EILER v. JOHNSON, et al.

Filing 143

ENTRY ON MOTION FOR SUMMARY JUDGMENT - This cause is before the Court on the Defendant's motion for summary judgment on the only claim that remains in this case (Dkt. No. 136 ). The Plaintiff is proceeding pro se in this case, and the Defend ant served her with the notice required by Local Rule 56-1(k). Dkt. No. 138 . Service was made by both United States Mail and email. The Plaintiff has not filed a response to the motion for summary judgment and the time for doing so has expired. The Court, being duly advised, GRANTS the Defendant's motion for the reasons set forth in this Entry. For the reasons set forth above, the Defendant's motion for summary judgment (Dkt. No. 136 ) is GRANTED. Because this ruling resolves the last remaining claim in Eiler's Amended Complaint, final judgment will now be entered in this case. (See Entry). Signed by Judge William T. Lawrence on 10/15/2018. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ERIN EILER,
Plaintiff,
vs.
KIRSTJEN NIELSEN,
Defendant.

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ENTRY ON MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on the Defendant’s motion for summary judgment on the
only claim that remains in this case (Dkt. No. 136). The Plaintiff is proceeding pro se in this
case, and the Defendant served her with the notice required by Local Rule 56-1(k). Dkt. No.
138. Service was made by both United States Mail and email. The Plaintiff has not filed a
response to the motion for summary judgment and the time for doing so has expired. The Court,
being duly advised, GRANTS the Defendant’s motion for the reasons set forth below.
I. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “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.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed, and all reasonable
inferences must be drawn in the non-movant’s favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th
Cir. 2009) (“We view the record in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor.”). However, a party who bears the burden of proof
on a particular issue may not rest on her pleadings, but must show what evidence she has that

there is a genuine issue of material fact that requires trial. Johnson v. Cambridge Indus., Inc.,
325 F.3d 892, 901 (7th Cir. 2003). Finally, the non-moving party bears the burden of
specifically identifying the relevant evidence of record, and “the court is not required to scour the
record in search of evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co.,
242 F.3d 713, 723 (7th Cir. 2001).
II. FACTS
Because Plaintiff Erin Eiler did not file a response to the instant motion, the properly
supported facts asserted by the Defendant are taken as true. See Local Rule 56-1(f). Those facts
follow.
In 2009, Plaintiff Erin Eiler applied to be a security screener at the Sioux Falls Regional
Airport. At that time, security at the airport was provided by Covenant Aviation Security, Ltd.
(“CAS”), pursuant to a contract between CAS and the Transportation Security Administration
(“TSA”) that was entered into as part of the TSA’s Screening Partnership Program.
Employees hired by CAS to perform the screening services contemplated by the contract
were not employees of the TSA or the federal government; rather, they were employees of CAS.
CAS was responsible for the recruiting and hiring of security screeners who worked under the
contract and was required by the contract to ensure that “all persons designated to be deployed as
screeners meet all statutory requirements, TSA specified requirements, and suitability standards
for employment.” Dkt. No. 136-3 at 3. The TSA did not participate in the hiring process
administered by CAS. CAS retained the authority to discipline and terminate its employees who
served as security screeners at the Sioux Falls Regional Airport, without involvement from the
TSA.

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Additionally, CAS was solely responsible for all employee call-ins, vacation requests, sick leave
issues, and other attendance-related matters for its employees. CAS, not the TSA, provided pay
and benefits to contract screeners like Eiler and issued wages to, and collected all applicable
federal, state, local, and Social Security taxes from, its employees. The TSA had no role in any
payroll-related matters for the CAS employees providing services under the contract.
Under the contract, CAS was required to provide on-site supervision, evaluation, and
discipline of all employees at all times that a security screening location was staffed. CAS also
conducted the on-site training of the screeners it employed, although the TSA developed a
national screener assessment and training curricula and provided all required screener technical
training curricula to CAS. Furthermore, in areas other than technical screening performance
requirements, CAS bore responsibility for designing, developing, and implementing training for
its screeners and supervisors. In addition, CAS was responsible for the costs of its operations,
including the costs of employees, employee assessment, credentialing, travel, operational
consumables, uniforms, office equipment, supplies, as well as scheduling and maintenance of
operations.
On July 13, 2009, Eiler received a contingent offer from CAS for a position as a security
screener at the Sioux Falls Regional Airport. The offer included the following:
You are also free to terminate your employment with CAS at any time. Any
employment relationship with CAS is considered “at-will”—you or CAS can
terminate your employment with or without cause. CAS also reserves the right to
change the conditions of your employment at-will. . . . Please also be advised that
the company may, at the company’s discretion with or without notice, add, delete
or modify the requirements of this position. . . . Covenant Aviation Security, Ltd.
sets very high standards for the selection of the members of the Covenant
Aviation Security team and we feel you will be a true asset to our team.
Dkt. No. 136-4 at ¶ 5. Eiler accepted the contingent offer on July 13, 2009. Subsequently, Eiler
received an additional letter from CAS dated July 31, 2009, confirming that she had
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“successfully completed the pre-screening/assessment process for the position of Checkpoint
Screener with Covenant Aviation Security, LLC (CAS)” and instructing her to report to CAS
Operations, with a start date of July 31, 2009. The letter further provided that CAS would pay
Eiler an hourly rate of $12.00 for her training period and that, upon successful completion of her
training, her hourly rate would be $13.05. Regarding benefits, the letter stated that, effective on
the first day of the month following ninety days of employment, Eiler would be eligible to
participate in all employee benefit plans and programs that CAS offered to other employees at
her level. It further advised Eiler that CAS was an “at-will company” and that “as a CAS
employee, [Eiler would] be subject to periodic background checks, random drug screenings, and
annual job recertification.” The letter is signed by Betsy Hunhoff, the Recruiting Coordinator for
CAS. Eiler accepted CAS’s offer on July 31, 2009.
Eiler was employed by CAS as a security screener at the Sioux Falls Regional Airport for
only 28 days. During her 28 days as a screener at the Sioux Falls Airport, Eiler received two
paychecks from CAS. Eiler’s job description required—among other duties and qualifications—
that she perform baggage screening and have the ability to lift up to seventy pounds. She was
terminated on August 28, 2009, because she was “[i]neligible for employment” as she was “not
willing to work in baggage.” Dkt. No. 136-4 at ¶ 8. The Covenant Personnel Action Notice is
signed by Covenant’s Recruiting Coordinator, Ms. Hunhoff. The Covenant Separation Checklist
for Eiler denotes her supervisor as Bill Boyd and is again signed by Ms. Hunhoff.
III. DISCUSSION
The only claim remaining in this case is Eiler’s claim that in 2009 she was terminated
from her job as a screener at the Sioux Falls Regional Airport because of her color, national
origin, race, religion, and sex in violation of Title VII. The remaining Defendant in this case is

