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United States District Court, S.D. New York

December 13, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Plaintiff Anthony Nelson ("Nelson") drove trucks for DMP Contracting ("DMP"), a subcontractor for defendant Beechwood Organization ("Beechwood"). For two-and-a-half to three years, Nelson worked on DMP's projects for Beechwood. (Compl. at 10 (Letter from plaintiff to Les Lerner dated July 18, 2002 ("Lerner Letter"), 1).) After losing his job and allegedly suffering discrimination by Beechwood, Nelson filed a charge with the Equal Employment Opportunity Commission ("EEOC") on August 30, 2002 (Am. Compl. ¶ 10), and the EEOC issued Nelson a right to sue letter on September 24, 2002.*fn1 (Id. at 6.) Subsequently,*fn2 Nelson brought this employment discrimination action against Beechwood pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging racial discrimination, wrongful termination of employment, and unequal terms and conditions of employment.*fn3 (Am. Compl. ¶¶ 4, 7.) Now, pursuant to Rule 12(c), Beechwood moves for judgment on the pleadings, arguing that Title VII offers Nelson no relief as (1) Beechwood was never Nelson's employer; and (2) Nelson has not properly alleged racial discrimination. For the reasons that follow, the motion will be denied.


  The facts set forth below, drawn from Nelson's complaints, and the various documents attached to them, must be taken as true for Beechwood's motion for judgment on the pleadings, and all reasonable inferences must be drawn in Nelson's favor. Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003).*fn4 Nelson is an African-American man. (Am. Compl. at 5 (Letter from plaintiff to Chief Judge Mukasey, dated August 1, 2003 ("Mukasey Letter"), 1).) For twenty-three years, Nelson has been licensed to operate trucks. (Proposed Second Am. Compl. at 1.) During his over-three-year tenure at DMP, he performed substantial work for Beechwood: he "hir[ed] and dispatch[ed] all [truck] drivers" for DMP, and with those under his supervision, "removed thousands of yards of materials" for Beechwood. (Lerner Letter 1.) The precise nature of Beechwood and DMP's relationship is unclear (and at issue in this litigation), although Nelson states that DMP was Beechwood's "sub-contractor" (Lerner Letter 1); and that Beechwood "supervise[d], and coordinated all functions and all duties performed by DMP drivers and operating engineers." (P. Mem. 22.) According to Nelson, DMP "operators and drivers report[ed] and answer[ed] to Beechwood supers everyday . . . [and] [t]he supers, at the beginning of each day, t[old] the operators what dirt or rock they wanted removed, how deep, what grade to dig at . . . and where you dump[ed] your loads for the day." (Id.) DMP receives at least 90% of its work from Beechwood.*fn5 (Lerner Letter 2-3.)

  The incident that precipitated this action occurred on June 21, 2002, while Nelson was working on a dirt-hauling dump truck at one of Beechwood's Bronx sites. (Compl. ¶ 8.) On June 21, 2002, "Dean," an assistant supervisor for Beechwood, asked Nelson to remove scrap metal along with one of Beechwood's employees. (Lerner Letter 1.) Pressured to take the job or else lose work, Nelson accepted the assignment despite his reservations about the legality and safety of the work. (Proposed Second Am. Compl. at 1-2.) On the job, while waiting for another truck to be loaded, Nelson allowed a curious coworker to examine the inside of his truck's cab. (Lerner Letter 1.) When Nelson later noticed his cell phone missing, he suspected the phone was stolen. (Id.)

