Brown v. Outback Steakhouse

Filing 26

MEMORANDUM OPINION & ORDER: It is ordered that 16 MOTION for Summary Judgment with respect to Pla's claims under KY Civil Rights Act is GRANTED. Signed by Judge Joseph M. Hood on 9/9/2015.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

ALVIN BROWN,
Plaintiff,
v.
OUTBACK STEAKHOUSE,
Defendant.

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Civil Case No.
5:14-cv-372-JMH
MEMORANDUM OPINION AND ORDER

***
This matter is before the Court upon Defendant’s motion for
partial summary judgment, [DE 16].

Plaintiff has filed a response

in opposition to Defendant’s motion, [DE 22], and Defendant has
filed a reply, [DE 23].

The Court, having considered the parties’

arguments and being otherwise sufficiently advised, will grant
Defendant’s motion for the following reasons.
I.
During the relevant time period, Plaintiff was the owner and
operator of Alpha Cleaning Services (“Alpha”). Alpha provided
cleaning services at Defendant’s Outback Steakhouse Restaurants in
Fayette and Madison County, Kentucky, beginning in 1992 and ending
in 2013.

Plaintiff alleges the parties entered into a contract

under which Alpha was to provide cleaning services to Defendant
but, with respect to the parties’ relationship, “there is no

question that the Plaintiff is an independent contractor with
Outback.”

[DE 22, at Page ID# 120, Plaintiff’s Resp.]

Plaintiff reports that in the course of Alpha’s business, he
employed some workers who were Hispanic.
“Partner”

Peter

Dykal

referred

to

He alleges that Outback

the

Hispanic

workers

as

“worthless,” called the white employees “poor white trash,” and
referred to Plaintiff as “Fat Al.”

In September 2012, Plaintiff

complained about Dykal’s comments to Lynn Brown, Outback’s Vice
President of Operations. Plaintiff contends that after he reported
the

“offensive

comments,”

Alpha’s services.

Defendant

began

to

complain

about

Plaintiff’s contract for cleaning services was

terminated in April 2013.
Defendant moves for summary judgment on Plaintiff’s claims of
discrimination

arguing

that,

as

an

independent

contractor,

Plaintiff’s claims under the Kentucky Civil Rights Act cannot go
forward.
II.
Under Rule 56(a), summary judgment is proper “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.”
Civ. P. 56(a).

Fed. R.

In deciding a motion for summary judgment, the

factual evidence and all reasonable inferences must be construed
in the light most favorable to the nonmoving party.

2

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Summers v. Leis,
368 F.3d 881, 885 (6th Cir. 2004).
This Court’s function on a summary judgment motion is not to
weigh the evidence, but to decide whether there are genuine issues
of material fact for trial.

Anderson, 477 U.S. at 249; Multimedia

2000, Inc. v. Attard, 374 F.3d 377, 380 (6th Cir. 2004). A material
fact is one that may affect the outcome of the issue at trial, as
determined by substantive law.

Anderson, 477 U.S. at 242.

A

genuine dispute exists on a material fact and, thus, summary
judgment is improper if the evidence shows “that a reasonable jury
could return a verdict for the nonmoving party.”

Id. at 248;

Summers, 368 F.3d at 885.
III.
In

his

Complaint

and

throughout

the

briefing,

Plaintiff

asserts repeatedly that he acted as an independent contractor
during the time in question.

In distinguishing an independent

contractor from an employee, courts rely on several factors,
including:
the hiring party’s right to control the manner and means
by which the product is accomplished; the skill required
by the hired party; the duration of the relationship
between the parties; the hiring party’s right to assign
additional projects; the hired party’s discretion over
when and how to work; the method of payment; the hired
party’s role in hiring and paying assistants; whether
the work is part of the hiring party’s regular business;
the hired party’s employee benefits; and tax treatment
of the hired party’s compensation.

3

Simpson v. Ernst & Young, 100 F.3d 436, 443 (6th Cir. 1996) (citing
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323–24 (1992)).
As Plaintiff concedes that he was an independent contractor, the
parties had no reason to brief the issue.

Applying the factors

above to the limited information before it, the Court has no cause
to question the parties’ conclusion that the Plaintiff was, indeed,
an independent contractor.
In Steilberg v. C2 Facility Solutions, LLC, 275 S.W.3d 732
(Ky. Ct. App. 2008), a marketing professional sued the defendant
business, alleging that the president/CEO sexually harassed her in
violation of the Kentucky Civil Rights Act.

The court focused its

thorough inquiry on whether the plaintiff was properly considered
an employee or an independent contractor.

This analysis was key

because, in the court’s opinion, Plaintiff’s KCRA claims were
automatically precluded if she was an independent contractor.

See

Steilberg, 275 S.W. at 735 (citing Shah v. Deaconess Hosp., 355
F.3d

496

described

(6th

Cir.

above,

the

2004)).
court

After

engaging

concluded

that

in

the

Plaintiff

analysis
was

an

independent contractor and determined that the defendants were
entitled to judgment as a matter of law.
Plaintiff fails to distinguish this case from Steilberg.
Instead, he argues that, rather than focusing on KRS § 344. 040
(“unlawful discrimination by employers”), the Court must look to
§ 344.280 to find the true source of the Defendant’s statutory
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violation.

That section, which addresses conspiracy to violate

the KCRA, reads in part, “It shall be an unlawful practice for a
person to conspire [t]o retaliate or discriminate in any manner
against a person because he has opposed a practice declared
unlawful by this chapter.”

The problem with Plaintiff’s argument

is that he has failed to identify any practice that has been
declared unlawful.

Again, he has alleged only conduct affecting

an independent contractor and, as discussed, this is not in
proscribed by the KCRA.
For

the

Defendant’s

foregoing
motion

for

reasons,
summary

IT

IS

HEREBY

judgment

with

ORDERED
respect

that
to

Plaintiff’s claims under the Kentucky Civil Rights Act, [DE 16],
is GRANTED.
This the 9th day of September, 2015.

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