Taylor v. Colorado State University

Filing 55

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 12/10/2012; re 41 MOTION for Summary Judgment filed by Board of Governors for the Colorado State University System, Colorado State University ; an appropriate order shall issuecc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:11-CV-00034
STEVEN L. TAYLOR

Plaintiff

v.
COLORADO STATE UNIVERSITY, et al.

Defendants

MEMORANDUM OPINION
This matter is before the Court upon Defendant Board of Governors for the
Colorado State University System, as the governing body of Colorado State University’s
Motion for Summary Judgment. (Docket No. 41.) Plaintiff Steven Taylor has responded,
(Docket No. 43), and Defendant has replied, (Docket No. 50). This matter is now ripe for
adjudication. For the reasons that follow, Defendant’s Motion for Summary Judgment,
(Docket No. 41), will be GRANTED. An appropriate Order of dismissal will issue
concurrently with this Opinion.
BACKGROUND
Much of the relevant background was presented in the Court’s prior
Memorandum Opinion and Order entered on October 18, 2012. (See Docket No. 42, at
1-5.) Therefore, the Court will limit its recitation of the background facts here to those
not previously addressed and that are pertinent to the instant Motion.

Page 1 of 22

Plaintiff Steven Taylor was employed by Colorado State University (CSU)
through its Center for Environmental 1 Management of Military Lands (CEMML) and
worked at Fort Campbell, Kentucky, beginning February 12, 2001. (Docket No. 41-3.)
CSU, through its CEMML, entered into a cost-reimbursable agreement with the U.S.
Department of Agriculture (USDA) Forest Service to provide conservation, research, and
resource management services on public lands controlled by the U.S. Department of
Defense (DoD). That agreement provided specifically that either party could terminate
the agreement, in whole or in part, at any time prior to contract’s expiration on March 31,
2010. (See Docket No. 41-2, at 7.) Taylor was informed he had been hired by a January
25, 2001, appointment letter from CSU. (Docket No. 41-3.) In that appointment letter,
Taylor was advised that his “position ha[d] been approved as a special appointment.”
(Docket No. 41-3.) It went on, “As is the case with all special appointments at Colorado
State University, the position is dependent upon the availability of funding.” (Docket No.
41-3.) The job description for Taylor’s position also stated in the second sentence of the
first paragraph, “Position contingent upon the availability of funds.” (Docket No. 41-4.)
Additionally, Taylor acknowledged in his deposition that he was informed his position
depended on funding through the CEMML. (Docket No. 43-2, at 17.)
Taylor states that while he was working for the Montgomery County Soil
Conservation Service conducting a biological survey for Fort Campbell, he was invited
by Beth Boren to apply for a position at Fort Campbell to be funded by CSU. (See

1

In CSU’s Motion and in the Court’s prior Memorandum Opinion and Order, the CEMML was identified
as the “Center for Environmental Management of Military Lands.” (See Docket Nos. 41-1, at 2; 42, at 1.)
It appears the name was changed sometime after Taylor’s employment began, as his appointment letter
refers to the “Center for Ecological Management of Military Lands.” (See Docket No. 41-3.)

Page 2 of 22

Docket No. 43-2, at 13-14.)

Taylor recalls submitting an application and being

interviewed over the phone; he also recalls being told when he was hired that he would be
assisting Boren in “any technical stuff she had.” (Docket No. 43-2, at 14-15.) Taylor
acknowledges that Boren was not employed by CSU, (see Docket No. 43-2, at 17-18),
and states that Bob Brozca at CSU was his designated superior, (Docket No. 43, at 2; 432, at 15). Taylor describes his job duties as making conservation plans, conducting
prescribed burnings, coordinating with other agencies to help maintain military lands, and
ensuring that farmers who were farming military lands under lease “kept their
conservation going.” (Docket No. 43-2, at 19.) Taylor’s payroll checks were issued to
him by CSU. (Docket No. 43-2, at 20.) In an apparent effort to clarify the employment
status of CSU personnel, Taylor received a memorandum dated January 2001 at the time
he was hired explaining, among other things, who Taylor was employed by and outlining
his employment in relation to Fort Campbell and the DoD:
SUBJECT: Employment Status and Information
. . . . If you receive pay checks from CSU, you are an employee of
the State of Colorado, not CERL, an installation, the Air Force,
DOA, or DOD. Always identify yourself as a CSU employee to
avoid confusion and potential problems. . . . I know many of you
have been told you work for someone other than CSU, which is not
the case.
(Docket No. 50-2, at 1.)
Boren, a DoD employee, was Taylor’s point of contact for purposes CSU’s
contract at Fort Campbell. According to Taylor, Boren gave him his daily instructions as
to what he was to work on.

