Bourne v. V.C. Enterprise/Kirby Home Cleaning System
MEMORANDUM - Signed by Judge Gregory M. Sleet on 1/19/16. (rwc)
IN THE UNITED STATES DISTRlCT COURT
FOR THE DISTRlCT OF DELAWARE
) Civ. Action No. 14-1459-GMS
V.c. ENTERPRlSE/KIRBY HOME
The plaintiff, Carole Bourne ("Bourne"), who proceeds pro se and has been granted leave
to proceed without prepayment of fees, filed this lawsuit pursuant to 42 U.S.C. §§ 2000e, et seq.,
alleging employment discrimination by reason of sex. Before the court are several motions filed
by the parties including cross-motions for summary judgment. For the reasons that follow, the
court will grant the motions for summary judgment filed by The Kirby Company.
PROCEDURAL AND FACTUAL BACKGROUND
Bourne presented her discrimination complaint to the Delaware Department of Labor
("DDOL") on June 16,2014, and, on July 1,2014, perfected a dual charge of discrimination, No.
BOU061614117C-2014-00506, with the DDOL and U.S. Equal Employment Opportunity
Commission (,'EEOC"). (D.I. 2 ex.) The charge of discrimination asserts discrimination based
upon sex and disability, and continuing adverse employment actions that began on May 23,2014
and continued through June 10,2014, when Bourne was discharged from her employment. (D.!.
The charge of discrimination names V.C. EnterpriselKirby Home Cleaning Systems as
Bourne's employer. Bourne was employed as a telemarketer from November 15,2013 until June
10, 2014. The charge asserts that Bourne had a known disability and was able to perform the
essential functions of her position with, or without, a reasonable accommodation. The charge
asserts that owner Vaughn Colter ("Colter") tricked Bourne into having sex with him on one
occasion and, prior to that, had sexually harassed her on several occasions. The charge states that
Colter disciplined, demoted and discharged Bourne on June 10,2014 for failure to meet
productivity goals, but Bourne believes that Colter discharged her because he did not want his
fiance or employees to learn of their sexual relationship. The charge states that v.c. Enterprise!
Kirby Home Cleaning Systems also discriminated against Bourne because of her disability. I
Colter, the owner ofVC Enterprises, responded to the charge and stated that the allegations were
absurd and slandered his name and business. (D.I. 2 ex.)
On July 23,2014, the DDOL issued its finding and recommended dismissal of the charge
unless additional information was received that would warrant further investigation. (Id.) The
EEOC reviewed the findings of the DDOL, as well as additional material submitted by Bourne,
and adopted the DDOL's findings, dismissed the charges as there was no probable cause to
believe that the law had been violated, and issued a notice of suit rights on October 14,2014.
(Id) Bourne initiated this lawsuit on December 3, 2014. (D.I. 2.)
The complaint alleges that Bourne was subjected to employment discrimination at
Colter's place of business in Wilmington, Delaware,2 when Bourne was not promoted and her
IThe disability is not identified.
2The address is listed as 3700A, Old Capitol Trail, Wilmington, Delaware.
employment was terminated. Disability discrimination is not raised in the complaint, and it
appears that Bourne has abandoned the claim.
On January 26, 2015, the court entered a service order for Bourne to complete and
provide to the Clerk of Court an original USM-285 form for the defendant. (D.I. 6.) Bourne
named one defendant in the caption of the complaint - V.c. Enterprise/Kirby Home Cleaning
Systems, and she submitted a USM-285 form for the service ofV.C. Enterprise/Kirby Home
Cleaning System (vacuum cleaner). (D.I. 2, 7, 10.) The USM-285 form contained two
addresses: 3700A Old Capitol Trail, Wilmington, Delaware, and corporate office address 1920
E. 114th Street, Cleveland, Ohio. (D.I. 7, 10.)
Service packets were mailed to both addresses on March 18,2015. The service packet
mailed to the Wilmington, Delaware address was returned on April 6,2015 with the notation,
"package returned by post office 'no such address"'. (D.I. 7.) The service packet mailed to the
corporate office address in Cleveland, Ohio, resulted in an executed return of waiver of service of
summons signed by David Lamb C'Lamb"), vice-president of Scott Fetzer Company ("Scott
Fetzer") for Kirby, a division of Scott Fetzer. (D.I. 8, 10.)
