further discovery pending Pogue Simone's motion for
summary judgment. Pogue Simone moved for summary judgment on
April 13, 1990. On May 1, 1990, Krijn moved for my recusal
which I denied on September 26, 1990. No stay of proceedings
was entered; Krijn submitted an additional affidavit in further
opposition to Pogue Simone's motion for summary judgment.
Pogue Simone is a real estate company licensed to do business
in New York State. It maintains several offices in New York.
Complaint ¶ 3. Krijn, a woman of Dutch nationality, became an
associate of Pogue Simone as a licensed real estate salesperson
on or about April 24, 1986. Defendant's Memorandum in Support
of Summary Judgment ("Defendant's Memo."), at 4. Compensation
was set solely on commission, Krijn received no specific
salary, and Pogue Simone made no contributions toward social
security or unemployment benefits. Pogue Simone neither
provided fringe benefits to its salespeople or brokers, nor did
it withhold taxes from its salespersons' paychecks. Defendant's
3(g) Statement ("3(g)") ¶¶ 3, 4. Krijn had no scheduled office
hours. 3(g) ¶ 4. Weekly sales meetings were conducted where
attendance was obligatory, and apparently daily sign-in sheets
were kept to record attendance in Pogue Simone's offices.
Plaintiff's Affirmation in Reply to Defendant's Motion for
Summary Judgment ("Plaintiff's Reply"), at 2. There is no
indication from the record that these signin sheets were used
as a bellwether for productivity.
Browne was, at all relevant times, manager of Pogue Simone's
Manhattan South Office and Krijn's immediate supervisor.
Complaint ¶ 3.*fn1 Browne dismissed Krijn from Pogue Simone
in 1988 because "she was not a satisfactory sales person."
Browne Affid. ¶ 9. Krijn, on the other hand, claims that she
was discriminated against when, after she repeatedly declined
Browne's sexual advances, she was dismissed from her job as a
Pogue Simone salesperson. Specifically, Krijn claims that
"Browne made suggestive remarks and insinuations which
plaintiff brushed aside. Plaintiff demonstrated disinterest in
a personal relationship with Browne who appeared to desire the
same . . . [and that] one reason Browne terminated plaintiff
was because of her unwillingness to become engaged in a
personal relationship." Complaint ¶ 12. Additionally, Krijn
alleges that "Browne made comments indicating that he had
negative, stereotypic associations regarding Dutch women."
Complaint ¶ 10.
Under Title VII "[i]t shall be an unlawful employment practice
for an employer to . . . discharge any individual, or
to discriminate against any individual . . . ." 42 U.S.C. § 2000e-2
(1982) (emphasis supplied). Subcontractors are not
considered employees under common law and have traditionally
been precluded from claiming Title VII relief. In re Wilson
Sullivan Co., 289 N.Y. 110, 44 N.E.2d 387 (1942). To
distinguish employees from independent contractors:
The test entails consideration of numerous circumstances
relating to the work relationship, with the most important
factor being the extent of the employer's right to the work
relationship, with the most important factor being the extent
of the employer's right to control the means and manner of the
employee's performance. A "hybrid" economic realities/right to
control standard has been introduced to determine whether one
claiming the benefits of the ADEA*fn2 is an employee or
Hyland v. New Haven Radiology Associates, P.C., 794 F.2d 793
(2d Cir. 1986) (citing Spirides v. Reinhardt, 613 F.2d 826,
839 (D.C.Cir. 1979)): see also, E.E.O.C. v. Zippo
Manufacturing Co., 713 F.2d 32, 38 (3d Cir. 1983); Hickey v.
Arkla Industries, Inc., 699 F.2d 748, 752 (5th Cir. 1983).
Pogue Simone contends that because it retains minimal control
over its salespeople, including Krijn, they are subcontractors
under common law and as such are not entitled to Title VII
relief. I agree. Indeed, Pogue Simone neither withholds taxes
from nor pays benefits to its salespeople. Salespeople are not
expected to keep regular office hours. Even if weekly meetings
call for mandatory attendance, as Krijn avers, this assertion
is not enough to withstand dismissal, considering the remainder
of the record which shows that Pogue Simone maintains little
other control over its sales force.
Admittedly, salespeople associated with Pogue Simone are
benefited by its real estate resources, guides, listings, and
office space in which to conduct independent sales. In return,
commissions from sales are paid Pogue Simone. Pogue Simone also
expects periodic attendance by its salespeople in its offices.
However, these practices do not constitute sufficient control
over the "details" and "means" by which the work is to be
performed as to equal the control that an employer asserts over
its employees. See In re Wilson Sullivan Co., 289 N.Y. 110,
44 N.E.2d 387 (1942) (licensed real estate salesperson is an
independent contractor and not an employee under New York law.)
Krijn was paid solely on a commission basis, her time was
totally unstructured, and Browne was not shown to exercise any
meaningful control over Krijn's hours or over the day-to-day
details of her work. Pogue Simone's and Browne's interests lie
only in the end product, namely, sales. Nowhere in the record
is it shown that Pogue Simone exhibited such control over Krijn
as to be deemed her "employer" sufficient to defeat the
presumption that Krijn was no more than an independent
contractor.*fn3 Finally, that Krijn claims to have been
Pogue Simone's control because it retained Krijn's license to
sell during her tenure with Pogue Simone is of no moment. Krijn
was already licensed by the time she sought to be a sales
person associated with Pogue Simone; she was responsible for
the costs of obtaining and maintaining her license to sell real
estate. As such, Krijn is procedurally barred from asserting
claims as arising under Title VII.*fn4
As a final note, the complaint alleges no wrongdoing on the
part of Ray Simone and as such the complaint is dismissed as
against him. Moreover, Browne was not named in the Equal
Employment Opportunity Commission charge of discrimination.
See Maher v. United States Postal Service Agency, No.
86-1593, 1987 WL 26805 (S.D.N.Y. Nov. 25, 1987) (LEXIS, Genfed
library, Dist. file) (failure to name defendant in Equal
Employment Opportunity Commission charge of discrimination
warrants dismissal in the district court for lack of subject
For the foregoing reasons, Pogue Simone's motion for summary
judgment is granted and Krijn's complaint is dismissed in its