Opinion
C.A. No. 5:99-1115
August 1, 2000
ORDER
Plaintiff, an employee of the Office of the Auditor for Orangeburg County, brings this Title VII sexual harassment claim against Orangeburg County complaining about the actions of Sydney Fulton, a former Orangeburg County deputy tax assessor. The matter is before the court on Defendant's Motion for Summary Judgment, filed January 18, 2000.
Pursuant to the Local Rules, the motion was referred to United States Magistrate Judge Joseph R. McCrorey for a Report and Recommendation. On May 25, 2000, the Magistrate Judge issued a Report in which he recommended that Defendant's motion for summary judgment be denied as to Plaintiff's Title VII claim, and granted as to Plaintiff's outrage claim.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. See 28 U.S.C. § 636 (b)(1).
Defendant filed its objections on June 8, 2000, to which Plaintiff responded on June 30, 2000. The court has studied the complete record in the matter, including the Report and objections, pleadings, answers to court's interrogatories, briefs and all supporting exhibits, as well as the applicable law. The court finds based on the complete factual record that Orangeburg County is not Plaintiff's statutory employer for Title VII purposes. Accordingly, the court sustains Defendant's objection, and GRANTS Defendant's motion for summary judgment as to the Title VII claim. The court DISMISSES WITHOUT PREJUDICE Plaintiff's outrage claim.
I. THE REPORT
The facts and procedural history of the case are set forth in the May 25 Report, and are briefly summarized here. In September 1992, Plaintiff became employed in the Orangeburg County Tax Assessor's Office. The Tax Assessor of Orangeburg County is an employee of the county and is appointed by the County Administrator. Plaintiff was supervised by Sydney Fulton, a deputy tax assessor. Plaintiff alleges that in the five months she worked in the Tax Assessor's Office she endured repeated and egregious sexual harassment by Fulton.
In February 1993 Plaintiff went to work for the Auditor of Orangeburg County, Roger Cleckley. The Auditor of Orangeburg County, South Carolina, is an elected official, answerable only to the electorate and the state office of Comptroller General. The Auditor's Office in which Plaintiff worked was located adjacent to the Tax Assessor's Office in which she formerly worked in the county administration building. Plaintiff contends that even after she left the Assessor's Office, Fulton continued his campaign of harassment. She alleges that some harassment occurred in the presence of the Auditor. Eventually Plaintiff complained of Fulton's alleged harassment to County officials in March 1997. Fulton was ultimately terminated. Plaintiff remains employed by the Auditor.
Plaintiff initiated this action against Orangeburg County on April 16, 1999. Her complaint, inter alia, alleges that Orangeburg County is an "employer" as defined by Title VII, 42 U.S.C. § 2000e(b). Plaintiff contends the County is liable under Title VII for Fulton's hostile environment sexual harassment, as well as the intentional infliction of emotional distress. The County denies the material allegations of the Complaint.
Before the Magistrate Judge Orangeburg County contended that it was not Plaintiff's "employer" nor was Plaintiff the County's "employee" for Title VII purposes. The County argued that the undisputed evidence showed that the County possessed no authority to hire, fire, or discipline Plaintiff, and that the sole responsibility to control the terms and conditions of her employment was entrusted to the Office of the Auditor, a separate and independent office from the County under South Carolina law. Thus, Defendant maintained it could not be held liable as Plaintiff's Title VII "employer." The Report, however, rejected the claim and found County Council's authorization of funds for Plaintiff's salary and benefits was determinative. Defendant objected, insisting that the Report erred and that the paramount test for gauging Title VII statutory employer status is the right to hire/fire/control the employee. The court agrees.
The Report also briefly mentioned the County handbook provisions and a statement made by a County personnel administrator to a bank loan officer to the effect that Plaintiff was a "county employee" as reasons also supporting a finding of employee status. Both of these factors are discussed below.