On April 27, 2015, counsel for The Kirby Company contacted Bourne and advised her
that The Kirby Company had no involvement with Bourne's employment by VC Enterprises.
(D.I. 9.) Bourne was told that VC Enterprises was a local independent distributor of The Kirby
Company's products, that The Kirby Company did not own any part ofVC Enterprises, and that
it had no involvement in the hiring or firing decisions made by VC Enterprises. (Id) The Kirby
Company believed that the claim against it had been brought in error and asked Bourne to
dismiss it. (/d) Bourne declined to dismiss the claim against The Kirby Company stating that
"[e]ven though the defendant is a local independent distributor for Kirby, he however is selling
Kirby product for both profit of the Kirby Company and himself." (Id.)
Lamb's affidavit states that The Kirby Company is an unincorporated division of The
Scott Fetzer Company. (D.I. 14, ~ 1.) There is no entity named Kirby Home Cleaning System
that is affiliated with The Kirby Company or The Scott Fetzer Company. (Id. at ~ 2.) VC
Enterprises is one, of many, local, independent distributors of The Kirby Company's vacuums.
(Id. at ~ 4.) The Kirby Company has no ownership interest in VC Enterprises and its relationship
with VC Enterprises is solely contractual. (Id.) Lamb states that The Kirby Company has never
had any involvement in employment decisions made by VC Enterprises and never participated in
any way in the hiring, firing, or promotion decisions made by VC Enterprises with respect to its
employees. (Id. at ~ 5.)
Lamb states that until it received service, The Kirby Company had never heard of Bourne,
never communicated or corresponded with her, never employed her, had no knowledge regarding
her employment by VC Enterprises, and had no right to and did not control the manner and
means by which Bourne executed or failed to execute her job responsibilities. (Id. at ~ 6.) Lamb
states that Bourne has never been on The Kirby Company's payroll, The Kirby Company has
never compensated Bourne for her work for VC Enterprises or anything else, and it had no
involvement in any decisions that may have been made by VC Enterprises regarding Bourne's
employment by VC Enterprises. (ld.)
Bourne had not heard of Scott Fetzer until she was served with discovery. (D.I. 35, ex. A
resp. 5.) Bourne's pay stubs make no reference to VC Enterprises, The Kirby Company, or Scott
Fetzer, but are titled "dealer profit form." (D.I. 35, ex. A.) Bourne's paychecks were signed by
Vanessa Colter ("V. Colter") and Colter and they were the source of the compensation Bourne
received as a telemarketer. (Id. at exs. B, C.) Bourne's superior was Colter. (Id at ex. C.) She
and Colter had a verbal agreement that Bourne was responsible for marketing Kirby home
cleaning systems using the phone. (Id) Bourne provided copies of text messages she indicates
were from Colter. (D.!. 30.)
At college, Bourne learned of criteria used in deciding whether a worker is categorized as
an independent contractor, and she would not admit that she was not an employee of Kirby. (D.I.
35, ex. B.) Bourne stated that she did not believe that Kirby would allow an employee ofVC
Enterprises to make thousands of calls using its name and not have a say in what is relayed to its
customers. (D.!. 35, ex. B.) According to Bourne, her duties included daily communication with
Kirby customers because every call was made to Kirby customers, and she introduced the
customers to the Kirby cleaning system by persuading customers to schedule appointments for
the purchase of the system. (Id) The name Kirby home cleaning system was used on every call
made from VC Enterprises' office and each call is controlled by scripts. (Id. at ex. C.)
