Hardy v. Town of Perla Water Association et al
MEMORANDUM OPINION. Signed by Honorable Robert T. Dawson on July 22, 2009. (dmc)
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION RUSSELL G. HARDY v. Case No. 08-6025 DEFENDANTS PLAINTIFF
TOWN OF PERLA WATER ASSOCIATION and MAYOR RAYMOND ADAMS MEMORANDUM OPINION
Plaintiff, Russell G. Hardy, brings this action against his former employer, the to Town as of "Perla Perla Water Water Association and
Mayor Raymond Adams in his official capacity1 for alleged racial discrimination, hostile work environment, and retaliation in
violation of Title VII of the Civil Rights Act of 1964 and for violating other rights allegedly those guaranteed prohibiting by the Arkansas
retaliation, and wrongful termination. Currently before the Court are Defendants' Motion for
Summary Judgment and accompanying documents (Docs. 21-23, 32-33) and Plaintiff's Response and accompanying documents (Docs. 2729). The issue to be determined is whether the Perla Water
Association is an "employer" as defined by Title VII, and for the reasons reflected herein, we conclude that the Perla Water
"...[S]upervisors may not be held individually liable under Title VII." Bonomolo-Hagen v. Clay Central-Everly Cmty. Sch. Dist., 121 F.3d 446, 447 (8th Cir. 1997); Spencer v. Ripley County State bank, 123 F.3d 690, 691-92 (8th Cir. 1997).
Association is not.
Defendants' Motion for Summary Judgment is
therefore GRANTED, and Plaintiff's Title VII claims of alleged racial discrimination, hostile work environment, and retaliation are DISMISSED WITH PREJUDICE. is based on a federal Because this Court's jurisdiction we decline to exercise
supplemental jurisdiction over Plaintiff's remaining state law claims. These are dismissed without prejudice as to his right
to pursue them in state court. I. Factual Background
In determining whether summary judgment is appropriate, a court must view the facts and inferences in the light most
favorable to the non-moving party. See Rabushka v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997). The following facts are
undisputed. Russell G. Hardy worked twenty-two years for the Perla
He became the general manager in 1990, and
his employment terminated on April 9, 2007. Raymond Adams became the Mayor of the Town of Perla
(hereinafter referred to as "Perla"), and thus, the supervisor of the Perla Water Association on January 1, 2007. As Mayor,
Raymond Adams approved all invoices, signed all checks, and was responsible for the hiring and firing of employees. The Perla Water Association supplies water to people
residing in Perla and to some individuals who reside outside of
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The Perla Water Association employed six (6) persons and
five (5) of those employees, including the Plaintiff, resigned their jobs on April 9, 2007. Perla has one (1) policeman, one (1) janitor, three (3) office administrators, six (6) City Council Special Members
including the mayor, and over ten (10) volunteer fire fighters. II. Summary light most Judgment favorable is to Standard of Review appropriate the when, considered there in is the no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 599-601 (1986). In
discrimination cases, summary judgment should be granted when only one conclusion is clear because such cases often depend on inferences rather than on direct evidence. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Johnson v. Minnesota Summary the
Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991). judgment unresolved is particularly are appropriate, legal, however, rather
Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995).
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III. Discussion Whether the Perla Water Association meets the fifteen-
employee requirement of an "employer" for the purposes of Title VII is primarily a legal issue. This Court must address
whether, based upon the undisputed facts, the consolidation of Perla with the Perla Water Association is appropriate in meeting the fifteen (15) employee requirement of Title VII analysis. A. "Employer" requirements of Title VII. The United States Supreme Court has held that the threshold number of employees for application of Title VII of the Civil Rights Act of 1964 is "an element of plaintiff's claim for
relief" and is not a jurisdictional issue. Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006). As such, a plaintiff must establish
that the defendant qualifies as an "employer" for purposes of Title VII. Oaks v. City of Fairhope, Alabama, 515 F. Supp. 1004, 1035 (S.D. Ala. 1981). To be an "employer" under 42 U.S.C.
§ 2000e(b), a defendant must employ fifteen or more employees. And if a defendant employs less than the required number of employees, no action can be maintained. It is undisputed that the Perla Water Association employs only six (6) persons. Thus, for purposes of Title VII, the
Perla Water Association could be considered an employer only if the persons employed by the Perla Water Association and those employed by Perla were combined.
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Consolidation of entities under Title VII. Generally, a court is limited to the scope of the complaint
filed with the EEOC. E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 257 (1991) (citing General Electric Co. v. Gilbert, 429 U.S. 125, 140-46 (1976)). The Perla Water Association and
Mayor Adams are the only entities or individuals that are named in the EEOC complaint. As a result, it is unclear that Perla Since all reasonable
should be part of the Court's analysis.
inferences should be given to the Plaintiff as the non-moving party, and this is not a jurisdictional issue, Arbaugh, 546 U.S. at 516, this Court will conduct an analysis to determine if Perla should be consolidated with the Perla Water Association for the purpose of calculating the number of employees. The Court has not found any case law which proffers a test for the consolidation of a public entity (such as Perla) with a quasi-private entity (such as the Perla Water Association).
