Opinion
Case No. 03-1247-JTM
December 29, 2003
MEMORANDUM AND ORDER
This retaliatory discharge action is before the court on the Motion to Dismiss of the defendant Medici Properties, Inc. Although styled a Motion to Dismiss, the motion — which is grounded on the alleged status of the plaintiffs as independent contractors rather than employees — requires the consideration of evidence outside the pleadings, and is more appropriately considered a Motion for Summary Judgment. For the reasons identified herein, the motion will be denied.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legalsignificance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed R. Civ. P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Findings of Fact
On September 4, 2002, defendant Medici Properties contracted with Eldon L. Hetzel and Mary Belle Hetzel to provide cleaning services at Shadybrook Estates in Wichita, Kansas. The Hetzels signed an "Independent Contractor Verification" under which they performed all contract cleaning services. They did not have an employment contract with Medici Properties.
The parties dispute the intention underlying the relationship. According to the defendant, the parties intended the relationship of plaintiffs to defendant be that of independent contractors, and defendant never treated plaintiffs as employees. The Hetzels state that, notwithstanding the Independent Contractor Verification, they understood they were employees under the control and direction of the defendant. According to the Hetzels, they were hired to be assistant managers of the Shadybrook Estates facility.
The Hetzels admit that they signed the Independent Contractor Verification but deny that they performed contract services pursuant to it. According to the Hetzels, they were required to perform many duties in addition to cleaning services. They answered all emergency calls after 4:00 p.m., changed light bulbs, gave directions to EMS crews, helped mortuary workers, kept residents from fighting, did plumbing work, tit pilot lights, and responded to the alarm system and to persons making requests at their apartment. They state that they had to be available to perform these services 24 hours per day, seven days per week.
It is uncontroverted that the Independent Contractor Verification specifically provides that the Hetzels were not required to perform work exclusively for defendant; that they were not entitled to receive workers compensation benefits in the event of a work-related injury; that Medici Properties would not provide the Hetzels withany business registrations or licenses they needed to perform the cleaning services; that Medici Properties would not pay the Hetzels a salary or an hourly wage but would pay a specific amount fixed by the contract; and that Medici would not dictate the time of performance of services under the contract.
The Independent Contractor Verification specifically asserts that defendant would not provide any tools, equipment, or supplies. And the defendant's supervisory agents aver that the Hetzels provided their own cleaning supplies, chemicals and equipment as part of their contract cleaning services.
The Hetzels deny this, and aver that all of the cleaning supplies were provided by Medici. The affidavits of the Hetzels state that, although they used their own mop and vacuum, they also used a vacuum and mops belonging to Medici. With these exceptions, all other cleaning supplies were provided by Medici. From time to time, the Hetzels were instructed by Evelyn Jackson, the director of the facility, to go to Dollar General Store, where they purchased cleaning supplies. The Hetzels were reimbursed for the cost of these purchases.
Whether the Hetzels set their own schedule in cleaning the facility is subject to dispute. According to the defendant, the Hetzels were required to clean certain common areas, but they controlled the dates and times for completing the work Neither the owners nor the manager of Shadybrook Estates directed the Hetzels to clean certain areas on specific days or in a certain manner.
However, according to the Hetzels, they would "sometimes" clean the facility without supervisor directions. (Plf. Exh. 3, at ¶ 10). Evelyn Jackson gave verbal work assignments to the Hetzels "[o]n many occasions," and gave written work instructions "[o]n other occasions." (Id. at ¶ 13).
Defendant states that the Hetzels could obtain additional income by asking to clean vacated apartment units; had they been employees, it would have required this service without additional compensation. No formal job description existed for performance of the cleaning services plaintiffs provided.
The Hetzels received a monthly contract payment of $400 for cleaning common areas in the compound, regardless of the time it actually took to complete. They were not given W-2s; they received Form 1099s. It is uncontroverted that they did not share in the profits of Medici Partners, that they did not influence the business operations of Medici Partners II in any manner, that Medici did not provide any benefits whatsoever to the Hetzels, including life, health, or dental insurance, or retirement plans, that no federal or state withholdings were taken out of the contract payments made to the Hetzels, that the Hetzels have not applied for or collected unemployment compensation benefits through the Kansas Department of Human Resources.