II. DISCUSSION
A Defendant must be an employer within the definition of Title VII as a jurisdictional prerequisite to the maintenance of a Title VII action. See Harris v. Palmetto Tile, Inc., 835 F. Supp. 263, 266 (D.S.C. 1993). The facts defining the employment relationship between Plaintiff and the Auditor's Office in South Carolina are not disputed. Nor are the facts concerning the operation of the Auditor's Office under the laws of South Carolina disputed. Although the parties vigorously debate the differing conclusions to be drawn from these underlying facts, resolution of this debate is a question of law. Cilecek v. Inova Health System Servs., 115 F.3d 256, 261 (4th Cir. 1997) (whether undisputed facts establish statutory employee status for Title VII is a question of law).
A plaintiff's status as an employee under Title VII is a question of federal, rather than of state, law; it is to be ascertained through consideration of the statutory language of the Act, its legislative history, existing federal case law, and the particular circumstances of the case at hand. Curl v. Reavis, 740 F.2d 1323, 1327 (4th Cir. 1984) (dispatcher-matron in North Carolina sheriff's department not subject to "personal staff exemption" of Title VII) quoting Calderon v. Martin County, 639 F.2d 271, 272-73 (5th Cir. 1981). Nevertheless, state law may be relevant insofar as it describes the plaintiff's position, including his duties and the way he is hired, supervised and fired. Id.
It is elementary that Title VII is an employment law, available only to employees seeking redress for alleged unlawful employment practices of their employers. Kern v. Rochester, 93 F.3d 38 (2d Cir. 1996) (city with no authority to supervise worker held not to be her employer). Title VII provides, in part, that "it shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2 (a). An employer under Title VII is "a person engaged in an industry affecting commerce who has fifteen or more employees," 42 U.S.C. § 2000e(b). An "employee" is circularly defined as "an individual employed by an employer." 42 U.S.C. § 2000e(f). In order to be subject to liability under Title VII, a defendant must (1) fall within Title VII's statutory definition of "employer," and (2) have exercised substantial control over significant aspects of the compensation, terms, conditions, or privileges of the plaintiff's employment. Magnuson v. Peak Technical Servs., Inc., 808 F. Supp. 500 (E.D. Va. 1992).
In determining whether a plaintiff has demonstrated an employer-employer relationship for purposes of federal anti-discrimination laws, courts have pursued two approaches. Those approaches include: (1) the "economic realities" or hybrid test; and (2) the common law agency test. Little distinction exists between the tests.
Under the hybrid test, adopted initially by the Fourth Circuit in Garrett v. Phillips Mills, Inc., 721 F.2d 979, 981-82 (4th Cir. 1983) (test for determining independent contractor/employee status under ADEA), the principal inquiry is the employer's right to control the "means and manner" of the worker's performance. See also Lambertsen v. Utah Dep't of Corrections, 79 F.3d 1024, 1026 (10th Cir. 1996) (Department of Corrections was not teaching assistant's employer because School District controlled major part of the work). The hybrid test also weighs eleven other factors including the kind of occupation, the skill required, the identity of the person furnishing the equipment and place of work, the length of time worked, the method of payment, the manner of terminating the work relationship, the existence of annual leave, the nature of the employer's business and whether the work done is an integral part of it, the existence of retirement benefits, the payment of social security taxes by the employer, and the intention of the parties. No single factor is determinative. Courts follow a "totality of circumstances" approach under the hybrid test. Id.
As noted above, the hybrid test has historically been applied to determine if an individual is an independent contractor or an employee under Title VII. Some of the eleven hybrid test factors, e.g., availability of annual leave, thus have less relevancy in a situation such as this where it is undisputed that Plaintiff is somebody's "employee" and is entitled to leave. The relevant question in the case at hand, though, is who is Plaintiff's employer?
