Byrd v. Norfolk Southern Railway Company et al
Filing
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ORDER granting 7 Motion to Dismiss. Signed by District Judge Marianne O. Battani. (BThe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHNNIE BYRD,
Plaintiff,
v.
CASE NO. 2:13-cv-13947
NORFOLK SOUTHERN RAILWAY
COMPANY and CONSOLIDATED RAIL
CORPORATION,
HON. MARIANNE O. BATTANI
Defendants.
_________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
This matter is before the Court on Defendant Consolidated Rail Corporation’s
(“Conrail”) Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff Johnnie Byrd
filed the instant action against Norfolk Southern Railway Company (“NSR”) and Conrail
alleging employment discrimination based on race. Byrd alleges that Conrail barred him
from its premises, which in turn, prompted his employer NSR to demote him from
locomotive engineer to yard worker. In the Complaint, Byrd alleges that NSR is his
employer, but that both “Defendants are ‘employers’ within the meaning of Title VII of
the Civil Rights Act of 1964 . . . .” (Compl. at ¶ 16, ECF No. 1).
The central issue is whether Conrail is Byrd’s employer for purposes of Title VII
and ELCRA. In determining whether a party is an employee under Title VII, the Sixth
Circuit applies the common law agency test, in which the court considers:
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.
Shah v. Deaconess Hosp., 355 F.3d 496, 499-500 (6th Cir. 2004) (quoting Simpson v.
Ernst & Young, 100 F.3d 436, 443 (6th Cir. 1996)).
The Court finds that Byrd is not an employee of Conrail for purposes of Title VII
and ELCRA. It is undisputed that Conrail does not compensate Byrd for his work,
provide Byrd a W-2, provide Byrd employment benefits, decide whether to demote or
fire Byrd, dictate hours of his employment, or assign work. In addition, Byrd’s reliance
on Christopher v. Stouder Memorial Hospital, 936 F.2d 870 (6th Cir. 1991) is misplaced,
as its holding is outdated and unworkable. See Smiley v. Ohio, 2011 WL 4481350 at *4
(S.D. Ohio Sept. 27, 2011) (“While the Sixth Circuit has not squarely addressed the
viability of the interference theory since it decided Christopher, the court recently
suggested that adoption of the theory in Christopher might be inconsistent with more
recent cases applying the common law agency test.”); Lopez v. Massachusetts, 588
F.3d 69, 89 (1st Cir. 2009) (rejecting the interference theory as “entirely inconsistent
with the use of the common law criteria the Supreme Court has identified.”). As such,
Byrd failed to allege sufficient facts to establish that Conrail is his employer under both
statutes. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly,
Conrail’s motion to dismiss is GRANTED.
IT IS SO ORDERED.
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
DATE: February 10, 2014
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CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this order was served upon all
parties of record via the Court’s ECF Filing System.
s/Bernadette M. Thebolt
Case Manager
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