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Kirstjen Nielsen who, as Secretary of Homeland Security, is the proper Defendant in a Title VII
case brought by a person asserting a Title VII claim against the TSA. The Defendant now moves
for summary judgment on the ground that Eiler was not an employee of the TSA, but rather was
an employee of CAS, and therefore Eiler cannot assert a Title VII claim against the Defendant.
The Court agrees.
Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “to
fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e–2(a)(1). Title VII defines “employer” as “a
person engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar weeks in the
current or preceding calendar year, and any agent of such a person,” 42 U.S.C. §
2000e(b), while an “employee” is defined broadly, as “an individual employed by
an employer.” 42 U.S.C. § 2000e(f).
Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 701 (7th Cir. 2015). Thus, in order for her Title
VII claim against the Defendant to survive summary judgment, Eiler must be able to point to
evidence sufficient to prove the existence of an employer-employee relationship between her and
the TSA. As the Defendant recognizes, the fact that Eiler clearly was an employee of CAS is
not, by itself, dispositive, as “[i]t is also well established in this circuit that a plaintiff can, under
certain limited circumstances, bring a claim against a defendant who is not [her] direct
employer.” Id. (citing EEOC v. Illinois, 69 F.3d 167, 169 (7th Cir. 1995)).
In order to determine whether the TSA was an employer of Eiler for Title VII purposes,
the Court must apply the following five-factor “economic realities” test:
(1) the extent of the employer’s control and supervision over the worker,
including directions on scheduling and performance of work, (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) method
and form of payment and benefits, and (5) length of job commitment and/or
expectations.
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Frey v. Coleman, 903 F.3d 671, 676 (7th Cir. 2018) (reiterating applicability of test set forth in
Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378-79 (7th Cir. 1991)). “Of these
factors, ‘the employer’s right to control is the most important,’ and a court must give it the most
weight.” Id. (quoting Knight, 950 F.2d at 378).
Eiler has not responded to the motion for summary judgment and therefore has not
pointed to any evidence that any of these factors support a finding that she was an employee of
the TSA. The Court finds that the facts of record pointed to by the Defendant and set forth above
demonstrate the contrary. CAS, not the TSA, was responsible for supervising Eiler’s work
performance and schedule. CAS was responsible for training Eiler, with the TSA’s only role
being the development of national training and assessment with regard to the technical screening
aspect of the job. CAS was responsible for all of the costs of its operations at the airport, and
CAS was the source of all pay and benefits to which Eiler was entitled. The potential duration of
Eiler’s position depended upon CAS’s contract with the TSA; there is no indication that Eiler’s
position would have continued if CAS’s contract with the TSA did not. Accordingly, there is
simply no basis upon which a trier of fact could determine that the TSA was Eiler’s employer
under Title VII, and the Defendant is entitled to summary judgment on Eiler’s claim.1
IV. CONCLUSION
For the reasons set forth above, the Defendant’s motion for summary judgment (Dkt. No.
136) is GRANTED. Because this ruling resolves the last remaining claim in Eiler’s Amended
Complaint, final judgment will now be entered in this case.

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In light of this ruling, the Court need not consider the Defendant’s alternative argument
that Eiler’s claim is time-barred.
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SO ORDERED: 10/15/18

Copies to Plaintiff Erin Eiler and to all counsel of record via electronic notification

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