Opinion
CA 3:00-CV-2086-R
February 22, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Jim Steehler (" Mr. Steehler") asserts claims against Defendant Product Development Corp ("PDC") for: (1) racial discrimination in violation of 42 U.S.C. § 2000e, et seq.; ("Title VII"); (2) civil rights violations under 42 U.S.C. § 1981, § 1983, and § 1985(3). Now before this Court is Defendant's Motion to Dismiss Plaintiffs Initial Complaint, filed December 14, 2000. For the reasons stated below, Defendant's motion is GRANTED in part and DENIED in part.
I. BACKGROUND FACTS
Plaintiff Steehler, who is white, alleges claims of reverse discrimination against PDC, for whom he provided delivery services of telephone books. At an unknown time, but no earlier than 1996, Mr. Steehler was hired by PDC, a company that contracts with Southwestern Bell to deliver telephone books to Southwestern Bell's customers. According to Mr. Steehler's affidavit, provided with the Plaintiffs Response to the Motion to Dismiss, PDC's contract with Southwestern Bell provides a date by which all customers must receive their telephone books through PDC's carriers. PDC in turn, hires carriers and assigns particular delivery routes to each carrier. The carriers provide their own vehicles and pay for their own taxes, license and registration fees, although PDC has paid for vehicular damage that occurs while carriers are delivering books for PDC. When a carrier is hired by PDC, he or she must attend a training session where PDC representatives teach carriers how to deliver the phone books, what to wear while delivering, and how long deliveries of the books should take. The applications signed by PDC carrier applicants specify that hired carriers are solely permitted to deliver PDC products during the period of time in which they work for PDC. Further, PDC assigns carriers delivery routes, and also provides maps and tools to its carriers necessary to complete the delivery routes. When a PDC driver is required to deliver telephone books outside the local area, PDC pays its carriers' transportation expenses and has paid for Mr. Steehler's expenses in this regard on more than one occasion. PDC also requires its carriers to sign a compliance form in regards to drug testing. From the documentation opposing the motion, it appears that PDC carriers are paid per phone book delivered, paid per delivery stop made, or paid for entire predetermined delivery routes the carrier completes less any individual books he fails to deliver from that predetermined route. In all cases, the contract company, rather than PDC, determines the method of payment to carriers.
To support his allegations of discrimination, Mr. Steehler claims that drivers of Hispanic origin had "first dibs" on the most lucrative routes, and that Hispanic drivers were paid more money per book delivery than non-Hispanic drivers, specifically $1.13 per stop when the company norm was $.30 per stop. Mr. Steehler also alleges that Hispanic drivers, hired as "crews" or "teams" by PDC rather than individually, received bonuses for their work from Hispanic supervisors that non-Hispanic carriers did not receive. Mr Steehler further alleges that Hispanic drivers were routinely permitted to take two or three routes at one time while non-Hispanic drivers only received one route at a time. Finally, Mr. Steehler asserts that PDC did not require Hispanic drivers to carry state automobile insurance, nor did it require Hispanic drivers to possess valid Social Security numbers.
On June 26, 2000, Mr. Steehler filed a complaint regarding this action with the Equal Employment Opportunity Commission, and he received his Right to Sue notice on that same day. On September 22, 2000, Mr. Steehler properly filed suit in this Court within the ninety day window required by the statute. PDC responded with this Motion to Dismiss on December 14, 2000.
II. LEGAL ANALYSIS
A. Standard of Review
When ruling on a motion to dismiss, the court must accept all well-pleaded facts as true and view them in the light most favorable to the pleading party. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). The complaint will only be dismissed if it appears beyond doubt that the pleading party can prove no set of facts in support of its claim that would entitle it to relief. See Campbell 43 F.3d at 975; Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994). The relevant question is not whether the pleading party will prevail, but whether it is entitled to offer evidence to support its claims. See Cross Timbers Concerned Citizens v. Saginaw, 991 F. Supp. 563, 571 (N.D. Tex. 1997).
B. Title VII Claim
It is well-established in this Circuit that an employer/employee relationship must exist between a plaintiff and a defendant before that plaintiff can prevail on a Title VII charge. See Diggs v. Harris Hospital-Methodist Inc., 874 F.2d 270, 272 (5th Cir. 1988);Broussard v. L.H. Bossier Inc., 789 F.2d 1158, 1159 (5th Cir. 1986). In this case, PDC asserts that Mr. Steehler's relationship with PDC was that of an independent contractor rather than an employee, and that he lacks standing to bring his Title VII claim. To determine whether an individual is an employee or an independent contractor, this Circuit adopted the economic realities test first outlined by the District of Columbia circuit in Spirides v. Reinhardt 613 F.2d 826 (D.C. Cir 1979), which states that "the right to control is the most important factor in determining employee status." Broussard, 789 F.2d at 1160. Among other factors, the right to control is evidenced by ownership of equipment used to perform the job, responsibility for the costs of maintaining that equipment, such as licensing and tax costs, length of employment period, payment methods, and the directives on schedules and how work will be performed. See id.
See Mares v. Marsh, 777 F.2d 1066, 1067-68 (5th Cir. 1985), for the specific case in which the Fifth Circuit adopted the Spirides test.
However, the right to control is not alone determinative. Other relevant factors from Spirides include: (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer;" (9) whether the worker accumulates retirement benefits: (10) whether the "employer" pays social security taxes; and (11) the intention of the parties. See Spirides, 789 F.2d at 1160.