(Docket Nos. 43, at 2; 43-2, at 20.)

However, a

memorandum provided to Taylor at the time he was hired informed him, “You and your
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POC [point of contact] should discuss and agree on your daily activities, work hours, and
time off.”

(Docket No. 50-2 (emphasis added).)

In her signed declaration, Boren

expressly disclaims that her position as CSU’s point of contact “[wa]s not a supervisory
role.” (Docket No. 50-5, at 1.) Consistent with the January 2001 memorandum Taylor
received, Boren states: “Specific tasks and requirements were outlined in the Scope of
Work (SOW) and the CSU employee and I would review these tasks to discuss
particulars and the time line in which tasks were to be completed. Periodically, tasks
were reviewed by both parties and time lines or procedures were adjusted due to
unforeseen circumstances [but] very little day to day interaction was needed.” (Docket
No. 50-5, at 1-2.)
Taylor also says that Boren “promulgated the safety rules that [he] was required to
follow” 2 and “was responsible for [his] annual performance evaluations.” (Docket No.
43, at 2.) However, the same January 2001 memorandum explains more clearly that
Boren’s role in the evaluation process, as Taylor’s point of contact, was to receive and
input responses to a CSU questionnaire, which Taylor would then sign and return to
CSU. 3 (See Docket No. 50-2, at 2.) Boren also states in her signed declaration that:
“only employees of CSU have the authority to . . . complete performance appraisals . . . .
I merely verified or forwarded information to CSU personnel working with the
2

In support of his statement that Boren “promulgated . . . safety rules,” Taylor cites page 54 of his
deposition testimony, (Docket No. 43-2, at 54.) However, Taylor’s testimony there was in response to
questioning whether Boren had ever raised any performance concerns and discusses primarily a letter sent
by Boren to Dr. Steve Warren at CSU indicating safety concerns with Taylor wearing shorts rather than
pants to work. (See Docket No. 43-2, at 52-54).

3

In fact, Taylor most recent evaluation form dated May 2008 lists his supervisor as Dr. Warren and is
signed by Dr. Warren and Angela Thompson, the CEMML Director. (Docket No. 50-3, at 1.) Nowhere on
the evaluation does Boren’s name or signature appear.

Page 4 of 22

[Agricultural Outlease Program].” (Docket No. 50-5, at 1.) Boren also avers: “My
signature on performance evaluations was to verify that the CSU employee had
completed their part. I did not write the performance evaluations for Mr. Taylor or any
other CSU employee.” (Docket No. 50-5, at 1.) Consistent with the January 2001
memorandum and Boren’s statements, correspondence between CSU and Boren suggests
that Boren was merely the go-between for transmitting Taylor’s evaluation form from
CSU to Taylor and then back to CSU. (See Docket No. 50-4.) Although CSU on at least
one occasion invited Boren to provide feedback regarding Taylor’s performance, this was
apparently optional for Boren to do, and CSU reiterated at that time that CSU was
responsible for completing Taylor’s evaluation. (See Docket No. 50-4.)
Taylor avers that when he needed to take time off work to attend a rehabilitation
program for his alcoholism, “it was Boren who preapproved his leave.” (Docket No. 43,
at 2 (referencing Docket No. 43-2, at 28).)

This statement, however, appears contrary to

the documentary evidence of record for several reasons.

For one, the medical

certification form Taylor was required to submit for FMLA leave was a CSU form to be
completed by Taylor and his treating physician; it appears to have nothing to do with
Boren, the DoD, or Fort Campbell. (See Docket No. 41-13.) Second, the notification
letter informing Taylor that his request for FMLA leave had been approved was on a CSU
form, was completed and signed by CSU/CEMML human resources director Angela
Thompson (Thompson), and informed Taylor that he should contact Thompson if his
expected return date changed. (See Docket No. 41-14, at 2.) Third, Boren, in her signed
declaration, states that because “[t]he POC is not a supervisory role . . . only employees
of CSU have the authority to approve leave.” (Docket No. 50-5, at 1.) According to
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Boren, her “signature on leave documents was to verify, not approve, that these
documents were accurate before reported to CEMML.” (Docket No. 50-5, at 1.)
Taylor further states that it was his “understanding of his relationship with Boren
that he needed to go to her first, then go to CSU for his work issues, if necessary.”
(Docket No. 43, at 2 (referencing Docket No. 43-2, at 25).)
contradicted by the documentary evidence of record.

