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EISENBERG v. ADVANCE RELOCATION AND STORAGE

February 16, 2000

JULIANNE EISENBERG, PLAINTIFF,
V.
ADVANCE RELOCATION AND STORAGE, INC., ADVANCE RELOCATION AND STORAGE OF CONNECTICUT, INC., B. NILSSON MOVING AND STORAGE, INC. AND MOLLOY BROS. MOVING AND STORAGE, INC., DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

OPINION AND ORDER

Plaintiff, Julianne Eisenberg, brings this action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2, et seq., and the New York State Human Rights Law, New York Executive Law §§ 290, et seq., in which she alleges that she was subjected to a hostile work environment, discriminated against and terminated by defendants on the basis of her sex, and terminated in retaliation for her complaints of sexual harassment. Defendants are Advance Relocation and Storage, Inc., its subsidiary, Advance Relocation and Storage of Connecticut, Inc. ("Advance"), and related companies B. Nilsson Moving and Storage, Inc. and Molloy Bros. Moving and Storage Company. Defendants now move for summary judgment and dismissal of the entire Amended Complaint ("Complaint") on the basis that plaintiff is not entitled to the protections of Title VII or the New York State Human Rights Law ("NYSHRL") because she was not defendants' employee, but was an independent contractor. Further, defendants move for summary judgment on plaintiff's retaliation claims, on the basis that there is no evidence that plaintiff was terminated for discriminatory reasons. For the reasons stated below, defendants' motion for summary judgment is granted.

BACKGROUND

At that lunch, plaintiff discussed the nature of the position with White. Plaintiff was informed that there was a forty-hour work week, with a typical workday beginning at eight o'clock in the morning and ending at five o'clock in the evening. (Id. at 64.) Plaintiff expressed her desire for a permanent position, but not any concern as to whether any benefits, such as medical coverage or vacation time were provided. (Id. at 62-64.) White told plaintiff to go down to Advance's warehouse and fill out an application. Plaintiff did so that same day and was hired. (Id. at 59.)

Plaintiff was paid only for the hours she worked, at a rate of ten dollars per hour. (Def. Rule 56.1 Stmt. ¶ 8.) Advance tracked the number of hours plaintiff worked through the use of a time card. Plaintiff was paid only after she submitted a time card. (Id. at ¶¶ 10-11.) Plaintiff's time cards indicate that she worked less than forty hours each week. (Schneider Aff., Ex. E.) Plaintiff never complained or raised any objections about being given less than forty hours of work per week. (Eisenberg Dep. at 133.)

Plaintiff was not paid for any personal days, sick time, or vacation time.*fn1 (Def. Rule 56.1 Stmt. ¶ 15.) Plaintiff was also not provided with health insurance or any other benefits. (Eisenberg Dep. at 83-84.) Plaintiff received no training for her work at Advance. (Def. Rule 56.1 Stmt. ¶ 16.)

Plaintiff was required to pay her own taxes for her wages. No taxes were ever taken out of a paycheck she received from Advance, and she received an IRS form 1099 from Advance for 1998. Plaintiff completed an IRS W-9 form on the first day she provided services for Advance. (Id. at ¶ 18.)

At Advance, there was a distinction between "casual labor" and permanent employees. According to Joan Isaacson, the officer manager of Advance's warehouse in Connecticut, only permanent employees received the company manual and casual labor is "someone who gets hired by the day as needed and is . . . just paid for the hours that they work without taxes being deducted." (Isaacson Dep. at 43.) Isaacson understood plaintiff to be a casual laborer. (Id. at 43-44.) Plaintiff testified that she and other employees that worked on the truck and in the warehouse were permanent. (Eisenberg Dep. at 94-95.) However, plaintiff also testified that the issue of her working for others while she worked for Advance was never discussed. (Id. at 85.)

Peter White was plaintiff's supervisor at Advance. White told plaintiff where to report to work and plaintiff "pretty much did whatever Pete White told [her] to do." (Id. at 71.)

Plaintiff alleges that during her work at Advance she was "subject to severe sexual harassment in the form of abusive and derogatory remarks and physical touching by the male employees." (Complt. ¶ 16.) Plaintiff also alleges that she regularly complained about the harassment to Peter White. (Eisenberg Aff. ¶ 15.)

After plaintiff complained to Isaacson, Isaacson spoke to Pete White and called Daniel McLoughlin, Advance's Director of Operations. (Isaacson Dep. at 52.) Both McLoughlin and Isaacson testified that when Isaacson called McLoughlin on the evening of September 16, 1998, they only discussed the use of drugs in the warehouse, and did not mention Eisenberg's complaints of sexual harassment. (Def. Rule 56.1 Stmt. ¶ 26.)

On September 17, 1998 at approximately seven o'clock in the morning, McLoughlin telephoned Isaacson at her home to inform her he was on his way to close Advance's warehouse and offices in Connecticut. (Id. at ¶ 27.) The decision to close the facility was made by McLoughlin and Jim Molloy, the owner of Advance of Connecticut. (Id. at ¶ 28.) McLoughlin testified that the sole basis for their decision to close the facility was their knowledge of drug use in the warehouse. (Id.) According to McLoughlin, he did not learn of plaintiff's complaints of sexual harassment until he was in the process of closing the warehouse on September 17, 1998. Every person who worked at the Connecticut warehouse and offices, excluding Isaacson, was terminated and was not reassigned to work for Advance at another location. (Id. at ¶ 31.) Plaintiff does not dispute McLoughlin's testimony that he did not learn of plaintiff's complaints until after the decision was made to close the warehouse and offices. In fact, plaintiff testified that ". . . the overall reason that the branch was being shut down wasn't because of the way that people were being treated but was because of the drug use by Pete. I mean, overall, it didn't seem like anything else other than that mattered." (Eisenberg Dep. at 368.)

Instead of arguing that McLoughlin knew of plaintiff's complaints of sexual harassment when he decided to terminate her and all of the other Advance employees at the Connecticut location, plaintiff argues that Isaacson promised her future work with Advance. Although not mentioned in plaintiff's Amended Complaint,*fn2 plaintiff states in her affidavit that on September 17, 1998, Isaacson told her that the closure of the Connecticut facility would be temporary. (Eisenberg Aff. ¶ 17.) Plaintiff also states that Isaacson told her that she was a valuable asset and that she should not take any other position because Isaacson wanted her to return to work at Advance when the Connecticut facility reopened. (Id. at ¶ 18.) Isaacson also allegedly asked whether plaintiff would be willing to relocate, to which plaintiff responded that she would relocate if she did not have to work with the same men. (Id. at 19-20.)

Plaintiff also states that during their discussion plaintiff told Isaacson that she was thinking of seeking legal counsel because of the sexual harassment which she suffered at Advance. (Id. at ¶ 21.) Plaintiff alleges that Isaacson said that she would not be able to secure another position for plaintiff with Advance if plaintiff filed a complaint or sought legal counsel. (Id. at ¶ 22.) Isaacson then gave her a business card and wrote her home telephone number on it, indicating that plaintiff should stay in touch. (Id. at ¶ 24; Schneider Aff., Ex. 4 (copy of Isaacson's business card with home telephone number written on it).) Plaintiff was never contacted by anyone at Advance to return 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.)

DISCUSSION

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.).

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