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