But this statement is also

Namely, the January 2001

memorandum Taylor received when he was hired informed him that “questions
concerning payroll, benefits, leave policies, employment regulations, worker’s
compensation, etc.” should be directed to CSU/CEMML human resources. (Docket No.
50-2, at 1.) That memorandum also informed Taylor that should a difficult situation
develop with his point of contact (i.e., Boren), he should contact CSU, as well as that all
“leave report forms” for annual or sick leave should be sent to CSU. (Docket No. 50-2,
at 1.)
Finally, Taylor avers that the DoD “supplied [him] with much of the equipment he
used in his work, such as four-wheelers and tractors.” (Docket No. 43, at 2 (referencing
Docket No. 43-2, at 55).) However, the cost-reimbursable agreement between the USDA
Forest Service and CSU expressly provides that CSU is responsible for providing all
“equipment needed for work under this agreement,” and states that “[f]ederal funding
under this instrument is not available for reimbursement of [CSU’s] purchase of
equipment.” (Docket No. 41-2, at 5, 9.) The “Agricultural Outlease Program Support”
guidelines further delineate what equipment was to be government-furnished (“[o]ffice
space, furniture, computer equipment, telephone, . . .”) and what was to be provided by
CSU/CEMML (cellular phone service, work boots, and personal protective equipment).
Page 6 of 22

(Docket No. 50-1.) And according to Boren, “[t]raining, travel, work boots, and Personal
Protective Equipment (PPE) were the responsibility of CSU.” (Docket No. 50-5, at 2.)
Boren further states:

“Equipment maintained by AOP [the Agricultural Outlease

Program] was purchased for use by all Environmental Division Branch and other
Division personnel in support of the mission at Fort Campbell. This equipment was in
use by the AOP prior to initiation of any contract with CSU or its personnel.” (Docket
No. 50-5, at 2.)
In the summer of 2008, Taylor’s physician advised him to immediately enter an
alcohol rehabilitation clinic because of the effect his alcoholism was having on his
diabetes. (Docket No. 43, at 3.) Taylor contacted Boren to notify her that he would need
to use some of his accrued leave to enter the program. He alleges that she responded,
“I’m not working with no F-ing alcoholic.” (Docket No. 43-2, at 46-47.) Shortly
thereafter, Boren emailed Dr. Steve Warren at CSU requesting “CEMML to have all the
government keys . . . issued to [Taylor] to be returned immediately by mail to Fort
Campbell.” (Docket No. 41-9.)

For her part, Boren denies making the remarks Taylor

alleges, stating:
I did not, at any time, make any discriminating or derogatory
statements to or about Steve Taylor or his medical conditions. . . .
In fact, two years previous, when he told me he needed to seek
treatment for his alcoholism, I encouraged him to do so and
supported him fully. . . . At no time did I ever say I would not work
with an alcoholic, not two years ago, and not in 2008. I simply
made no such statement to Mr. Taylor or anyone else.
(Docket No. 50-5, at 3.)

Page 7 of 22

Thompson was contacted on June 25, 2008, 4 by Deniece Gillispie (Gillispie),
Taylor’s daughter, who informed Thompson of Taylor’s medical conditions and that he
would need to take leave. (Docket No. 43-4, at 1.) Gillispie related to Thompson that
Taylor “was having problems” with Boren and that Boren had “made remarks to [him]
that indicated an intolerance for individuals who are alcoholics.” (Docket No. 43-4, at 1.)
Gillispie also asked whether there might be other positions available through CSU at Fort
Campbell. (Docket No. 43-4, at 2.) On June 27, 2008, Thompson responded by emailing
Gillispie a CSU medical certification form for Taylor to complete for FMLA purposes
and advising Gillispie as to two possible upcoming job openings with CSU. (Docket
Nos. 41-10; 43-4, at 2.)
Also on June 27, 2008, Dr. Warren wrote to Thompson in response to Gillispie’s
email, advising Thompson, “If Steven [Taylor] is entitled to any assistance through the
CSU Benefits Office, we should let him know.” (Docket No. 43-5, at 1.) Thompson
replied to Dr. Warren, informing him that she had sent the FMLA forms to Gillispie and
stating:
We should not do anything negative to [Taylor] based on this,
including removing his keys and access card. As far as I know, he
has never had performance problems and has never been under the
influence at work. With all the information I have at this point, we
should only consider him out on sick leave for 2 weeks. No action
against him is needed.
(Docket No. 43-5, at 1.) Thompson also noted that based on what Gillispie had told her,
it appeared Boren had “crossed the line.” (Docket No. 43-5, at 1.) In accordance with
4

Of note, also on June 25 CSU approved a 5% raise for Taylor beginning July 1, 2008. (See Docket No.
41-15.)

