Opinion
Civil Action 2:19-cv-3002-BHH-TER
01-05-2022
EXZAVIEN BLIGEN, Plaintiff, v. CARL AMBER BRIAN ISAIAH AND ASSOCIATES d/b/a CBAIA LOGISTICS SERVICES, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
Plaintiff asserts causes of action for race discrimination, retaliation, and hostile work environment pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq. Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 35). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
In January of 2017 Plaintiff was hired as a driver/mechanic by DAV-Force. Pl. Dep. 10-11 (ECF No. 35-4); Pl. Answers to Int. p. 8 (ECF No. 35-2). In February of 2018, Plaintiff was transferred by DAV-Force to work at a Navy base located at 1050 Remount Road, North Charleston, South Carolina (the Navy Base). Pl. Answers to Int. p. 9. Upon arriving at the Navy base, Plaintiff met with by Cheyanne Strachota (Mr. Strachota). Pl. Dep. 17 (ECF No. 35-4). Mr. Strachota is a DAV-Force employee supervising the work performed by DAV-Force employees at the Navy Base. Pl. Dep. 17-19 (ECF No. 35-4). Mr. Strachota introduced Plaintiff to two employees of Defendant CBAIA. Pl. Dep. 18 (ECF No. 35-4). Mr. Strachota told Plaintiff to learn from Justin Hicks (Mr. Hicks), a CBAIA supervisor. Pl. Dep. 18 (ECF No. 35-4). Mr. Strachota explained that if Mr. Hicks wanted Plaintiff to “help” CBAIA, Mr. Hicks was to contact Mr. Strachota. Pl. Dep. 18 (ECF No. 35-4). Plaintiff worked with another DAV-Force employee, Charles Gordon (“Mr. Gordon”), at the Navy Base performing the same tasks for DAV-Force. Gordon Answers to Int. (ECF No. 35-3); Gordon Dep. 11-12 (ECF No. 35-5). Plaintiff and Mr. Gordon would unload vehicles delivered to the Navy Base and then conduct routine mechanical work. Gordon Dep. 13-14 (ECF No. 35-5). They would at times be joined by Laphonzo White (Mr. White), an employee of CBAIA, when completing their tasks. Gordon Dep. 14 (ECF No. 35-5); Pl. Dep. 28 (ECF No. 35-4).
At some point while working at the Navy Base, Plaintiff was shown a video by Mr. Hicks. The video was a racially motivated comedy skit, that used an insulting racial slur. Pl. Dep. 22 (ECF No. 40-1). Plaintiff took Mr. Hicks aside and told him that he was not comfortable with Mr. Hicks using that word at work. Pl. Dep. 22 (ECF No. 40-1). Mr. Hicks stated to Plaintiff that he would stop calling Plaintiff the insulting racial slur and would instead call him by his regular name. Pl. Dep. 25 (ECF No. 40-1).
Sometime around March or April of 2018, Plaintiff and Mr. Gordon complained to their supervisor, Mr. Strachota, about Mr. Hicks' use of the insulting racial slur and that the CBAIA employees were working inside while they were working outside with only the help of Mr. White. Pl. Dep. 28 (ECF No. 35-4). Plaintiff brought his complaint to Mr. Strachota because “He's the guy that we reported to, so he needed to know that information that was going on between the two companies.” Pl. Dep. 28 (ECF No. 35-4). Neither Plaintiff nor Mr. Gordon made any complaints to anyone with CBAIA. Pl. Dep. 33 (ECF No. 35-4); Gordon Dep. 30 (ECF No. 35-5).
Following these complaints, Plaintiff and Mr. Gordon were instructed to report directly to Mr. Strachota's location until he instructed them to work with the CBAIA employees again. Pl. Dep. 31-32 (ECF No. 35-4). Gordon Dep. 23 (ECF No. 35-5). Also following this complaint to Mr. Strachota, CBAIA's Mr. Hicks told Mr. White to refrain from doing any work with the DAV-Force employees because, “Well, you work for me. You don't work for them. And if we need their help, you know, they have to contact [Mr. Strachota] so that they can come over here and help us - assist us with anything we need assistance with.” White Dep. 26 (ECF No. 35-7). Following this conversation, Mr. White complained to his CBAIA supervisor, Mr. Hicks, that “[White] was left alone… spaying down vehicles, like inserting what they called a gunner's hatch on the vehicles.” White Dep. 36 (ECF No. 35-7). White stated this was separate work that the DAV-Force employees were not permitted to help with, to his frustration. White Dep. 35-36 (ECF No. 35-7).
