Fly v. Walsh Construction
Filing
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OPINION AND ORDER granting 27 Walsh's Motion for Summary Judgment. Signed by Judge Joseph S Van Bokkelen on 12/12/11. (smp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
Quinton Fly,
Plaintiff,
v.
Walsh Construction Company,
Defendant.
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Case No. 3:10-CV-126 JVB
OPINION AND ORDER
Pro se Plaintiff Quinton Fly sued Walsh Construction Company alleging racial
discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. In his amended complaint he alleges that, while he
was working on the Blue Chip Expansion Project, Defendant Walsh Construction
Company employees hung a noose over a dumpster where Plaintiff often worked.
Defendant moved for summary judgment arguing that it did not have an employeremployee relationship with Plaintiff because Plaintiff was an employee of a subcontractor
to a subcontractor to Walsh. The Court grants the motion.
A. Standard of Review
A motion for summary judgment must be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Rule 56(c) further
requires the entry of summary judgment, after adequate time for discovery, against a
party “who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial responsibility of informing a
court of the basis for its motion and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact. Celotex, 477 U.S. at 323. If the moving party supports its motion for summary
judgment with affidavits or other materials, it thereby shifts to the non-moving party the
burden of showing that an issue of material fact exists. Keri v. Bd. of Trust. of Purdue
Univ., 458 F.3d 620, 628 (7th Cir. 2006).
Rule 56(e) specifies that once a properly supported motion for summary judgment
is made, “the adverse party’s response, by affidavits or as otherwise provided in this rule,
must set forth specific facts to establish that there is a genuine issue for trial.” Fed. R.
Civ. P. 56(e). In viewing the facts presented on a motion for summary judgment, a court
must construe all facts in a light most favorable to the non-moving party and draw all
legitimate inferences and resolve all doubts in favor of that party. Keri, 458 F.3d at 628.
A court’s role is not to evaluate the weight of the evidence, to judge the credibility of
witnesses, or to determine the truth of the matter, but instead to determine whether there
is a genuine issue of triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249–50
(1986).
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B. Statement of Facts
The relevant facts assumed to be true for the purpose of ruling on Walsh’s Motion
for Summary Judgment are:
In September 2008, Blue Chip Casino in Michigan City, Indiana, hired Walsh
Construction as the general contractor for its expansion project. Walsh subcontracted
some of its duties to various firms, including Kleckner Interior Systems. Kleckner
subsequently subcontracted some of its duties to Eastport Lawn Maintenance and General
Contracting. Eastport employed Plaintiff Quinton Fly, an African-American, to work on
some of the jobs at the Blue Chip site.
Defendant asserts the following: Plaintiff was an employee of Eastport, not
Walsh. Walsh did not hire Plaintiff to work on the expansion project and it did not have
the power to terminate him. It also did not promise Plaintiff employment after the project
ended, nor did it provide Plaintiff with a W-2 while he worked on the project. Walsh did
not pay Plaintiff or set his work hours; Eastport did. Walsh did not provide health
insurance to Plaintiff. Finally, although Walsh required Plaintiff to attend safety
orientation meetings, as was required of all subcontractors, it did not train him to perform
the job.
Plaintiff counters by arguing that “all direct orders, instructions, and assignments
to Eastport Carpenters and all direct orders regarding moving of furniture and other
construction came directly from Defendant and all overtime for Eastport
Laborers . . . was approved and paid by Defendant.” (DE # 30, at 1.) He does not present
evidence that Walsh paid Plaintiff directly instead of paying Eastport who in turn paid
Plaintiff.
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While working on the project, Plaintiff discovered a noose hung over a dumpster
where he worked on the fifteenth floor of the Blue Chip Casino. He reported this to Ryan
Fly, Eastport’s owner/operator who in turn reported it to Gordon Barker, General
Manager of Walsh Construction and Rich Corbett, Project Manager of Blue Chip. The
noose Plaintiff found was one of five found at the Blue Chip site. Barker told Ryan Fly
not to worry about the nooses and to keep working.
C. Discussion
Under § 703(a)(1) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(1)), it
is unlawful for any employer “to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race.” Plaintiff must be Walsh’s employee to have a claim for racial
discrimination against it. Cf. Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 492
(7th Cir. 1996) (noting that plaintiffs do not have a Title VII cause of action if they are
not employees of the defendant). According to Knight v. United Farm Bureau Mutual
Insurance Co. a court must examine the following five factors to determine whether
Plaintiff is an employee of Walsh: 1) the putative employer’s control and supervision of
the worker; 2) the kind of occupation and nature of skill required, including whether
skills are obtained in the workplace; 3) responsibility for the costs of operation, such as
equipment, supplies, fees, licenses, workplace, and maintenance of operations; 4) the
method and form of payment of benefits, and; 5) length of job commitment and
expectations. 950 F.2d 377, 378–79 (7th Cir. 1991).