Page 8 of 22

Thompson’s recommendation and in spite of Boren’s request, CSU made no effort to
obtain Taylor’s keys. (Docket No. 43-4, at 2.)
On July 8, 2008, Taylor submitted his CSU medical certification form indicating
he would be absent from work through July 20. (See Docket Nos. 41-13; 43-4, at 2.)
CSU approved Taylor for FMLA leave, and Thompson contacted CSU’s Office of Equal
Opportunity and Diversity to advise them that Taylor may need to be assessed to
determine whether he meets the disability requirements under the Americans with
Disabilities Act (ADA). (Docket No. 43-4, at 3.)
Then on July 15, 2008, Dr. Warren received an email notifying him that Fort
Campbell wanted to terminate its agreement with CSU as of July 21. (Docket No. 4116.) And on July 17, the USDA Forest Service received a Military Interdepartmental
Purchase Request reflecting a new termination date of July 21, 2008. (Docket No. 4117.) That same day, Dr. Warren wrote to Taylor informing him that the USDA Forest
Service wished to terminate its agreement with CSU effective July 21. (Docket No. 4118.) Dr. Warren further advised Taylor:
Due to the termination of the Agreement by the Forest Service, and
pursuant to your appointment letter dated January 25, 2001, which
reiterates that your position is “dependent upon the availability of
funding”, CSU will no longer have funding to continue your
employment. . . .
Should you be willing to relocate, please feel free to call
Angela Thompson in the [CEMML] Human Resources Office, or
log on to the CEMML website to see what positions might be
available with CEMML. You will be given full consideration for
any position for which you may qualify.

Page 9 of 22

(Docket No. 41-18.) Taylor learned of Warren’s letter after he left the rehabilitation
program. (See Docket No. 41-8, at 14.)
Taylor filed the instant suit against CSU on March 7, 2011. (Docket No. 1.) He
thereafter filed an Amended Complaint adding the Secretary of the Army (Army) as a
codefendant. (See Docket Nos. 22; 25.) The Army filed a motion to dismiss or, in the
alternative, for summary judgment on March 4, 2012.

(Docket No. 35.)

After

considering the Army’s motion and Taylor’s response, this Court granted summary
judgment to the Army on October 18, 2012. 5 (Docket No. 42.)

CSU then filed the

instant Motion for Summary Judgment on October 1, 2012. (Docket No. 41.)
CSU argues that summary judgment is appropriate for several reasons: (1) CSU
did not violate the ADA because it did not discriminate against Taylor on the basis of his
disability when his employment was terminated; (2) CSU also did not violate the
Vocational Rehabilitation Act of 1973 (Rehabilitation Act), and Taylor has presented no
evidence showing he was terminated solely because of his disability; (3) the DoD is not
Taylor’s joint employer and, therefore, the motives and actions of the DoD cannot be
attributed to CSU; and (4) because Boren was not CSU’s agent, CSU cannot be not liable
for her actions under respondeat superior. (Docket No. 41-1, at 8, 11, 12, 14.) Taylor
responds with essentially two lines of argument: (1) that CSU was aware of Boren’s
conduct and terminated him anyway, which he reasons presents facts on which “a
reasonable jury could conclude that [his] termination was based on his disability”; and (2)
that CSU should be liable for the DoD and Boren’s actions “under the ‘joint employer’
5

Taylor has since filed a Motion for Reconsideration (erroneously styled as “Motion for Extension of Time
to File Response”). (Docket No. 46.) That Motion has yet to be ruled upon by the Court.