ST ANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). A "material fact" is one that "could affect the outcome" of the proceeding. See
Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). The moving party bears the burden of
demonstrating the absence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 n.l0 (1986). The court will "draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility determinations or
weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
If the moving party is able to demonstrate an absence of disputed material facts, the
nonmoving party then "must come forward with 'specific facts showing that there is a genuine
issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence
of some evidence in support of the nonmoving party, however, will not be sufficient for denial of
a motion for summary judgment. Id. Rather, the nonmoving party must present enough evidence
to enable a jury to reasonably find for it on that issue. Id. If the nonmoving party fails to make a
sufficient showing on an essential element of its case with respect to which it has the burden of
proof, the moving party is entitled to judgment as a matter oflaw. See Celotex Corp. v. Catrett,
477 U.S. 317,322 (1986). The same standards and burdens apply on cross-motions for summary
judgment. See Appelmans v. City o/Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
With respect to summary judgment in a discrimination case, the court's role is "to
determine whether, upon reviewing all the facts and inferences to be drawn therefrom in the light
most favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of
material fact as to whether the employer intentionally discriminated against the plaintiff."
Hankins v. Temple Univ., 829 F.2d 437,440 (3d Cir. 1987).
The Kirby Company moves for summary judgment on the grounds that it was never
Bourne's employer and had no involvement with Bourne's employment by VC Enterprises or
otherwise. (D.1. 13,34.) Bourne opposes the motion on the grounds that The Kirby Company
employed her via a contractual agreement through its independent distributor. (D.1. 37.) Bourne
also appears to move for summary judgment on the issue of damages she allegedly suffered
through the negligence of The Kirby Company and VC Enterprises. (D.I. 38.) The Kirby
Company moves to strike the motion as untimely. (D.I. 40.)
The complaint named one defendant, V.C. Enterprise/Kirby Home Cleaning System. The
Kirby Company was served at its corporate address, provided by Bourne. Bourne also provided
the address for VC Enterprises in Wilmington, Delaware and service was attempted upon V.c.
Enterprise/Kirby Home Cleaning System there, albeit unsuccessfully. Bourne did not seek
issuance of summons after the unsuccessful attempt at the Wilmington, Delaware address. In
addition, it appears from her pleadings that her position is that The Kirby Company is her
employer. Nevertheless, because Bourne appears pro se, in an abundance of caution, and to the
extent that Bourne intended to name VC Enterprises as the defendant employer, Bourne will be
ordered to show cause why VC Enterprises should not be dismissed as a defendant for failure to
serve process within 120 days of filing the complaint, pursuant to Fed. R. Civ. P. 4(m).
Title VII - Employer
At issue is whether The Kirby Company was Bourne's employer within the meaning of
Title VII. Bourne alleges that her employer discriminated against her on the basis of sex. Title
VII regulates the relationship between employers and employees. It authorizes a cause of action
only against employers, employment agencies, labor organizations, and training programs. See
42 U.S.c. § 2000e-2.
When a statute containing the term "employee" does not define the term, or defines it in a
completely circular fashion, the court should apply the common law definition. Nationwide Mut.
Ins. Co. v. Darden, 503 U.S. 318, 322-24 (1992). In Darden,3 the Supreme Court set forth
relevant factors to determine (in the ERISA context) whether a hired party is an employee under
the general common law of agency and considers the hiring party's right to control the manner
and means by which the product is accomplished using the following factors: (1) the skill
required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the
duration of the relationship between the parties; (5) whether the hiring party has the right to
assign additional projects to the hired party; (6) the extent of the hired party's discretion over
when and how long to work; (7) the method of payment; (8) the hired party's role in hiring and
paying assistants; (9) whether the work is part of the regular business of the hiring party;
(10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) the
tax treatment of the hired party. See Darden, 503 U.S. at 323-24 (citing Community for Creative
Non-Violence v. Reid, 490 U.S. 730, 740 (1989)).
The essence of the Darden test is whether the hiring party has the "right to control the
manner and means by which the product is accomplished." Plaso v. IJKG, LLC, 553 F. App'x
199,204 (3d Cir. 2014) (unpublished) (quoting Darden, 503 U.S. at 323). The Third Circuit has
held that courts applying Darden may focus on three indicia of control: (1) which entity paid
plaintiff; (2) who hired and fired plaintiff; and (3) who "had control over (plaintiffs] daily
employment activities." Id. (citing Covington v. International Ass 'n ofApproved Basketball
3Darden applies to Title VII cases. See Faush v. Tuesday Morning, Inc., 808 F.3d 208,
213 (3d Cir. 2015) ("as a doctrinal matter, (] it us clear that the Darden test applies to Title VII
Officials, 710 F.3d 114, 119 (3d Cir. 2013» (citation and internal quotations omitted). The court
looks to these three factors in tum.