At least four circuit courts of appeals have recognized that the hybrid approach is nearly indistinguishable from the common law agency test promulgated by the United States Supreme Court in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) (adopting common law agency principles to define an employee under ERISA). See Lambertsen v. Utah Dep't of Corrections, 79 F.3d 1024 (10th Cir. 1996); Folkerson v. Circus Circus Enterprises, 1995 WL 608432 at 3 (9th Cir. 1995); Wilde v. County of Kandiyohi, 15 F.3d 103, 106 (8th Cir. 1994); Frankel v. Bally, 987 F.2d 86, 90 (2d Cir. 1993). Under the Darden test no single factor is decisive, and the primary focus remains (as for the hybrid test) whether the hiring party controls the means and manner by which the work is accomplished. 503 U.S. at 323. The common law agency test in its pure form did not appear to embrace the eleven hybrid factors.
After Darden the Fourth Circuit gravitated towards the agency approach, blending it with remnants of the hybrid test. The court in Haavistola v. Community Fire Co., 6 F.3d 211, 220 (4th Cir. 1993), directed that, "whether an individual is an employee . . . is properly determined by analyzing the facts of each employment relationship under a standard that incorporates both the common law test derived from principles of agency and the so-called 'economic realities' test first announced in Bartels v. Birmingham, 332 U.S. 126 (1947)." Courts weigh the totality of circumstances surrounding the working relationship. Zinn v. McKune, 143 F.3d 1353 (10th Cir. 1998) (nurse was not employee of Department of Corrections for Title VII purposes because of lack of control over her work).
The Fourth Circuit applied this blended test in Cilecek v. Inova Health System Services, 115 F.3d 256 (4th Cir. 1997). There the Fourth Circuit determined that an emergency room physician providing services to hospitals under contract was an independent contractor. After emphasizing that "the manner and means" of work is the principal focus, the court in Cilecek isolated a slightly modified list of ancillary factors for consideration: skill required, source of the instrumentalities and tools, location of the work, duration of the relationship, hiring party's right to assign additional projects, hired party's discretion over when to work, method of payment, hired party's role in hiring and paying assistants, whether the work is the regular business of the hiring party, whether the hiring party is in business, the provision of employee benefits, and the tax treatment of the hired party. Applying these factors, Cilecek found that a physician was an independent contractor because he controlled his hours and income and determined for whom he worked. The court summarized, "these are core incidents to a work relationship that are inconsistent with employee status." 115 F.3d at 261. Even more recently, in 1998 the Fourth Circuit in Bender v. Suburban Hospital, Inc., 159 F.3d 186, 190 (4th Cir. 1998) (physician determined to be independent contractor of PPO), reflected that although multiple factors are weighed in determining employee status, "the critical question is 'the degree of control exercised by the hiring party' over 'the work and its instrumentalities and circumstances.'"
In the present case, the court finds that the Report erred in ascribing disproportionate weight to some secondary factors, such as which entity writes the paycheck, while failing to consider that the County had no right to control any aspect of Plaintiff's daily performance. In doing so, the Report departed from the mandates of Cilecek and Bender.
The office of county auditor is a creature of state law in South Carolina. The primary statutory provisions governing the operation of the office are set forth at Title 12, Chapter 39 of the South Carolina Code of Laws. In some counties in South Carolina the Governor appoints the auditor, S.C. Code Ann. § 12-39-10, but in counties having a council-administration form of government, such as Orangeburg County, the auditor is an elected official, id. § 4-9-60.
A multitude of other state provisions also direct auditors. Those provisions are scattered throughout the South Carolina Code in Title 4, Chapters 15, 19, and 29; Title 5, Chapter 3; Title 6, Chapters 11 and 13; Title 8, Chapter 21; Title 11, Chapter 3; Title 12, Chapters 4, 37, 44, 45, 49, 51, and 60; Title 23, Chapter 35; Title 25, Chapter 13; Title 31, Chapters 6, and 12; Title 48, Chapter 11: Title 49. Chapters 17 and 29; Title 50, Chapter 19; Title 57, Chapters 19 and 21; and Title 59, Chapters 20, 21, 31, 71, and 73.