In September of 2018 the DAV-Force contract under which Plaintiff was working ended. Pl. Dep. 34 (ECF No. 35-4). Plaintiff does not believe he was terminated but simply let go because the contract was over. Pl. Dep. 34 (ECF No. 35-4).
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff brings this action pursuant to Title VII. Title VII makes it “an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....” 42 U.S.C. § 2000e-2(a)(1). Title VII also makes it an “unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
“As the text makes clear, the protections of Title VII's anti-discrimination and anti-retaliation provisions extend only to employees.” Lemon v. Myers Bigel, P.A., 985 F.3d 392, 396 (4th Cir. 2021). “An entity can be held liable in a Title VII action only if it is an ‘employer' of the complainant.” Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 408 (4th Cir. 2015). Title VII defines “employee” as “an individual employed by an employer.” 42 U.S.C. § 2000(e)(f). It defines “employer” as “a person engaged in an industry affecting commerce . . . and any agent of such a person.” 42 U.S.C. § 2000(e)(b). As the Supreme Court has noted, definitions of “employer” and “employee” in federal law are often circular and “explain[ ] nothing.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). In Butler, the Fourth Circuit held that a plaintiff pursuing a claim under Title VII may be considered an employee of more than one employer under the joint employment doctrine. Butler, 793 F.3d at 408. To determine whether an entity is an employer under the joint employer doctrine, the Court must apply a fact-specific, multi-factor analysis. Id. The factors can be modified to the specific industry context. Id. at 414. Butler involved a factory worker contracted through a staffing agency to work at the putative employer's auto factory. Id. The factors utilized in Butler included
(1) authority to hire and fire the individual;
(2) day-to-day supervision of the individual, including employee discipline;
(3) whether the putative employer furnishes the equipment used and the place of work;
(4) possession of and responsibility over the individual's employment records, including payroll, insurance, and taxes;
(5) the length of time during which the individual has worked for the putative employer;
(6) whether the putative employer provides the individual with formal or informal training;
(7) whether the individual's duties are akin to a regular employee's duties;
(8) whether the individual is assigned solely to the putative employer; and
(9) whether the individual and putative employer intended to enter into an employment relationship.Id. at 414. The Butler court noted that “[t]hree factors are the most important”:
The first factor, which entity or entities have the power to hire and fire the putative employee, is important to determining ultimate control. The second factor, to what extent the employee is supervised, is useful for determining the day-to-day, practical control of the employee. The third factor, where and how the work takes place, is valuable for determining how similar the work functions are compared to those of an ordinary employee.Id. at 414-15. As is clear from the court's determination of what factors are most important, “the common-law element of control remains the ‘principal guidepost' in the analysis.” Id.
Even before addressing the Butler factors, the undersigned notes that the circumstances arising in the present case do not fall squarely within the types of cases contemplated by the Butler court. In Butler, the court noted “[t]he basis for the finding that two companies are joint employers is that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Id. at 408 (citing Torres-Negrón v. Merck & Co., 488 F.3d 34, 40 n. 6 (1st Cir.2007) (internal citations omitted). Specifically, the plaintiff in Butler was employed by a temporary staffing agency to work at the defendant's manufacturing plant. Id. at 406.
In the present case, there was no contractual or other type of relationship between DAV-Force and CBAIA. Obee Dep. 28-29 (ECF No. 35-6). As stated above, the plaintiff in Butler was employed by a temporary staffing agency to work at the defendant's manufacturing plant. Id. at 406. In the present case, there was no contractual or other type of relationship between DAV-Force and CBAIA. Obee Dep. 28-29 (ECF No. 35-6).