In addition to their monthly pay, Medici also provided the Hetzels with an apartment, utilities paid, with an estimated value of $675 per month. In addition, Medici paid the Hetzels $350 for plaintiffs to obtain a release from an apartment they lived in before joining Medici, and paid the HUD deposit on their apartment at the defendant's facility.
The defendant challenges some of the facts contained in the plaintiffs' affidavits on the grounds that these reflect opinion testimony. Citing Goodman v. Wesley Medical Center, L.L.C., ___ Kan. ___, 78 P.3d 817 (2003), defendant argues that a plaintiffs unsupported opinion is insufficient in itself to create a genuine issue of material fact to survive a summary judgment motion in an action for retaliatory discharge. This reads Goodman overbroadly. The court in that case merely held that in a retaliation case, a plaintiff's otherwise unsupported "suspicions" as to her employer's motive for the termination are insufficient to deny summary judgment. Id. at 824. Such evidence as to another's motive is naturally too speculative to carry any legal weight. But the Goodman court did nothing to suggest that a plaintiff's averments as to the nature and circumstances of his own employment — personally observed by him and as described in detail — are somehow inadmissible in evidence. Accordingly, where the plaintiffs averments are otherwise admissible in evidence and documented in the record, they are included in the evidence presented here.
Conclusions of Law
The parties agree that plaintiffs can recover here only if they were employees, and not independent contractors, of Medici. The parties also essentially agree as to the relevant standard to be applied in determining whether the Hetzels' status, articulated in cases such as Knorp v. Albert, 29 Kan. App. 2d 509, 28 P.3d 1024 (2001). The court in Knorp wrote:
In general, the test to be applied was set out by the Supreme Court in Falls v. Scott, 249 Kan. at 64, 815 P.2d 1104 as follows:
"An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the results or product of his work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. [Citation omitted.]"
In addition to the general rule, the RESTATEMENT (SECOND) OF AGENCY § 220(2) sets out several relevant factors to be considered in deciding whether one is an employee or an independent contractor:
"(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
"(b) whether or not the one employed is engaged in a distinct occupation or business;
"(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
"(d) the skill required in the particular occupation;
"(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
"(f) the length of time for which the person is employed;
"(g) the method of payment, whether by the time or by the job;
"(h) whether or not the work is a part of the regular business of the employer;
"(i) whether or not the parties believe they are creating the relation of master and servant; and
"(j) whether the principal is or is not in business." The Kansas Supreme Court has indicated that the Restatement factors quoted above should be considered in determining the issue in question. See Brillhart v. Scheier, 243 Kan. 591, 597, 758 P.2d 219 (1988).29 Kan. App. 2d at 513-14.
Applying this standard to the present matter, and applying the relevant inferences in favor of the plaintiffs, the court finds that summary judgment in favor of defendant Medici is not appropriate. Although the Hetzels entered into the relationship by signing an "Independent Contractor Verification," much of the actual work performed by the Hetzels was done contrary to provisions in that agreement, and evidence exists which suggests that the defendant retained the right to control and supervise the Hetzels' work
The work performed by the Hetzels required no particular skills. They were not the owners or operators of any independent cleaning business. Medici's supervisor retained not only the right to control the Hetzels, but on many occasions exercised actual control over the schedule of the cleaning. Contrary to the written "Independent Contractor Verification, "the Hetzels did not provide all of the cleaning supplies. Many supplies were provided by Medici. Some were purchased by the Hetzels, for which they were subsequently reimbursed. The Hetzels were not employed to complete any discrete task which could be fully performed within a discrete time; the job was indefinite in duration. The Hetzels were not paid any specific fee; they were essentially given a recurring salary payment during the duration of the relationship.
Reviewing all of the evidence in the light most favorable to the plaintiffs, a rational finder of fact could conclude that Medici retained the right of control and supervision over the work of the Hetzels, as well as the right to direct the manner in which the work was to be performed and the result by which it was to be accomplished
IT IS ACCORDINGLY ORDERED this 29th day of December, 2003, that the defendant's Motion to Dismiss (Dkt. No. 13) is hereby denied.