County auditors are answerable only to the South Carolina Comptroller General and the Department of Revenue, Murph, County Auditor v. Query, 40 S.E.2d 245, 246 (S.C. 1946), and, where elected, by the electorate. Only the Governor of South Carolina possesses the power to remove or replace a county auditor during a term of office. S.C. Code Ann. § 12-39-30. Pursuant to statutory directive, each county must provide the office of county auditor with office space, furniture, equipment, and other tools necessary to perform the functions of the office. Id. § 4-1-80. The county uses its taxing authority to generate revenues to fund the payment of salary and benefits for auditor's office employees. The supplemental salaries of county auditors are provided by the state. Id. § 8-15-65. The county has no employment or discharge authority over any personnel employed in the auditor's office. Id. § 4-9-30(7). In fact, the auditor has sole power over his employees. An auditor has discretion whether to opt-in to county personnel policies for his office. Cleckley Depo. at 41-44.
The total autonomy of a county auditor in a council-administration form of government from the local county administration was underscored in a recent case of the South Carolina Court of Appeals. In Eargle v. Horry County, 517 S.E.2d 3 (S.C.Ct.App. 1999), a county auditor sought a declaration that the county administrator lacked the power to suspend, even briefly, several of the auditor's employees. The court was compelled to construe the provisions of S.C. Code Ann. § 4-9-30(7) limiting the exercise of employment authority by the county over employees of elected officials. Relying on S.C. Code Ann. § 44-9-650, which provides that "the county administrator shall exercise no authority over any elected officials of the county whose offices were created either by the Constitution or by the general law of the State," and § 4-9-30(7), the court held that under South Carolina law a county administrator had no authority to suspend the employees of a county auditor, an elected official. The court recognized that antagonism could develop and doubtless there might "be some tension between the elected officials and the county governing body." 517 S.E.2d at 6. Thus, Eargle is conclusive authority that Orangeburg County possessed no employment authority whatsoever over auditor's office employees.
The Fourth Circuit has recognized the stringent barrier erected by § 4-9-30(7) to a county's exercise of authority over employees of county elected officials. For example, in Amos-Goodwin v. Charleston County Council et al., 161 F.3d 1, 1998 WL 610650 (4th Cir. 1998), eight Charleston County probate court clerks of court brought a civil rights action under 42 U.S.C. § 1983 against Charleston County and its Council alleging politically-motivated termination. Judge Duffy dismissed the claims against the County defendants on the grounds that because the plaintiffs were employees of the probate judge and not of the County, the County defendants could not have wrongfully terminated them. The Fourth Circuit affirmed, relying on § 4-9-30(7) for the proposition that the County defendants had no authority over the personnel actions of probate court employees. The court stated, "because Appellants were employees of an elected official, the probate judge, and were not county employees, they were not entitled to a grievance hearing under § 4-9-30(7)," 1998 WL 610650 at 1 (emphasis added). Although Amos-Goodwin was not a Title VII case, the factual circumstances surrounding the employment relationship between Plaintiff and the auditor for Orangeburg County parallel the relationship between the probate court clerks of court and the Probate Judge in Amos-Goodwin, suggesting similar treatment.
Orangeburg County's statutory obligation to pay Plaintiff's salary and benefits, without any evidence of a right to control the manner and means of her work, is inadequate to confer Title VII employer status on it. In reaching this conclusion, the court follows the approach of several courts in similar situations. For example, in Bloom v. Bexar County, 130 F.3d 722 (5th Cir. 1997), a Texas state court reporter sued Bexar County under the Americans with Disabilities Act, 42 U.S.C. § 12112, asserting that the County's failure to accommodate her disability compelled her constructive discharge. Under Texas law, the County had no authority to hire, fire, or assign court reporters. Instead, the state court reporters were subject solely to the control of the elected state court judges. However, pursuant to Texas law, the County, like Orangeburg County in the present case, was required to "perform the ministerial task of paying the salaries of court reporters," 130 F.3d at 724. In affirming the district court's finding that Bexar County was not the plaintiff's employer for Title VII purposes, the Fifth Circuit reasoned,
The Texas legislature's decision to explicitly vest control of state district court reporters in state district judges rather than counties precludes a finding that Bexar County was Bloom's employer for ADA Title I purposes.