With regard to the first factor, Plaintiff testified that he applied to DAV-Force and was hired by DAV-Force. Pl. Dep. 8-11 (ECF No. 35-4). He began working for DAV-Force in January of 2017 under one government contract and was assigned to work at the Navy Weapons Station in Goose Creek, South Carolina. Pl. Dep. 11 (ECF No. 35-4). In February of 2018, he was assigned to a new government contract with DAV-Force and worked at the Navy Base on Remount Road, in North Charleston, South Carolina, where he first came in contact with CBAIA employees. Pl. Dep. 13-14 (ECF No. 35-4). His employment with DAV-Force ended when his contract ended. Pl. Dep.34 (ECF No. 35-4). There is no evidence in the record that CBAIA had any authority over Plaintiff to hire or fire him. This factor weighs in favor of finding that CBAIA was not a joint employer.
The second factor to consider is the day-to-day supervision of the employee, including employee discipline. While Plaintiff worked at the Navy Base, there was a DAV-Force supervisor, Cheyanne Strachota, on site every day. Pl. Dep. 17-19 (ECF No. 35-4). Mr. Strachota worked in a building adjacent to where the CBAIA supervisor and employees worked. Pl. Dep. 18-19 (ECF No. 35-4). Plaintiff testified that Mr. Strachota introduced him to Justin Hicks, the CBAIA supervisor on site, and a couple of other CBAIA employees as the people he would be “working alongside.” Pl. Dep. 18 (ECF No. 35-4). He testified that those employees would train him and that he was told during the introduction that “anytime I'm requested to work over there . . . Justin requested that from Cheyanne.” Pl. Dep. 18 (ECF No. 35-4). Plaintiff testified that after he complained to Mr. Strachota about the differing workload between the DAV-Force employees and CBAIA employees, DAV-Force employees, including Plaintiff, were instructed by Mr. Strachota to report to the DAV-Force building each day and would stay there until Mr. Hicks asked Mr. Strachota for their assistance and Mr. Strachota cleared it. Pl. Dep. 31-32 (ECF No. 35-4). That change occurred sometime in April. Pl. Dep. 32 (ECF No. 35-4). Plaintiff explained that Mr. Hicks would call Mr. Strachota and Mr. Strachota would come to him and tell him that Mr. Hicks requested that Plaintiff work with him that day. Pl. Dep. 32 (ECF No. 35-4). Plaintiff would then work with Mr. Hicks as instructed by Mr. Strachota. Pl. Dep. 32 (ECF No. 35-4).
In an affidavit dated June 21, 2021, and attached to Plaintiff's response, Plaintiff avers that he worked “with” CBAIA from his first day on the job in February of 2018, until his contract ended in September of 2018. Pl. Aff. ¶ 1 (ECF No. 40-3). He avers that he was supervised on a day-to-day basis by Mr. Hicks, who gave him all of his work assignments and instructed him on how to complete them. Pl. Aff. ¶ 3 (ECF No. 40-3). He also avers that Mr. Hicks disciplined him in the form of course correction measures just as he did with CBAIA employees. Pl. Aff. ¶ 5 (ECF No. 40-3). However, Plaintiff's reference to “course correction” goes to the manner in which he performed his tasks rather than discipline, though both fall under the supervision factor.
Based on the evidence in the record, though Plaintiff worked alongside CBAIA employees on a daily basis, the intent from the beginning of his work on the DAV-Force contract at the Navy Base was that he would report to Mr. Strachota who would direct him where to work. If that work was to be done with Mr. Hicks based upon Mr. Hicks' request, then Mr. Strachota would tell Plaintiff as much and Plaintiff would then get instructions from Mr. Hicks with respect to his tasks for the day. Though not entirely clear from the record presented, it appears that at some point Plaintiff began bypassing Mr. Strachota and reporting directly to Mr. Hicks. However, once he complained to Mr. Strachota in March or April of 2018 of the unfair workload between DAV-Force employees and CBAIA employees, Mr. Strachota told Plaintiff to be sure to report to him each day and get his work assignments from him. See, e.g., Carter v. Dominion Energy, Inc., 529 F.Supp.3d 525, 544 (W.D. Va. 2021) (applying Butler factors and finding insufficient allegations of day-today supervision where the plaintiffs would report to their contractual employer's onsite trailer each morning to get their work assignments rather than defendant's office). Further, it is not disputed that Plaintiff approached Mr. Strachota, his DAV-Force supervisor, with complaints and concerns rather than Mr. Hicks. Thus, there are competing facts with respect to the second factor.