In its Motion to Dismiss, PDC aptly points out several facts in this case that support its argument that Mr. Steehler was hired by PDC as an independent contractor, rather than an employee. For example, PDC correctly argues that Mr. Steehler possessed his own vehicle to perform deliveries for PDC, and was responsible for the automobile insurance, taxes, license fees, and maintenance on that vehicle. Moreover, Mr. Steehler does not dispute that he worked for PDC "by the job," meaning that PDC assigned him specific delivery routes, and that PDC paid Mr. Steehler per stop or per book delivered, rather than an hourly salary.
However, on a Motion to Dismiss, this Court must rule in favor of the nonmovant if it appears that any set of facts exist upon which the nonmovant can base a legal claim. In this case, the affidavit of Mr. Steehler, provided with his Response, indicates the presence of facts that could permit a reasonable person to determine Mr. Steehler was an employee of PDC, rather than an independent contractor. The fact that PDC will pay for damages to vehicles that occur while making PDC deliveries, reimburse carrier expenses on long-distance deliveries, require all PDC carriers to attend training sessions and watch videos before they begin delivery, and require mandatory drug testing in the event of an accident indicates that PDC maintains more control over its carriers than it could if those carriers were strictly independent contractors. Mr. Steehler does not select his own routes, nor does he decide the manner in which the telephone books are delivered. More importantly, the application Mr. Steehler signed to work for PDC binds him to solely deliver PDC's product. Based on the aforementioned information, this Court has determined that Mr. Steehler has satisfied his burden of production on a 12(b)(6) motion that he worked for PDC as an employee, rather than an independent contractor.
In its brief on this motion, Defendant PDC makes much of the fact that Mr. Steehler respresented himself as an independent contractor to the EEOC at the time he filed his initial claim in June of last year. However, Mr. Steehler was not yet represented by counsel at that time, and this Court believes Mr. Steehler's arguments that at the time of the EEOC filing, he misunderstood the difference between an independent contractor and an employee for the purposes of Title VII. Indeed, as this briefing has shown, the difference is often difficult for courts of law to determine. This Court will not deny Mr. Steehler his day in court on semantics grounds.
As this Court has determined that Mr. Steehler has shown facts sufficient to convince a reasonable person that he worked for PDC as an employee, rather than an independent contractor, PDC's Motion to Dismiss must be DENIED as to Mr. Steehler's Title VII claim. Both the complaint and Mr. Steehler's affidavit contains facts that support Mr. Steehler's allegations of racial discrimination, and thus, PDC's dismissal motion is not proper at this time.
To satisfy PDC's argument that Mr. Steehler's actual complaint is deficient, the Plaintiff is hereby ORDERED to amend his initial complaint to ensure that it properly asserts that Mr. Steehler worked in the capacity of an employee for PDC, and refers to the evidence in his affidavit that supports his Title VII charge.
C. 42 U.S.C. § 1981 Claim
Mr. Steehler also alleges that he was constructively discharged by PDC because he was forced to resign as a result of PDC's racially discriminatory practices, in violation of 42 U.S.C. § 1981. In order for Mr. Steehler's constructive discharge claim under § 1981 to survive, he must allege that his working conditions were "so intolerable that a reasonable employee would feel compelled to resign." Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1994). To determine whether an individual's work conditions would compel a reasonable person to resign, this Circuit considers the following factors, singly or in combination; (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not. Id at 297.
The complaint in this case does not indicate working conditions rising to the level of "intolerable" as defined by this Circuit. Mr. Steehler's complaint does not assert that his supervisors harassed or badgered him, lowered his salary, denied him benefits, reduced his job responsibilities, or reassigned him. To the extent that Mr. Plaintiffs complaint does indicate salary disparities existed between carriers as a result of race discrimination, PDC's actions in this regard are more appropriately assessed under Mr. Steehler's Title VII claim. An employee resignation from an intolerable work environment constitutes constructive discharge only when conditions are such that the employee "has no thoughts of returning, even when the price is right." Meisner v. State of Texas, U.S. Dist LEXIS 12675 at 30 (N.D. Texas August 31, 2000). According to the facts pled in the complaint, the crux of Mr. Steehler's claim is that Hispanic drivers experienced preferential treatment, not that he himself was treated in an intolerable manner. For these reasons, this Court GRANTS summary judgment to PDC on Mr. Steehler's § 1981 claim.
D. 42 U.S.C. § 1983 Claim
In Plaintiffs Response to Defendant PDC's Motion to Dismiss, Mr. Steehler writes; "Plaintiffs counsel has discussed with Defendant's Counsel the fact that Plaintiff will release his Section 1983 claim." Therefore, in regards to this claim, PDC's Motion to Dismiss is GRANTED. E. 42 U.S.C. § 1985 Claim
Plaintiff's Response, p. 11.
Mr. Steehler also alleges a conspiracy within PDC to deprive him of his civil rights, apparently between PDC supervisors and Hispanic carriers. To properly state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: "(1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States." Hilliard v. Ferguson, 30 F.3d 649, 652-653 (5th Cir. 1994). However, in this case Mr. Steehler has failed to show that the alleged conspiracy involved two or more persons. As stated inHilliard, "It is a long-standing rule in this circuit that a `corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation.'" Hilliard, 30 F.3d at 653 (citingNelson Radio Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952.) Although in his Response, Mr. Steehler writes that "Plaintiff will amend his Original Complaint to include the necessary agents of the Defendant who conspired against him," all of the individuals Mr. Steehler cites in both his complaint and his Response are members of PDC corporation, and it does not appear to this Court that an amended complaint will save this claim. For this reason, PDC's Motion to Dismiss Plaintiffs § 1985(3) claim is GRANTED.
Plaintiff's Response, p. 11.