Page 10 of 22

doctrine.” (Docket No. 43, at 4-5.) For the reasons that follow, the Court finds summary
judgment is appropriate as to Taylor’s claims against remaining Defendant CSU.
STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “[N]ot every issue of fact or conflicting inference presents a genuine issue
of material fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).
The test is whether the party bearing the burden of proof has presented a jury question as
to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The
plaintiff must present more than a mere scintilla of evidence in support of his position; he
must present evidence on which the trier of fact could reasonably find for him. See id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will
not suffice to defeat a motion for summary judgment: “[T]he mere existence of a
colorable factual dispute will not defeat a properly supported motion for summary
judgment. A genuine dispute between the parties on an issue of material fact must exist to
render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition
Corp., Inc., 681 F.3d 312 (6th Cir. 2012).
In determining whether summary judgment is appropriate, a court must resolve all
ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Still, “A party
asserting that a fact cannot be or is genuinely disputed must support the assertion by . . .
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citing to particular parts of materials in the record . . . or showing that the materials cited
do not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).
“The court need consider only the cited materials, but it may consider other materials in
the record.” Fed. R. Civ. P. 56(c)(3).
DISCUSSION
The ADA prohibits discrimination by covered entities “against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42 U.S.C. § 12112. A plaintiff can
prove disability discrimination by “direct evidence that the employer relied on [his]
disability in making an adverse employment decision, or if the employer admits reliance
on the handicap.” Monette, 90 F.3d at 1186. Absent direct evidence of discrimination,
the burden-shifting framework of McDonnell Douglas Corp. v. Green applies.
Shoemaker v. E.I. DuPont de Nemours & Co., 405 F. App’x 16, 18 (6th Cir. 2010)
(referencing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)); see also
Monette, 90 F.3d at 1186. Under this approach, “[t]he plaintiff must first establish a
prima facie case of discrimination.” Shoemaker, 405 F. App’x at 18 (citing Monette, 90
F.3d at 1186). This burden “is not onerous”; rather, a plaintiff’s burden at the summary
judgment stage “is merely to present evidence from which a reasonable jury could
conclude that [he] suffered an adverse employment action ‘under circumstances which
give rise to an inference of unlawful discrimination.’” Macy v. Hopkins Cnty. Sch. Bd. of
Educ., 484 F.3d 357, 364 (6th Cir. 2007) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1918)), abrogated on other grounds by Lewis, 681 F.3d 312. Thus, a

Page 12 of 22

plaintiff must typically show: (1) he is a member of a protected class (i.e., he is
“disabled”); (2) he was otherwise qualified for the position; (3) he suffered an adverse
employment action; and (4) the circumstances under which he suffered that action give
rise to the inference of unlawful discrimination—or, stated differently, that there is a
nexus between the adverse action and his disability. Id. (citing McDonnell Douglas, 411
U.S. at 802; Monette, 90 F.3d at 1177-86). Once a prima facie case is established, the
burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory
reason for the adverse action. Id. (citing Monette, 90 F.3d at 1186). If the defendant
offers sufficient evidence of a legitimate, nondiscriminatory reason, the burden then shifts
back to the plaintiff to “identify evidence from which a reasonable jury could conclude
that the proffered reason is actually pretext for unlawful discrimination.” Id. (citing
Monette, 90 F.3d at 1186).
Similarly, the Rehabilitation Act prohibits discrimination against otherwise
qualified individuals on account of their disability in regard to participation in, or
receiving the benefits of, “any program or activity receiving Federal financial assistance.”
29 U.S.C. § 794. Under the Rehabilitation Act, a plaintiff may establish a prima facie
case by showing: (1) he is a “handicapped person”; (2) he is otherwise qualified to
participate in the program; (3) he “is being excluded from participation in, being denied
the benefits of, or being subjected to discrimination under the program solely by reason
of his handicap”; 6 and (4) the program is receiving federal financial assistance. Maddox
v. Univ. of Tenn., 62 F.3d 843, 846 (6th Cir. 1995).

6

In the Sixth Circuit’s recent decision in Lewis, the court of appeals clarified that the causation standard for
ADA claims is not, as had been previously interpreted, the higher “solely by reason of” standard. 681 F.3d

Page 13 of 22

I.

Taylor’s ADA Claim Against CSU Fails as a Matter of Law
Taylor alleges as the basis for his ADA claim that he was terminated because of

disability discrimination on the part of Boren who told him she would not work with an
alcoholic. (See Docket No. 43-2, at 46-47.) CSU argues that under either the direct or
indirect method of proof, Taylor’s ADA claim against it fails as a matter of law. CSU
concedes that Taylor qualifies as “disabled” for purposes of the ADA and that he suffered
an adverse employment action when his position was terminated; however, CSU
maintains that there is no evidence to suggest that CSU terminated Taylor because of his
disability. (See Docket No. 41-1, at 9.) Taylor responds, arguing that CSU was aware
that Boren was unlawfully attempting to terminate him, and “yet they terminated Taylor’s
employment anyway.” (Docket No. 43, at 4-5.)
Taylor does not allege any unlawful conduct on the part of CSU aside from the
fact that it was CSU that terminated his position. Thus, as an initial matter, the Court
questions whether the evidence of record even establishes a prima facie case against
CSU, because Taylor has not established a clear nexus between CSU’s act of terminating
his position and any alleged unlawful discrimination by a non-CSU employee who played
no direct role in CSU’s decision to terminate Taylor’s employment. However, even if the
evidence were sufficient to establish a prima facie case against CSU, Taylor has failed to
offer any evidence showing that CSU’s proffered nondiscriminatory reason for
terminating him was merely pretext for its true discriminatory intent. CSU states that its
decision to terminate Taylor was based solely on the fact that funding for his position

at 315-16. However, under the plain language of 42 U.S.C. § 794(a), that standard remains applicable for
Rehabilitation Act claims. Id.