. . .
While Bexar County may perform the ministerial task of paying the salaries of court reporters, it does so under the direction of state law.
These same factors would preclude finding an employment relationship in the context of a Title VII employment discrimination claim. In the Fifth Circuit, we determine the existence of an employment relationship for Title VII purposes using the hybrid economic realities/common law control test. Although other factors are relevant, the most important factor is "the extent of the employer's right to control the 'means and manner' of the worker's performance . . .'" Bexar County had no right to control the means and manner of Bloom's performance because the Texas legislature vested that right exclusively in the state district court. Furthermore, none of the "economic reality" factors weigh strongly in Bloom's favor, therefore, no employment relationship existed. Accordingly, the federal district court correctly granted summary judgment as to Bloom's Title I claims.Id. at 725 (citations omitted).
In Lee v. Mobile County Commission, 954 F. Supp. 1540 (S.D. Ala. 1995), a court security officer (CSO) sued an Alabama County Commission under federal antidiscrimination laws. Notwithstanding the County's obligation to pay the salary of the CSO through its budgeting of funds for the operation the court, the district court found that the CSO failed to establish the County was her employer for Title VII purposes. The court stated that the determination of Title VII employer status required an examination of the defendant's role with regard to the right to hire, fire, transfer, promote, discipline, set the terms, conditions and privileges of employment, train and pay the plaintiff Id. at 1545. The court emphasized, however, that the paramount factor was the defendant's right to control the means and manner of the worker's performance. Id. The court rejected the plaintiffs attempt to establish employer status through evidence of the county's payment of her salary, reasoning "[s]imply because an entity such as the Mobile County Commission is required under state law to pay the salaries of employees does not mean that such entity is the employer of those employees for purposes of liability under Title VII." Id. (citations omitted). Thus, the court held:
Lee has presented no evidence to establish that the Mobile County Commission is her "employer" as that term is defined under Title VII. The Mobile County Commission had no authority to hire, fire, transfer, promote, discipline, set terms, conditions and privileges of employment, or train Lee. The mere duty to pay Lee's salary through the budgeting of funds for the Circuit Court does not mean that Lee is deemed an employee of the Mobile County Commission for liability purposes under Title VII.Id. See also Hughes v. Bedsole, 913 F. Supp. 420, 427 (E.D. N.C. 1994) (County was not deputy sheriffs employer notwithstanding that the County paid the salary of the deputy pursuant to its taxing authority). Bloom and Lee illustrate the principle that a ministerial obligation to pay a salary under the law is insufficient to establish employer status under Title VII where there is a total absence of any evidence of the right to control the means and manner of the worker's performance. That is precisely the situation in the case at hand.
As the deposition of Auditor Cleckley establishes, the Auditor and his employees are wholly outside the scope of Orangeburg County's control. The Auditor reports to a state office of the Comptroller General and is answerable to the electorate of Orangeburg County. The Auditor possesses the exclusive authority to determine the means and manner of his employee's performance. Only the Auditor is empowered to discipline his employees. Although the Report weighed as evidence of an employment relationship the adoption of Orangeburg County personnel policies in the Auditor's Office, Cleckley's deposition clarifies that his decision to "opt in" to the county personnel handbook was a wholly discretionary and personal decision over which the County had no control. Any violation of the handbook was punishable only by Cleckley, not any County administrator. Deposition at 43-44. In light of the optional adoption of the County handbook in the Auditor's Office, the court does not find that to be a factor weighing in favor of an employment relationship between Plaintiff and the County.