  Nelson reported the apparent theft to Dean, who responded with disbelief. (Id.) Nelson spoke to Dean for a second time on June 24, 2002, at which point Dean told Nelson that the same man had "walked off the site with the plumber's phone and hadn't been seen since — not even to get his paycheck." (Id. 1-2.) In accord with Dean's advice, on June 26, 2002, Nelson took his complaint to Jack Kennedy, the head supervisor. (Id.) Kennedy responded by being "rude, curt, short-tempered and curs[ed] [Nelson] about both laborers being in the truck." Kennedy ended the exchange by "wav[ing] [Nelson] away with his hand, dismissively, not interested in hearing that one of his workers stole [Nelson's] property." (Id. 2.) As he walked away, Nelson overheard Kennedy talking to Dean about Nelson, and Kennedy glared at Nelson. (Id.) Later, on his second attempt to talk to Kennedy, Kennedy was again rude. Consequently, Nelson told Kennedy that Beechwood employees could no longer ride or look in his truck. In addition, as he walked away from Kennedy, Nelson threw his coffee cup to the ground. In turn Kennedy yelled to Nelson "`don't come back to my motherf * * * king [sic] job no more!'" (Id.)

  Nelson reported the incident to Danny Peraglia, DMP's owner. When Peraglia spoke to Kennedy, Kennedy accused Nelson of smoking pot in his truck with the alleged thief. (Proposed Second Am. Compl. at 2-3.) Nelson wrote to Les Lerner, Beechwood's owner, and Reverend Floyd Flake, Lerner's associate, reporting the incident and requesting an investigation, but received no response. (Id. at 2-3; Compl. ¶ 8.) As a consequence of this episode, Nelson lost his job with DMP. Nelson's various submissions are somewhat ambiguous about whether DMP fired Nelson because DMP understood that Beechwood no longer wanted Nelson working at its sites (Lerner Letter 2-3), or due to Kennedy's allegations that Nelson smoked pot (Proposed Second Am. Compl. at 2-3), and about whether the firing was DMP's own decision or was directed by Beechwood.

  In addition to this central incident at the Bronx site, Nelson notes other factors contributing to a "negative work environment" at Beechwood's job sites, including "racial slurs being made about my Hispanic workers" (Lerner Letter 2); a refusal to translate instructions for Spanish-speaking drivers (Compl. at 8); comments that "emasculat[ed]" Nelson publicly (id.); "derogatory remarks and racial slurs," (Mukasey Letter 1); "[d]eflecting guilt on a Black man" (P. Mem. 24); and "unjust and intolerable harassment on a recurring basis" (Affidavit of Anthony B. Nelson, dated June 24, 2004 ("Nelson Aff."), ¶ 2.). Finally, Nelson suggests Beechwood disparately treated the same quality work by white, as opposed to, black or Hispanic, workers — that Beechwood "show[ed] an automatic preference for his own over us regardless of our superior work records and [our] squeaky clean backgrounds." (Id.)


  I. Standard on a Motion for Judgment on the Pleadings

  On a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), the Court must "accept? the allegations in the . . . complaint as true and draw? all reasonable inferences in favor of" the plaintiff, and may only dismiss the complaint if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Deravin, 335 F.3d at 200 (internal quotation marks and citations omitted). This standard deserves particular solicitude where, as here, a pro se litigant alleges a civil rights violation. Id.; see Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). The Second Circuit has stated that "the pleading requirements in discrimination cases are very lenient, even de minimis." Deravin, 335 F.3d at 200 (internal quotation marks and citations omitted).

  II. The Employee-Employer Relationship Under Title VII

  Title VII protects employees from employers who "fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a). Beechwood argues that Nelson was never its "employee" as defined by Title VII, invoking a line of cases that attempt to distinguish employees from volunteers or independent contractors. (D. Mem. 3-5; D. Reply Mem. 1-4.) In contrast, Nelson suggests that Beechwood and DMP constituted joint employers for purposes of Title VII liability. (P. Mem. 21-22.)