With regard to the first factor, nothing in the record suggests that The Kirby Company
paid Bourne. The record reflects that Bourne has never been on The Kirby Company's payroll
and The Kirby Company never compensated Bourne for her work for VC Enterprises or anything
else. In addition, Bourne's pay stubs make no reference to VC Enterprises, The Kirby Company,
or Scott Fetzer and her paychecks (the source of compensation she received as a telemarketer)
were signed by V. Colter and Colter (the owner/distributor ofVC Enterprises). Bourne states
that she cannot admit that she was never on The Kirby Company's payroll, and speculates that
The Kirby Company attempts to avoid liability by classifying employees as independent
contractors. (D.l. 35, ex. B, resp. 7.) It is clear from the evidence of record, that the Kirby
Company did not pay Bourne's salary, and Bourne's speculation does not raise a genuine issue of
The second factor, who hired and fired Bourne, favors The Kirby Company. Bourne does
not indicate who hired her, but she states that she had an oral contract with Colter that Bourne
was responsible for marketing the Kirby home cleaning system using the phone and that Colter
was her superior. Colter'S statement to the DDOL makes clear that he was the individual who
fired Bourne "due to unqualified appointment settings, appointment quotas not being met, and
towards the end, she just simply had too many excuses why she couldn't work certain hours."
(D.l. 2, ex.) In addition, Lamb states that The Kirby Company had no involvement in the
employment decisions made by VC Enterprises and did not participate in the hiring, firing, or
promotion decisions made by VC Enterprises with respect to its employees and did not know
who Bourne was until it was served with process. Nothing in the record suggests that The Kirby
Company hired Bourne or could terminate Bourne's employment as a telemarketer at VC
With regard to the third factor, the evidence of record is that VC Enterprises, not The
Kirby Company, had control over Bourne's daily employment activities. Bourne identifies her
superior as Colter. Although most text messages in the record are of a personal nature, at least
one between Bourne and Colter indicates that Colter had control over Bourne's daily activities.
Therein, Colter and Bourne discuss that Bourne needed a ride to work and she asked Colter if he
or anyone else could pick her up or should she "just call off." CD.!. 30 at 2.) In addition, Colter's
response to the DDOL indicates that he monitored Bourn's work schedule noting that she had
"no shows" for work. Conversely, the record reflects that The Kirby Company had never heard
of Bourne, never communicated or corresponded with her, and had no knowledge regarding her
employment by VC Enterprises.
Bourne points to a pin she received as a top telemarketer for excelling in scheduling
Kirby home cleaning system appointments CD.!. 35, ex. A, resp. 4), states that she was unaware
that The Kirby Company did not control the manner and means by which she performed her job
responsibilities as an employee of VC Enterprises (id. at ex. B, resp. 5), and does not believe that
The Kirby Company would allow a VC Enterprises employee to conduct telemarketing using the
Kirby name without having input on what is said to Kirby customers (id.). Even construing the
facts in the light most favorable to Bourne, they nonetheless fail to create a genuine issue of
material fact as to whether The Kirby Company had control over Bourne's daily activities.
In light of the foregoing, the court finds that the evidence of record does not support a
conclusion that Bourne was employed by The Kirby Company.
Because Bourne proceeds pro se, the court also considers whether The Kirby Company
was Bourne's joint employer under Title VII. A joint employment relationship exists under Title
VII when "two entities exercise significant control over the same employees." Graves v. Lowery,
117 F.3d 723, 727 (3d Cir. 1997) (citations omitted). Whether an entity exercises significant
control over an employee along with another entity hinges on whether that entity has:
(1) "authority to hire and fire employees, promulgate work rules and assignments, and set
conditions of employment, including compensation, benefits, and hours;" (2) "day-to-day
supervision of employees, including employee discipline;" and (3) "control of employee records,
including payroll, insurance, taxes and the like." Piasa, 553 F. App'x at 204-05. A review of the
applicable law and the evidence of record leads the court to conclude that there is no genuine
issue of material fact as to whether The Kirby Company was Bourne's joint employer.