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ceased when the USDA Forest Service elected to unilaterally terminate its contract with
CSU. CSU maintains it did not participate in the decision to end that agreement and
insists it had no authority to challenge the USDA Forest Service’s decision because the
contract expressly provided that either party could unilaterally terminate the agreement at
any time. According to CSU, because Taylor’s position was funded entirely through that
agreement, when the contract was terminated the funding ended; therefore, it had no
choice but to terminate Taylor’s position and, thus, to terminate Taylor.
CSU’s position here is supported by the evidence of record and appears to the
Court a legitimate, nondiscriminatory explanation for the adverse employment action
suffered by Taylor. Moreover, CSU’s actions before Taylor entered rehab and while he
was there evince no discriminatory motives on CSU’s part; in fact, CSU’s actions suggest
just the opposite. CSU did not terminate Taylor when he decided to enter rehab. When
Boren requested that CSU reclaim all of Taylor’s keys and return them to Ft. Campbell,
CSU refused. When Taylor’s daughter, Gillispie, advised CSU that Taylor needed to take
leave, CSU provided her the necessary forms and then approved Taylor’s FMLA leave.
What’s more, while Taylor was in rehab, CSU gave him a raise. When Gillispie asked
whether CSU had any other positions available, CSU provided her information regarding
several positions. And when CSU notified Taylor that the USDA Forest Service had
terminated its agreement with CSU thereby eliminating funding for Taylor’s position,
CSU encouraged Taylor to apply for other positions, assuring him he would be given full
consideration. This evidence suggests no pretext for Taylor’s termination, but rather
buttresses CSU’s nondiscriminatory explanation for why Taylor was terminated.

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In sum, Taylor has produced no direct evidence of discrimination on the part of
CSU in its terminating his position.

And under the burden-shifting framework for

proving discrimination by indirect evidence, the Court is satisfied that even if Taylor has
established a prima facie case, he has offered no evidence tending to show that CSU’s
proffered reason for terminating him is merely pretext for its true discriminatory intent.
Therefore, the Court finds no genuine issue of material fact here so as to preclude
summary judgment on Taylor’s ADA claim against CSU.
II.

Taylor’s Rehabilitation Act Claim Against CSU Also Fails.
Taylor alleges that CSU violated the Rehabilitation Act by terminating his

position. As previously noted, unlike the ADA, the Rehabilitation Act requires proof that
Taylor was terminated solely by reason of his disability. See 42 U.S.C. § 794(a); Lewis,
681 F.3d at 315-16. CSU argues that even assuming Taylor could establish that he is a
“handicapped person” with meaning of the Act, is “otherwise qualified,” and that the
relevant program receives federal funding, he has produced no evidence to suggest that
CSU terminated him because of his handicap, much less solely by reason of his handicap.
CSU has established that it terminated Taylor’s position when the USDA Forest Service
unilaterally terminated the contract with CSU under which Taylor’s position was funded.
And, as CSU points out, Taylor was aware from the time he was hired that his position
was entirely dependent on outside funding. Here, that funding ended causing CSU to
terminate Taylor’s position.

Taylor did not address his Rehabilitation Act claim in

responding to CSU’s instant Motion.

Regardless, the Court finds that Taylor has

presented no genuine issues of material fact as to whether CSU violated the

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Rehabilitation Act by terminating his position.

As such, summary judgment is

appropriate.
III.

CSU Is Not Liable for the DoD’s Motives or Actions Regarding Taylor’s
Termination Under Either the “Joint Employer” Doctrine or Respondeat
Superior.
Taylor expressly seeks to hold CSU liable under the “joint employer” doctrine for

the alleged discriminatory actions of the DoD and Boren. (See Docket No. 43, at 5.)
CSU argues that the DoD is not Taylor’s joint employer and that its actions and motives
are therefore not attributable to CSU. CSU also argues it is not liable for Boren’s conduct
under a theory of respondeat superior because Boren was not its agent. After reviewing
the evidence of record and the parties’ arguments, the Court concludes that CSU cannot
be held liable under either theory.
A.