The third factor is whether the putative employer furnishes the equipment used and the place of work. Here, the work was done on a government site, which appears to be a neutral factor not favoring either DAV-Force or CBAIA. However, Plaintiff avers in his affidavit that he used CBAIA's equipment and tools every day during the course of his employment and was authorized to drive CBAIA work trucks around the site to perform his job duties. Pl. Aff. ¶ 6 (ECF No. 40-3). Thus, the third factor weighs in favor of Plaintiff's argument that CBAIA was a joint employer.
The fourth factor to consider is who had possession of and responsibility over the individual's employment records, including payroll, insurance, and taxes. Lashree Obee, the Human Resources Manager for CBAIA during the time frame at issue here, testified that she had no knowledge of Plaintiff until he submitted his EEOC complaint in connection with this case. Obee Dep. 8-9, 18, 28-29 (ECF No. 35-6). Thus, the evidence shows that CBAIA did not maintain employment records for Plaintiff.
Fifth, courts consider the length of time the individual worked for the putative employer. As discussed above, Plaintiff began working at the Navy Base in February of 2018, and remained there until his contract with DAV-Force ended in September of 2018. Plaintiff avers that he worked with CBAIA during that entire time. Though it is not entirely clear from the record how things worked between February and March or April when Plaintiff complained to Mr. Strachota about the differing work responsibilities between DAV-Force and CBAIA employees, Plaintiff testified that after he made the complaint, he reported to Mr. Strachota each day, who would then tell him that Mr. Hicks had requested his help and he would follow Mr. Strachota's instructions to go work with Mr. Hicks. Plaintiff also testified that when he was first introduced to Mr. Hicks when he began working at the Navy Base he was told that “anytime he was requested to work over there that he - that [Mr. Hicks] requested that from [Mr. Strachota].” Pl. Dep. 18 (ECF No. 35-4). Presumably, then, at some point between the time Plaintiff first started working at the Navy Base in February of 2018, and the time he complained to Mr. Strachota in March or April of 2018, Plaintiff began bypassing Mr. Strachota and went directly to Mr. Hicks for his work assignments.
With respect to the sixth factor, training, Plaintiff testified that Mr. Hicks provided him with the training he needed to perform the work at the Navy Base.
Factor seven considers whether the individual's duties are akin to a regular employee's duties. In his affidavit, Plaintiff avers that he had the same exact title and duties as the CBAIA employees. Pl. Aff. ¶ 5 (ECF No. 5). However, although there were some tasks that their employees worked on together, both DAV-Force and CBAIA contracted separately and directly with the government to provide work at the Navy Base. Obee Dep. 28-29 (ECF No. 35-6). There was no contractual or other type of relationship between DAV-Force and CBAIA. Obee Dep. 28-29 (ECF No. 35-6). Further, one of the complaints Plaintiff had about working with the CBAIA employees was that DAV-Force employees were given an “unfair workload” compared to the CBAIA employees. Pl. Dep. 28 (ECF No. 35-4). In addition, Mr. White, a CBAIA employee, testified that when he once told Mr. Hicks that Plaintiff and Mr. Gordon needed their help because they were working outside with heavy tarps, Mr. Hicks told him “we have our own set of things we need to do.” White Dep. 33 (ECF No. 35-7). Thus, although the duties may have been similar, based upon the evidence in the record, the workload for DAV-Force employees differed from the workload for CBAIA employees.
The eighth factor to consider is whether the individual is assigned solely to the putative employer. As set forth above, Plaintiff avers that he worked with CBAIA employees during the entire time he was assigned to the Navy Base. Though there is other evidence in the record that he was not always working with CBAIA employees, in the light most favorable to Plaintiff, this factor weighs in favor of finding joint employment.