Neither does the court accord controlling weight to a one-time statement contained in a letter written by a county personnel administrator to a bank loan officer to assist Plaintiff in borrowing money. The statement identified Plaintiff as a "County employee." The letter was prepared by an Orangeburg County employee because Orangeburg County pays Plaintiff's salary pursuant to its statutory obligation. The letter, written by a nonlawyer, was not generated after any analysis of the factors necessary to establish Title VII employer status. The court will not elevate this informal statement prepared by a county personnel department employee to the status of a binding admission by Orangeburg County of Title VII employer status. Moreover, as the court in Paxton v. Bearden, 783 F. Supp. 1011, 1014-15 (N.D. Miss. 1992), found, statements, even those elevated to the status of a state statute declaring a deputy court clerk to be a county employee, were not determinative because "the court must look principally not to state law but to federal law."
Application of the governing federal law factors to the present case convinces the court that Orangeburg County is not Plaintiff's employer for Title VII purposes. Evidence of the Auditor's unbridled discretion in the management of his employees is uncontradicted. None of the relevant "blended test" factors espoused in the Fourth Circuit's decision in Cilecek weigh so significantly in Plaintiff's favor that they can overcome the unchallenged evidence of the County's total lack of control over the means and manner of Plaintiff's performance.
Several of the factors have little relevancy outside the context of a Title VII independent contractor versus employee inquiry. Nevertheless, the court has attempted to apply them to the case at hand. Plaintiff's job at the Auditor's Office requires clerical skills. The County, through its statutory mandate, provides the Auditor with an office in the County Administration building. Plaintiffs employment is at-will, expected to continue indefinitely unless terminated earlier by either party. Orangeburg County has no authority to assign work to Plaintiff. The Auditor determines Plaintiff's hours of work. Orangeburg County has no authority to hire assistants to Plaintiff. It is not Orangeburg County's regular business to perform the functions of the Auditor's Office for Orangeburg County. Plaintiff is not "in business" although the Office of Auditor maintains a separate business. Orangeburg County, by statutory direction, provides salary and benefits to Plaintiff, and presumably reports all financial records for tax purposes as well.
Plaintiff contends the County waived its employer defense by waiting too long to assert it. Plaintiff complains the issue was not raised at the administrative level, but only upon summary judgment in litigation. The Fourth Circuit rejected such a claim of dilatoriness in Curl v. Reavis, 740 F.2d 1323, 1326 n. 2 (4th Cir. 1984). There, the issue of employer/employee status was not raised until the second day of trial. The court found that "employee status is an element of a substantive Title VII claim," and therefore a motion challenging the element could be made at any time up to and including trial on the merits, citing Federal Rule of Civil Procedure 12(h)(2). Accordingly, the court finds no merit to Plaintiff's waiver argument.
III. CONCLUSION
IT IS THEREFORE ORDERED that Defendant Orangeburg County's Motion for Summary Judgment is GRANTED as to the Title VII claim. IT IS FURTHER ORDERED that Plaintiff's outrage claim is DISMISSED WITHOUT PREJUDICE as the court declines to exercise supplemental jurisdiction over the claim, Taylor v. Waters, 81 F.3d 429 (4th Cir. 1996).
The court's grant of summary judgment is without prejudice to Plaintiff's ability to initiate an action against the Auditor for Orangeburg County, should she choose to pursue such a course.
The court's review of Plaintiff's April 16, 1999, Complaint does not disclose any basis for jurisdiction other than the federal question jurisdiction alleged under the Title VII claim. Even if it was not the court's usual practice to decline to exercise supplemental jurisdiction over state claims when federal claims are dismissed before trial, there is some doubt the court would have subject matter jurisdiction to proceed with Plaintiff's outrage claim. Several cases indicate a failure to establish Title VII employer status is a defect in subject matter jurisdiction. See, e.g., Auld v. Law Offices of Cooper, Beckman Tuerk, 981 F.2d 1250, 1992 WL 372949 (4th Cir. 1992) (recognizing that failure to establish Title VII employer status removes subject matter jurisdiction). The court's jurisdiction over Plaintiff's outrage claim hinges exclusively on supplemental jurisdiction pursuant to 28 U.S.C. § 1367 (a). In the absence of subject matter jurisdiction over the Title VIl claim, the court lacks supplemental jurisdiction to entertain Defendant's motion for summary judgment as to the outrage claim.