The DoD was not Taylor’s joint employer.

An entity that does not otherwise meet the definition of “employer” may still be
liable under the joint-employer doctrine. 7 Sanford v. Main St. Baptist Church Manor,
Inc., 449 F. App’x 488, 491 (6th Cir. 2011). “The joint-employer doctrine involves a
business that maintains sufficient control over some or all of the formal employees of
another business as to qualify as those employees’ employer.” Id.; see also Swallows v.
Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997); Carrier Corp. v.
NLRB, 768 F.2d 778, 781 (6th Cir. 1985). In Carrier Corp. v. NLRB, the Sixth Circuit
identified the proper legal standard to determine whether a joint-employer relationship
exists as: “[W]here two or more employers exert significant control over the same
7

Although the joint-employer doctrine developed in the labor relations context, the concept has since been
imported into the civil rights context. See, e.g., Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d
990, 993 n.3 (6th Cir. 1997).

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employees—where from the evidence it can be shown that they share or co-determine
those matters governing essential terms and conditions of employment—they constitute
‘joint employers.’” 768 F.2d at 781 (alteration in original) (quoting NLRB v. BrowningFerris Indus. of Penn., Inc., 691 F.2d 1117, 1124 (3d Cir. 1982)). Among the factors
recognized by the Sixth Circuit for determining whether a joint-employer relationship
exists are: “the right to hire, discharge, train, and pay employees, and to determine such
employees’ compensation.” 3750 Orange Place Ltd. P’ship v. NLRB, 333 F.3d 646, 660
(6th Cir. 2003). Other courts in this Circuit have considered similar factors, including:
“the ‘authority to hire, fire and discipline employees, promulgation of work rules and
conditions of employment, issuance of work assignments and instructions, and
supervision of employees’ day-to-day activities.’”

Russell v. Bronson Heating &

Cooling, 345 F. Supp. 2d 761, 771 (E.D. Mich. 2004) (quoting EEOC v. Regency Windsor
Mgmt. Co., 862 F. Supp. 189, 191 (W.D. Mich. 1994)).
Taylor urges the Court to find that the DoD was his joint employer based on
several of these factors. First, he argues that he “had very infrequent contact with his
putative supervisor in Colorado,” and “it was Boren who gave [him] his daily work
assignments.” (Docket No. 43, at 6.) To this end, he references the court’s opinion in
Carrier where it found facts supporting a joint-employer relationship in that Carrier, who
leased truck drivers from Pacemaker Driver Services, “exercised substantial day-to-day
control over the drivers’ working conditions, while the drivers had only infrequent
contact with Pacemaker.” 768 F.2d at 781. Second, Taylor asserts that the DoD provided
the “office space, and much of the tools he needed to perform his work.” (Docket No. 43,
at 6.) Third, he says “[i]t was Boren, and not CSU, that worked with Taylor to perform

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his annual performance evaluations.” (Docket No. 43, at 6.) Fourth, Taylor posits that “it
was Boren who initially recruited [him] to work at Fort Campbell.” (Docket No. 43, at
6.) Finally, he argues that the DoD had the power to terminate his employment. (Docket
No. 43, at 6.)
The Court cannot agree, however, that the evidence of record establishes a
genuine issue of fact whether the DoD was Taylor’s joint employer. The facts here
simply do not show that CSU and the DoD shared or codetermined the essential terms
and conditions of Taylor’s employment. For one, Taylor’s assertion that Boren gave him
his daily work assignments is not supported by any evidence and, in fact, is contrary to
the bulk of evidence in the record.

Documentation from CSU throughout Taylor’s

employment shows that Boren had no apparent control over Taylor’s work but, at most,
that Taylor was to coordinate with Boren as his point of contact, not his supervisor,
regarding the projects he worked on.
In Carrier, one of the decisions on which Taylor relies, the court found “there was
evidence suggesting that Pacemaker officials consulted with Carrier officials over wages
and fringe benefits for the drivers” and that “under Carrier’s leasing agreement with
Pacemaker, Carrier had the authority to reject any driver that did not meet its standards
and could also direct Pacemaker to remove any driver whose conduct was not in Carrier’s
best interests.” 768 F.2d at 781. The facts here are wholly distinguishable. There is no
evidence suggesting that CSU ever consulted with the DoD regarding Taylor’s pay or
benefits, nor that the DoD had any authority to control Taylor’s daily activities or reject
his employment. There is likewise no evidence to suggest that the DoD had the authority
to terminate Taylor. This is most clearly shown by Boren’s request that Taylor’s keys be