  A. "Employee"

  Title VII defines "employee" as "an individual employed by an employer." 42 U.S.C. § 2000e(f). To clarify Title VII's circular definition of "employee," the Second Circuit has established a two-part test to determine whether an individual is an "employee" as defined by Title VII. First, as a threshold matter, the plaintiff must demonstrate he was hired by the putative employer by establishing he received some form of direct or indirect remuneration from the putative employer. U.S. v. City of New York, 359 F.3d 83, 91-92 (2d Cir. 2004); York v. Assoc'n of the Bar, 286 F.3d 122, 125-26 (2d Cir. 2002). Although the remuneration need not take the form of a formal salary, it "must consist of `substantial benefits not merely incidental to the activity performed.'" City of New York, 359 F.3d at 91-92 (internal citation omitted). Second, the Court must look to the thirteen factors the Supreme Court derived from the federal common law of agency, and articulated in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), to determine whether an employment relationship exists.*fn6

  Stated another way, under Title VII, an employer compensates and controls an employee's work. Wadler v. E. Coll. Athletic Conference, No. 00 Civ. 5671, 2003 WL 21961119, at *3 (S.D.N.Y. Aug. 14, 2003). Although Nelson has alleged facts that suggest the Reid factors weigh in favor of finding an employment relationship — e.g., that Beechwood determined the work sites, assigned projects to Nelson, controlled construction sites and managed the work, and regularly used truck drivers to accomplish its work; and that Nelson worked with Beechwood regularly for two-and-a-half or three years — he has not alleged that Beechwood remunerated his work. Thus, this Court need not consider the thirteen Reid factors. "Where no financial benefit is obtained by the purported employee from the employer, no `plausible' employment relationship of any sort can be said to exist because . . . compensation by the putative employer to the putative employee in exchange for his services is . . . an essential condition to the existence of an employer-employee relationship." York, 286 F.3d at 126 (internal quotation marks omitted, ellipses in original); Wadler, 2003 WL 21961119, at *2-*3.*fn7

  Beechwood is therefore correct that Nelson has failed to establish a direct employment relationship with Beechwood. But this analysis fails to engage with Nelson's actual argument. The issue here is not whether Nelson was a volunteer or a paid employee. It appears undisputed that DMP employed and paid Nelson. (P. Mem. 22-23; D. Mem. 5.) The question is whether he can be considered an employee of Beechwood as well as of DMP.

  B. Joint Employers

  Nelson in effect urges the Court to recognize Beechwood as a joint employer of DMP. (P. Mem. 21-22.) Title VII defines "employer" as "a person engaged in an industry affecting commerce . . . and any agent of such a person." 42 U.S.C. § 2000e(b). Although it seems clear that Beechwood was not Nelson's direct employer, "[t]he term `employer' has been construed liberally under Title VII, and does not require a direct employer/employee relationship." Laurin v. Pokoik, No. 02 Civ. 1938, 2004 WL 513999, at *4 (S.D.N.Y. Mar. 15, 2004). But see Scaglione v. Chappaqua Cent. Sch. Dist., 209 F. Supp. 2d 311, 314-15 (S.D.N.Y. 2002). In light of the remedial principles underlying Title VII, the federal courts have adopted a relatively expansive approach to liability in the context of employment relations and civil rights, which allows courts to determine whether two employers can be considered "joint employers" for purposes of Title VII liability. See Laurin, 2004 WL 513999, at *4-*9.*fn8

  The "joint employer" doctrine assumes the two employers are in fact separate legal entities, but inquires whether they have "chosen to handle certain aspects of their employer-employee relationships jointly." Clinton's Ditch Cooperative Co. v. NLRB, 778 F.2d 132, 137 (2d Cir. 1985). "[T]he analysis is used to construe the term `employer' functionally, to encompass persons who are not employers in conventional terms, but who nevertheless control some aspect of an employee's compensation or terms, conditions, or privileges of employment." Laurin, 2004 WL 513999, at *8. Specifically, joint employer analysis looks at "commonality of hiring, firing, discipline, pay, insurance records, and supervision." Arculeo v. On-Site Sales & Marketing, LLC, 321 F. Supp.2d 604, 608 (S.D.N.Y. 2004); Clinton's Ditch, 778 F.2d at 137-39.

  Particularly in a civil rights case, this Court "read[s] the pleadings of a pro se plaintiff liberally and interpret[s] them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation omitted); see Irish Lesbian & Gay Org, 143 F.3d at 644. Accordingly, when the facts are viewed in the light most favorable to Nelson, Nelson has alleged sufficient facts to bar this Court from concluding as a matter of law that Beechwood and DMP are not joint employers.

