Opinion
3-02-CV-2532-AH
November 19, 2003
MEMORANDUM OPINION AND ORDER
Pursuant to the written consents of the parties to proceed before a United States Magistrate Judge and the District Court's Transfer Order filed on May 23, 2003 in accordance with the provisions of 28 U.S.C. § 636(c), came on to be considered Defendant's Motion for Summary Judgment filed on October 8, 2003, Plaintiff's Response filed on November 5, 2003, and Defendant's Reply filed on November 10, 2003 and the court finds and orders as follows.
Statement of the Case:
In his amended complaint filed on August 5, 2003 Heckler alleges that Defendant engaged in reverse discrimination in its employment practices and retaliated against him by reason of prior discrimination complaints. In its motion Defendant Product Development Corporation asserts three alternative grounds on which it claims to be entitled to summary judgment: (1) that Plaintiff is an independent contractor and therefore lacks standing to seek relief under Title VII, (2) that Plaintiff's claims are barred by res judicata, and (3) the Plaintiff cannot establish genuine issues of fact which preclude a finding that he was not the victim of discrimination proscribed by Title VII. Analysis: A. Summary Judgment Standard
Previously the court dismissed Plaintiff's claims brought under 42 U.S.C. § 1983, but allowed Plaintiff the opportunity to file an amended complaint. See Court's Order filed on July 17, 2003 in this action.
To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir: 1994) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510).
Once the moving party has made an initial showing, the party opposing the motion for summary judgment may not merely rely on his pleadings, but must come forward with competent evidentiary materials that establish a genuine fact issue. Anderson, 477 US at 256-257, 106 S.Ct. at 2514; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986). Neither conclusory allegations nor hearsay statements are competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (citation omitted).
FED. R. Civ. P. 56 does not impose a duty on the court to "sift through the record in search of evidence" to support a non-movant's opposition, and therefore Heckler "is required to identify specific evidence in the record and to articulate the manner in which the evidence supports his claims." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
The court must resolve any factual controversies in favor of the non-moving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996) (citation omitted). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to Plaintiff's claims, drawing all factual inferences and making all credibility determinations in his favor. However, summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322.
B. Defendant's Reasons for Summary Judgment
In order to be entitled to relief under Title VII a plaintiff must be an employee of a defendant party, and absent an employer-employee relationship, the alleged aggrieved plaintiff has no standing to bring a Title VII action. See, e.g. Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270, 272 (5th Cir. 1988). Product Development Corporation contends that Plaintiff was an independent contractor in his business relationship with it and therefore has no standing to bring an act under the Civil Rights Act of 1964, as amended.
The Fifth Circuit has adopted the hybrid economic realities / common law test for determining the existence of an employment relationship. See, e.g. Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019-20 and n. 4 (5th Cir 1990); see also Diggs, 847 F.2d at 272. Of the eleven factors recommended in these cases, "the right to control is the most important factor." Broussard, 789 F.2d at 1160. However in applying the economic realities / common law test, the court is to carefully consider the particular facts of each case, rather than using any general formulas in deciding a Plaintiff's status vis-a-vis a defendant. See, e.g. Deal v. State Farm County Mut. Ins. Co. of Tex., 5 F.3d 117 (5th Cir 1993).
In support of its claims that Heckler was at all times an independent contractor, Defendant relies on the answers which Heckler gave in his prior deposition in which he sued under Title VII, on his deposition taken in the present case, and the affidavit of David V. Forley, Defendant's chief financial officer. These summary judgment materials, when considered in light of the eleven factors, supra, all support a finding that that Plaintiff was an independent contractor. See also Def.'s Summ. J. Br. at 6-7 for a summary of the evidence.
Plaintiff's response and particularly his exhibits attached thereto fail to raise an issue of fact as to his status. The exhibits do not rebut any of the enumerated factors under the appropriate test. Defendant has conceded that it made use of an orientation video to persons such as Plaintiff who were paid to distribute telephone directories (See Def.'s Br. at 9; see also PDC Distributors Video Script, dated 10/18/95, attached as Exh. B to Pl.'s Resp.). This court agrees with Judge Buchmeyer — who considered the same circumstance in a case that is nearly identical to that asserted by Heckler — that this instructional video does not suffice to raise a genuine issue of fact that such conduct constituted the act of an employer. See Steehler v. Prod. Dev. Corp., No. 3:00-CV-2086-R, 2003 U.S. Dist. LEXIS 11198 (N.D.Tex. July 1, 2003). Therefore, absent a genuine issue of fact with respect to Plaintiff's status as an employee of Defendant, Plaintiff lacks standing to bring this action under Title VII of the Civil Rights Act.
Exh. E to Plaintiff's Response is wholly irrelevant given that it pertains to a third party and is dated May 25, 1999.
Since there is no employer-employee relationship between Defendant and Plaintiff, the court pretermits analysis on Defendant's remaining two grounds for summary judgment.
It is therefore ORDERED that Defendant's Motion for Summary Judgment is GRANTED.