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obtained by CSU and returned to Fort Campbell, which CSU denied. If the DoD or
Boren had any authority to reject Taylor’s employment, terminate him, or control his
activities, there would have been no need to request CSU take any action; Boren could
have simply ordered Taylor to return the keys herself or advised CSU that the DoD was
rejecting Taylor as an employee. Further, despite his assertion that the DoD had the
power to terminate his employment, the evidence of record clearly reflects otherwise. If
the DoD or Boren actually had that power, it (or she) could have fired him.
Moreover, the evidence reflects that the essential terms and conditions of Taylor’s
employment were squarely within the control of CSU, not the DoD. Boren may have
notified Taylor of the position initially and even recommended him for it, but Taylor’s
own testimony shows that he still had to apply to CSU for the job and interview with
CSU personnel. There is nothing to suggest that the DoD or anyone outside CSU had the
authority to decide whether ultimately to hire Taylor. There is likewise nothing to
suggest that the DoD or Boren had any control whatsoever over Taylor’s compensation.
He was paid directly by CSU, and CSU provided all the benefits of his employment. And
when he requested leave, he did so through CSU, which was then considered and
approved solely by CSU. That the DoD may have supplied some of the equipment and/or
workspace Taylor utilized during his employment with CSU does not establish, in light of
the entirety of the situation, that the DoD was Taylor’s joint employer. Nor does the fact
that Boren may have written some safety procedures give rise to a joint-employer
relationship between the DoD and CSU (particularly given that Taylor has produced no
further evidence of these regulations or to suggest that he would have been actually
required to follow them).

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Therefore, based on the factors considered by the Sixth Circuit and other courts
for determining whether a joint-employer relationship exists, the Court finds that the
DoD was not Taylor’s joint employer. The facts simply do not show that CSU and the
DoD shared or codetermined the essential terms and conditions of Taylor’s employment.
Accordingly, because the Court finds no genuine issues of material fact regarding the
status of CSU as Taylor’s employer, summary judgment is appropriate.
B.

CSU is not liable for Boren’s actions under respondeat superior
because Boren was not CSU’s agent.

Taylor alleges in his Second Amended Complaint that because Boren was CSU’s
agent by serving as his DoD point of contact, CSU is responsible for her actions under
the theory of respondeat superior. (Docket No. 1, at 3.)

CSU argues in its instant

Motion that Taylor has offered no evidence to suggest that CSU delegated control and
supervision of him to Boren or that Boren was CSU’s agent. (Docket No. 41-1, at 15.)
Taylor did not respond to this line of argument in his Response, instead focusing entirely
on whether the DoD was his joint employer. Regardless, the Court is convinced based on
the evidence of record that no genuine issue of material fact exists as to whether Boren
was CSU’s agent or whether CSU could be liable for Boren’s actions under respondeat
superior.
The theory of respondeat superior is founded on the principles of agency. Under
that approach, a principal may be vicariously liable for the actions of its agent only if “the
agent acts for the benefit of the principal within the scope of employment.” Jones v.
Federated Fin. Reserve Corp., 144 F.3d 961, 965 (6th Cir. 1998). “An agent is one who
consents to act on behalf of another and subject to the other’s control.” Swallows, 128
F.3d at 996 (citing Restatement (Second) of Agency § 1 (1958)). In the context of federal
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discrimination statutes, the agent “must be an agent with respect to employment
practices.” Id. (citing, e.g., Deal v. State Farm Cnty. Mut. Ins. Co. of Tex., 5 F.3d 117,
119 (5th Cir. 1993)).
Other than his conclusory statements that Boren was CSU’s agent, Taylor has
produced no evidence suggesting that Boren acted on behalf of CSU within the scope of
her employment or was in any way subject to CSU’s control. That Taylor does not
defend this position in his Response is telling. Based on its discussion above and its
review of the record, the Court finds no evidence that CSU delegated to either Boren or
the DoD the authority to make employment decisions on its behalf, nor that CSU
exercised the requisite control over either Boren or the DoD’s decisions. Therefore,
neither the DoD nor Boren can be considered Taylor’s employer for purposes of his
discrimination claims on the basis that either was acting as CSU’s agent.
CONCLUSION
For the foregoing reasons, Defendant CSU’s Motion for Summary Judgment,
(Docket No. 41), will be GRANTED. Because CSU is the only remaining defendant in
this action, an appropriate Order of dismissal will issue concurrently with this Opinion.

Date:

cc:

December 10, 2012

Counsel

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