  It is not clear in what detail the notice pleading adopted by the Federal Rules requires a plaintiff to specify the nature of the relationship between two putatively separate employers. On his brief on this motion, Nelson has raised the joint employer theory, pointing to various ways in which Beechwood exercised dominion over DMP's employees. (P. Mem. 21-22.) Specifically, Nelson has alleged that Beechwood "supervise[d], and coordinated all functions and all duties performed by DMP drivers and operating engineers"; and that DMP "operators and drivers report[ed] and answer[ed] to Beechwood supers everyday . . . [and] [t]he supers, at the beginning of each day, t[old] the operators what dirt or rock they wanted removed, how deep, what grade to dig at . . . and where you dump[ed] your loads for the day." (P. Mem. 22.) Nelson has also alleged that Beechwood determined the work sites, assigned projects to Nelson, controlled construction sites and managed the work, and regularly used truck drivers to accomplish its work. In addition, although the record is not entirely clear, it seems that DMP works either exclusively or almost exclusively for Beechwood, see above note 5 and accompanying text, raising the possibility that the two employers work together. (Lerner Letter 3.)

  Admittedly, the allegations regarding Beechwood's and DMP's status as joint employers pertain almost exclusively to joint supervision. However, this Court is not required to accept as true Beechwood's assertions that it had no involvement in Nelson's hiring, firing, or compensation. (D. Mem. 5.) There are substantial ambiguities in the record regarding the relationship between DMP and Beechwood, and Beechwood and Nelson, including as to how and by whom exactly the decision to fire Nelson was made. (Compare Lerner Letter 2-3 with Mukasey Letter 1.)

  The relationship between DMP and Beechwood may simply reflect a traditional contractor-subcontractor relationship where the contractor does not control the subcontractor's compensation, hiring, or firing of its employees, or its daily functioning. Indeed, some passages in Nelson's voluminous pleadings suggest that DMP and Beechwood operated independently of each other. Other portions, however, raise the possibility that DMP and Beechwood may exercise joint control over their employees, including Nelson. Thus, when the record is properly viewed in the light most favorable to Nelson, this Court is unable to determine as a matter of law that Beechwood and DMP did not function as joint employers as to Nelson. Whether sufficient evidence exists to permit a reasonable jury to find a joint employer relationship between Beechwood and DMP can be tested, after discovery, by a motion for summary judgment.

  III. Racial Discrimination

  Beechwood argues in the alternative that Nelson has failed to allege a cause of action for racial discrimination under Title VII because his complaint includes "only naked assertions of prohibited conduct." (D. Mem. 5.) The threshold question is whether Nelson has established the minimal prima facie case defined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the Second Circuit's application of this framework, a plaintiff has the initial burden of showing (1) that he belonged to a protected class; (2) that he was qualified for the position; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003); Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).

  Under the circumstances, Nelson has properly alleged a prima facie employment discrimination case. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002) ("[T]he precise requirements of a prima facie case can vary depending on the context.") First, Nelson is an African-American man, and therefore a member of a protected class. Second, he was a qualified and certified truck driver. Third, Nelson was fired. Fourth, Nelson has alleged "derogatory remarks and racial slurs," race-based "scapegoat[ing]" (Mukasey Letter 1) and "[d]eflecting guilt on a Black man" (P. Mem. 24), comments that "emasculat[ed]" him publicly (Compl. at 8), "unjust and intolerable harassment on a recurring basis," and an "automatic preference" for the work of white workers (Nelson Aff. ¶ 2), raising an inference of discriminatory intent behind Nelson's firing. Under the liberal notice-pleading standards of Rule 8, and in view of the Supreme Court's admonition to heed this standard in employment discrimination cases, see Swierkiewicz, 534 U.S. at 510-14, and this Circuit's deference to pro se plaintiffs alleging civil rights violations, Deravin, 335 F.3d at 200, Nelson has adequately pled a racial discrimination claim for purposes of this motion.


  Accordingly, defendant's motion for judgment on the pleadings is denied. SO ORDERED.

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