As discussed above, and as to the first prong, no genuine issue of material fact suggests
that The Kirby Company had "authority to hire and fire [Bourne], promulgate work rules and
assignments, and set conditions of employment, including compensation, benefits, and hours."
Id. As already discussed, Bourne's paychecks were signed by the Colters, and Colter, the owner
ofVC Enterprises, monitored her work schedule, and had the sole authority to fire Bourne.
As to the second prong, nothing in the record suggests that the Kirby Company exercised
significant "day-to-day supervision of [Bourne], including employee discipline." Id. at 205. To
the contrary, Bourne's supervisor was Colter, the owner ofVC Enterprises, and he stated that he
both congratulated and reprimanded Bourne with regard to her employment activities. Colter's
status as the only person to fonnally discipline Bourne provides further evidence that VC
Enterprises exercised significant day-to-day supervision of Bourne.
With respect to the third prong of the joint employer test, the court concludes that there is
no genuine issue of material fact as to whether The Kirby Company had "control of employee
records, including payroll, insurance, taxes and the like." Jd. There is a paucity of evidence as to
the third prong. Bourne, however, states that end of shift documentation (such as daily
appointment slips, callback, and time sheets) were kept in folders at VC Enterprises (D.!. 35, ex.
Cat resp. I) and that she did not receive any tax fonns from V.C. Enterprise/Kirby Home
Cleaning System. The record does not contain any evidence that Bourne's employee records
were maintained by The Kirby Company. After careful consideration, the court finds that no
reasonable jury cold conclude that The Kirby Company was Bourne's joint employer.
Finally, the court notes that Bourne's reliance upon Read v. Scott Fetzer Co., 990 S.W.2d
732 (Tex. 1998) is misplaced. In Read (a negligence action brought against Scott Fetzer by a
customer who was assaulted in her home by a Kirby salesperson), the Supreme Court of Texas
held that the defendant, by retaining control over vacuum cleaner sales by requiring in-home
demonstrations, had a duty to exercise its control reasonably. In addition, Read recognized that a
dealer was an independent contractor and not an employee of Kirby. See Read, 990 S. W.2d at
735; see also Johnson v. Scott Fetzer Co., 124 S.W.3d 257,263-64 (Tex. Ct. App. 2003) (finding
that manufacturer was not employer of salesperson under the Texas Commission Human Rights
Act (modeled after Title VII of the Civil Rights Act of 1964) for purposes of detennining
whether manufacturer was liable for area distributor's sexual harassment of salesperson).
In light of the forgoing, the court concludes that no reasonable jury could find that The
Kirby Company was Bourne's employer or that it discriminated against Bourne in violation of
For the above reasons, to the extent that VC Enterprises is a named defendant, Bourne
will be ordered to show cause why VC Enterprises should not be dismissed for failure to serve
process within 120 days of filing the complaint, pursuant to Fed. R. Civ. P. 4(m). In addition, the
court will: (1) grant The Kirby Company's motions for summary judgment (OJ. 13,34) and will
deny Bourne's motion to hear or award damages (for summary judgment) (0.1.38); (2) grant
Bourne's motion to submit documents as evidence (0.1. 19); (3) deny Bourne's motion
requesting subpoena (0.1.20), motion for a lie detector test (0.1. 24), and motion to produce (0.1.
25); (4) deny The Kirby Company's motion to strike Bourne's motion for summary judgment
(0.1.40); and (5) grant Bourne's motion for leave to file the motion for summary judgment out
of time to the extent that the motion (0.1.38) is deemed timely filed and will deny it in all other
respects (0.1. 41).
An appropriate order will be issued.
_ ~ ~
Wilmington, De aware
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