to work. Isaacson stated in her affirmation that on September 17,
1998, she gave her business card and home number to many
employees at Advance, including plaintiff, so that these people
could provide her name and number as a reference for their future
employers. (Isaacson Aff. at ¶ 2.)
I. Summary Judgment Standard
Summary judgment is appropriate if "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." Fed.R.Civ.P. 56(d). A genuine issue
for trial exists if, based on the record as a whole, a reasonable
jury could find in favor of the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). On a motion for summary judgment, all
evidence must be viewed and all inferences must be drawn in the
light most favorable to the non-moving party. City of Yonkers v.
Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).
The party seeking summary judgment bears the initial burden of
"informing the district court of the basis for its motion" and
identifying the matter "it believes demonstrates the absence of a
genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Upon the
movant's satisfying that burden, the onus then shifts to the
non-moving party to "set forth specific facts showing that there
is a genuine issue for trial." Anderson, 477 U.S. at 250, 106
S.Ct. 2505. At this stage, the non-moving party "must do more
than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Bald assertions or conjecture unsupported by evidence are
insufficient to overcome a motion for summary judgment. Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
II. Title VII and Employment Status
Title VII provides that it shall be unlawful for an employer to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment on
the basis of, inter alia, the individual's gender.
42 U.S.C. § 2000(e)-2(1). Title VII protects only "employees"; independent
contractors may not obtain relief under the statute. Stetka v.
Hunt Real Estate Corp., 859 F. Supp. 661, 665 (W.D.N.Y. 1994);
Krijn v. Pogue Simone Real Estate Co., 752 F. Supp. 102, 104
(S.D.N.Y. 1990), aff'd mem., 930 F.2d 910 (1991).
The United States Supreme Court has held that "where a statute
containing the term `employee' does not helpfully define it, the
common law agency test should be applied." Nationwide Mut. Ins.
Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d
581 (1992); see also O'Connor v. Davis, 126 F.3d 112, 115 (2d
Cir. 1997). Because Title VII contains only a circular definition
of "employee," see O'Connor, 126 F.3d at 115, we look to common
law agency principles to determine whether plaintiff was an
employee or an independent contractor. See Tagare v. Nynex
Network Systems Co., 994 F. Supp. 149, 154 (S.D.N.Y. 1997)
(Conner, Senior J.).
In Community for Creative Non-Violence v. Reid, the Supreme
Court set out the following factors relevant to this inquiry:
1. the tax treatment of the hired party;
2. the skill required;
3. the provision of employee benefits;
4. the hiring party's right to control the manner and
means by which the product is accomplished;
5. whether the hiring party has the right to assign
additional projects to the hired party;
6. the source of the instrumentalities and tools;