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The Court concludes that Plaintiff was not a direct employee of Walsh. Rather,
Plaintiff was, as he himself concedes, the employee of Eastport, which was a
subcontractor to Kleckner. (Fly Resp. at 1.) Kleckner was a subcontractor to Walsh.
Plaintiff’s employment relationship with Eastport instead of Walsh is enough for this
Court to grant summary judgment in favor of Walsh because a plaintiff must be the
defendant’s employee in order to bring a Title VII claim. Cf. Alexander, 101 F.3d at 492
(noting that plaintiffs do not have a Title VII cause of action if they were not the
defendant’s employees).
But summary judgment is warranted even if the Court looks beyond Plaintiff’s
concession. The record is void as to any employer-employee relationship between
Plaintiff and Walsh. Eastport contracted with Kleckner to move furniture, and Plaintiff
does not provide any evidence of Walsh’s control over his employment activities. Cf.
Worth v. Tyer, 276 F.3d 249, 261 (7th Cir. 2001) (an employer-employee relationship “is
likely to exist” if the defendant controls “not only the result to be achieved, but also the
details by which that result is achieved); Knight v. United Farm Bureau Mut. Ins. Co.,
950 F.2d 377, 378–79 (7th Cir. 1991) (company’s degree of control is the most important
factor in evaluating the employer-employee relationship). Plaintiff’s supervisor at
Eastport, Ryan Fly asserted in his affidavit that Walsh assigned duties to Eastport
employees and supervised them. (Ryan Fly Aff. ¶ 9.) Ryan Fly also asserted that he had
to report overtime hours to Walsh so his employees would be paid. (Id. ¶ 10.)
However, this evidence is not sufficient to defeat a motion for summary judgment
because it does not establish the existence of an employer-employee relationship. Ryan
Fly’s affidavit does not explain the specific nature of Walsh’s supervision or control.
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Instead, Ryan Fly’s affidavit merely states the following: “My carpenters worked under
the authority of Walsh Construction on the project. They assign duties; supervise them
while on the job site. My laborers were also involved with Walsh Construction on the
project to move the furniture on the job site in which I had to call and report to Walsh the
extra hours they worked to receive payment for Plaintiff, Quinton Fly.” (Id. at ¶¶ 9–10.)
To the extent Plaintiff did work overtime, there is no evidence that Walsh paid Plaintiff
directly rather than Eastport, which in turn paid Plaintiff. As for Ryan Fly’s statement
that Walsh assigned duties and supervised his employees, the affidavit does not explain
the nature, frequency, or extent of Walsh’s purported supervision nor does it explain the
scope of Walsh’s alleged authority to assign duties. Although the Court must draw all
reasonable inferences in Plaintiff’s favor, in light of the undisputed evidence provided by
Walsh, Ryan Fly’s assertion is too vague to create a reasonable inference that an
employer-employee relationship existed between Plaintiff and Walsh. Cf. Matsushita
Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (requiring plaintiffs
to offer specific facts showing a genuine issue of material fact when opposing a motion
for summary judgment).
Plaintiff also cannot establish other economic factors to show that Walsh was his
employer such as the method of payment and benefits, and the authority to terminate
Plaintiff. Plaintiff was not on Walsh’s payroll; instead, Eastport paid Plaintiff. Cf. GKN
Co. v. Magness, 744 N.E.2d 397, 405 (Ind. 2001) (explaining that when a general
contractor pays a subcontractor and the subcontractor pays the plaintiff, this weighs
against an employer-employee relationship between the plaintiff and the general
contractor). Walsh did not provide Plaintiff with a W-2, health insurance, job training, or
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promises of employment. Walsh also did not have authority to terminate Plaintiff’s
employment with Eastport. Cf. Knight, 950 F.2d at 378 (explaining that a court must
look at these factors when evaluating a possible employer-employee relationship). These
facts, which Plaintiff did not dispute in his response brief, demonstrate that Plaintiff was
not Walsh’s employee.
D. Conclusion
For the foregoing reasons, Walsh’s motion for summary judgment is granted.
SO ORDERED on December 12, 2011.
S/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
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