Finally, the ninth factor-whether the individual and putative employer intended to enter into an employment relationship-does not weigh in favor of finding joint employment. CBAIA's Human Resources Manager, Ms. Obee, testified that she was not aware of Plaintiff or of DAV-Force until Plaintiff filed his EEOC complaint. Obee Dep. 18 (ECF No. 35-6). She further testified that DAV-Force was not a subcontractor of CBAIA and, from what she understood, DAV-Force contracted directly with the government to work at the Navy Base. Obee Dep. 28-29 (ECF No. 35-6). She stated there was no relationship between CBAIA and DAV-Force. Obee Dep. 29 (ECF No. 35-6). Further, whenever Plaintiff had a complaint about his working conditions he spoke with Mr. Strachota, his DAV-Force supervisor, not Mr. Hicks, the CBAIA supervisor. Thus, there is no evidence in the record indicating that either Plaintiff or CBAIA ever intended to enter into an employment relationship with the other.
As stated by the Fourth Circuit in Butler, “[t]he object of the joint employment doctrine is to determine whether a putative employer ‘exercise[s] significant control over the same employees.'” Butler, 793 F.3d at 410 (quoting Bristol v. Bd. of Cnty. Comm'rs, 312 F.3d 1213, 1218 (10th Cir.2002)). In Butler, the Fourth Circuit found it significant that the defendant, Drive, who argued that it was not a joint employer of the plaintiff, exhibited a “high degree of control over the terms of [the plaintiff's] employment” because a Drive employee sent an email to a ResourceMFG employee directing that the plaintiff be replaced and ResourceMFG then terminated the plaintiff's employer. Id. at 415. The court found that Drive had “effective control over [the plaintiff's] employment.” Id. There is no evidence in the record here that CBAIA had any control over whether Plaintiff remained employed at the Navy Base on the DAV-Force contract. The Butler court also found significant that Drive employees handled the day-to-day supervision of the plaintiff on the factory floor. Id. Here, Plaintiff reported to Mr. Strachota, the DAV-Force supervisor on site, who directed where Plaintiff was to work each day. Plaintiff was not to perform work along with CBAIA employees unless he was directed to do so by Mr. Strachota. Once directed by Mr. Strachota, Plaintiff worked on tasks as specified by Mr. Hicks. Finally, in Butler, the court found there was “little to no effective difference between the work performed by the two sets of employees.” Id. In the present case, the evidence shows that, although the DAV-Force and CBAIA employees were generally responsible for some of the same set of tasks, the work as it was delineated between the two groups was not the same. Further, this case does not present a situation where DAV-Force contracted with CBAIA to provide labor so that CBAIA could fulfill its contractual obligations at the Navy Yard. Both DAV-Force and CBAIA each had their own contracts with the government at the Navy Yard.
In addition, the plaintiff in Butler testified that she was told that she worked for both Drive and ResourceMFG: “‘They always told me that both of them w[ere] our employers. ... [W]e w[ere] considered to be working for both.'” Id. at 407. In the present case, both Mr. Strachota and Mr. Hicks attempted to make it clear to both the DAV-Force employees, such as Plaintiff and Mr. Gordon, and the CBAIA employees, such as Mr. White, that Plaintiff and Gordon worked for DAV-Force, not CBAIA.
Based upon the evidence in the record, as noted above, there was no contractual or other type of relationship between DAV-Force and CBAIA as contemplated in Butler. Further, although some of nine factors set forth in the Butler test weigh in favor of finding joint employment, when considering all of the factors together as a whole and keeping in mind the ultimate goal of determining whether CBAIA exercised “significant control” over Plaintiff, Plaintiff fails to show that a genuine dispute of material fact exists on this issue. In sum, Plaintiff fails to show that CBAIA was a joint employer such that it could be liable under Title VII for the alleged racial discrimination and retaliation as alleged in this case. Therefore, summary judgment is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion for Summary Judgment (ECF No. 35) be granted and this case be dismissed.