Traditionally, to determine whether two private entities should be consolidated, the Eighth Circuit has used the four National Labor Relations (2) Board common (NLRB) factors: (3) (1) interrelation control of of
labor relations, and (4) common ownership or financial control. Baker v. Stuart Broad. Co. et al., 560 F.2d 389, 392 (8th Cir. 1977); Artis v. Francis Howell N. Band Booster Ass'n, Inc., 161 F.3d 1178, 1184 (8th Cir. 1998); Backus v. Mena Newspapers,
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Inc., 224 F. Supp. 2d 1228, 1232-33 (W.D. Ark. 2002).
factors were designed for use when consolidating private, not public, entities. Lyes v. City of Riviera Beach, Florida, 166 F.3d 1332, 1342 (11th Cir. 1999). As such, they are not well-
suited for this case because the Court addresses the possibility of consolidating a local governmental body and a quasi-private entity. Id. Although the Court will not use the NLRB factors in
this analysis, the core inquiry of the NLRB factors provides guidance for the current controversy. The thrust of the NLRB factors, and of factors used by other courts, seeks to determine "who (or which entity) is in control of the fundamental Lyes, same 166 F.3d aspects at of the This employment fundamental the
relationship...." inquiry is the
consolidation of public entities.
In cases like the one at bar,
two entities should be consolidated when control over employment relationships is jointly exercised, as evidenced by "indicia of control." Oaks, 515 F. Supp. at 1035. "Indicia of control" is
defined as "the authority to hire, transfer, promote, discipline or discharge; the authority to establish work schedules or
direct work assignments; the obligation to pay or the duty to train...." Id. In this case, the Mayor of Perla is the head of the town and of the Perla Water Association. The Mayor exercises
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work schedules and direct work assignments, and pay employees. These are "indicia of control," which evidence a joint exercise of control between Perla and the Perla Water Association.
Considering the facts in the light most favorable to the nonmoving party and the liberal construction accorded to Title VII by Congress for the purpose of eliminating "the inconvenience, unfairness and humiliation of racial discrimination," Baker, 560 F.2d at 391, this Court concludes that employees from Perla and the Perla Water Association should be consolidated for purposes of calculating the number of employees employed by the Perla Water Association. However, even adding these employees does
not give the Defendant the requisite number of employees needed (fifteen) to be considered an "employer" under Title VII. C. "Employees" under Title VII. The term "employee" is defined under 42 U.S.C. § 2000e(f) as an individual who is employed to by an employer, office exclusive in any of any or
political subdivision of any State...." 42 U.S.C. § 2000e(f). This language was intended to exempt certain persons from the definition of "employee:" (1) elected officials; (2) members of the personal staff of elected officials; (3) persons appointed by elected officials to be on the policymaking level; and (4) the "immediate advisers of such elected officials with respect
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to the exercise of the Constitutional or legal powers" of the officials' offices. Howard v. Ward County, 418 F. Supp. 494, 501-502 (D.N.D. 1976); Gregory v. Ashcroft, 501 U.S. 452, 482 (1991); see also Arabian, 499 U.S. at 254-55. Additionally, for purposes of Title VII, volunteers should not be counted as employees. Jacob-Mua v. Veneman, 289 F.3d 517, 520-21 (8th Cir. 2002) (holding that a volunteer researcher of the government was not an "employee" for purposes of Title VII). Uncompensated volunteer firefighters, in particular, fail to
count as employees for purposes of Title VII. Scott v. City of Minco, 393 F. Supp. 2d 1180, 1190-91 (W.D. Okla. 2005); Vickery v. Minooka Volunteer Fire Dept., 990 F. Supp. 995, 998-99 (N.D. Ill. 1997) (holding that no employment relationship exists when there is no payroll for volunteer firefighters); Keller v.
Niskayna Consol. Fire Dist. 1, 51 F. Supp. 2d 223, 232 (N.D.N.Y. 1999) (holding that volunteer firefighters are considered
employees only when they depend upon the significant financial value given them from being a volunteer). Plaintiff Association argues that, once Perla and the Perla than Water
employees for purposes of Title VII.
Plaintiff's count totals
twenty-seven (27); including one (1) policeman, six (6) Perla Water Association employees, one (1) janitor, three (3) persons
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in office administration, six (6) City Council Special Members including the mayor, and over ten (10) volunteer fire fighters. To obtain employed by the correct count of the number of employees consolidated entities of the Perla Water
Association and Perla, we must exclude some of those from the Plaintiff's count. The six (6) City Council Special Members,
including the mayor, should be excluded from the calculation because they are elected officials, and are persons with
Additionally, the ten (10) volunteer
fire fighters should be excluded from the calculation of the number of employees because it has not been shown that they are compensated for their efforts in any way that would enable them to be considered as "employees." Thus, the calculation for the number of employees is: one (1) policeman, six (6) Perla Water Association employees, one (1) janitor, and three (3) persons in office administration for a total of eleven (11). Perla, the Perla Water Even following consolidation with cannot be considered an
"employer" for purposes of Title VII of the Civil Rights Act of 1964 because it fails to meet the fifteen-employee requirement of 42 U.S.C. § 2000e(b). IV. Based on the above, Conclusion Court finds that there is no
genuine issue of material fact regarding whether the Perla Water
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Association is an "employer" for the purposes of Title VII.
Perla Water Association is not an "employer" under Title VII because it does not meet the requirement of fifteen employees, a necessary element of Plaintiff's claim for relief. Accordingly, this Court finds Defendants' Motion for
Summary Judgment (Doc. 21) should be and hereby is GRANTED and Plaintiff's Title VII claims of alleged racial discrimination, hostile work environment, and retaliation are DISMISSED WITH
PREJUDICE with each party to bear its own costs.
declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims. These are dismissed without
prejudice as to his right to pursue them in state court. IT IS SO ORDERED on this 22nd day of July, 2009.
/s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge
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