Tipton v. Jeff Sessions, Attorney General

Filing 25

ORDER Denying Defendant's Motion to Dismiss or for Summary Judgment 19 without prejudice.The stay of discovery is LIFTED. The parties shall submit a joint proposed First Amended Scheduling Order by November 27, 2018. Signed on 11/13/2018 by District Judge Roseann Ketchmark. (Stout, Courtney)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

ELAINE TIPTON,
Plaintiff,
v.
JEFF SESSIONS, ATTORNEY
GENERAL, U.S. DEPARTMENT OF
JUSTICE,
Defendant.

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No. 6:17-03179-CV-RK

ORDER DENYING MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
Before the Court is Defendant’s Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment (“Motion to Dismiss or for Summary Judgment”). (Doc. 19.) Plaintiff alleges
she was harassed and retaliated against while working as a dental hygienist in a federal prison.
(Doc. 1.) Defendant contends Plaintiff was not a federal employee but an independent contractor
who cannot recover under federal antidiscrimination laws. (Doc. 19.) For the reasons below,
Defendant’s Motion to Dismiss or for Summary Judgment (doc. 19) is DENIED.
Background
Plaintiff worked at the United States Medical Center for Federal Prisoners in Springfield,
Missouri, as a part-time dental hygienist. She worked there for approximately six years under two
different contractors, the most recent being Compass Medical Provider, LLC (“Compass”). She
alleges that her supervisors at the prison harassed her based on her gender, sexual orientation, age,
and religion, and that Defendant retaliated against her for filing a formal complaint.

In

February 2014, Defendant hired a full-time dental hygienist, and Plaintiff was terminated.
After pursuing administrative relief with the Equal Employment Opportunity Commission
(“EEOC”), Plaintiff filed her Complaint in this Court under Title VII of the Civil Rights Act of
1964 (“Title VII”) and the Age Discrimination in Employment Act of 1967 (the “ADEA”).
Plaintiff alleges that, at all relevant times, she was a joint employee of Compass and Defendant.
Prior to the close of discovery, Defendant filed its Motion to Dismiss or for Summary
Judgment. (Docs. 14, 19.) Defendant requests dismissal or summary judgment on the theory that

Congress did not waive sovereign immunity for discrimination claims made by independent
contractors, only federal employees. Plaintiff filed an opposition to the request for dismissal but
asked for additional time to respond to the summary judgment motion following further discovery.
(Doc. 20.) Defendant then filed a reply. (Doc. 21.) At a September 21, 2018 status conference,
the Court stayed discovery pending a ruling on the present motion. (Doc. 24.)
Discussion
Title VII and the ADEA cover only employees, not independent contractors.
Glascock v. Linn Cnty. Emergency Med., PC, 698 F.3d 695, 698 (8th Cir. 2012) (Title VII);
Alexander v. Avera St. Luke’s Hosp., 768 F.3d 756, 761 (8th Cir. 2014) (ADEA). To determine
whether a person is an employee or an independent contractor, the Court must engage in a “factintensive” inquiry.

Schwieger v. Farm Bureau Ins. Co. of Neb., 207 F.3d 480, 484

(8th Cir. 2000). The “primary consideration is the hiring party’s right to control the manner and
means by which a task is accomplished.” Id. However, the Court must consider “‘all aspects of
the working relationship.’” Id. at 483 (citation omitted). This includes:
(1)

The right to control the manner and means by which the product is accomplished;

(2)

the skill required;

(3)

the source of the instrumentalities and tools;

(4)

the location of the work;

(5)

the duration of the relationship between the parties;

(6)

whether the hiring party has the right to assign additional projects to the hired party;

(7)

the extent of the hired party’s discretion over when and how long to work;

(8)

the method of payment;

(9)

the hired party’s role in hiring and paying assistants;

(10)

whether the work is part of the regular business of the hiring party;

(11)

whether the hiring party is in business;

(12)

the provision of employee benefits;

(13)

the tax treatment of the hired party; and

(14)

the “economic realities” of the relationship between the parties, including how the
work relationship may be terminated and whether the hired party receives leave.

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992); Glascock, 698 F.3d at 699;
Schwieger, 207 F.3d at 484.

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I.

Motion to Dismiss

As a preliminary matter, the Court will construe Defendant’s Rule 12(b)(6) motion to
dismiss as a request for judgment on the pleadings under Rule 12(c) because Defendant had already
filed its Answer when it filed the motion. See Z.J. v. Kansas City, Mo. Bd. of Police Comm’rs,
No. 4:15-CV-00621-FJG, 2016 WL 4126569, at *2 (W.D. Mo. Aug. 2, 2016). This distinction is
“purely formal” because the Court reviews both types of motions under the same standard. Id.
(citation omitted). The Court “accept[s] the allegations contained in the complaint as true and
draw[s] all reasonable inferences in favor of the nonmoving party.” Cole v. Homier Distrib. Co.,
599 F.3d 856, 861 (8th Cir. 2010) (quotation marks and citation omitted). The Complaint must
provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Here, the Complaint contains sufficient allegations that Plaintiff was a joint employee of
Compass and Defendant.

See Hunt v. State of Mo., Dep’t of Corr., 297 F.3d 735, 742

(8th Cir. 2002) (holding that Title VII applies to joint employees). Plaintiff alleges that she worked
at the prison facility, that she worked there for six years, and that the position was part time for 20
years before she was terminated. (Doc. 1 ¶¶ 1, 26.) She also alleges that Defendant was her “joint
employer throughout her employment because [Defendant] controlled nearly all aspects of her
employment, . . . supervised all her day to day duties, oversaw and reviewed her patient care,
directed her daily work activities, scheduled her patients and her work hours/breaks, reviewed her
performance, was responsible to oversee any disciplinary actions and provided her the equipment
to do her job.” (Doc. 1 ¶ 7.) According to the Complaint, Compass “never even visited the
facility.” (Id.) These allegations, if true, would allow the Court to draw a reasonable inference
that Plaintiff was a joint employee of Defendant. Accordingly, the Court will deny Defendant’s
request for judgment on the pleadings.
II.

Motion for Summary Judgment

“Summary judgment is required 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.”
Fed. Ins. Co. v. Great Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018) (quotation marks and
citations omitted). In ruling on a motion for summary judgment, the Court views the evidence “in
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the light most favorable to the nonmoving party and giv[es] the nonmoving party the benefit of all
reasonable inferences.” Id. (quotation mark and citation omitted). At the summary judgment
stage, the movant must “support” its motion either by “citing to particular parts of materials in the
record” or by “‘showing’—that is, pointing out to the district court—that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); Fed. R. Civ. P. 56(c)(1). The nonmovant must then “present affirmative evidence in order
to defeat a properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 257 (1986).
Here, Defendant has not met its burden of showing that Plaintiff was an independent
contractor. Summary judgment would be premature on the current record.
(1)

Control

Defendant relies primarily on the contract it had with Compass. (Docs. 19-1, 19-2.) The
contract states that Compass “will not be subject to Government supervision, except for security
related matters,” and that Defendant “retains no control over the medical, professional aspects of
services rendered.” (Doc. 19-2.) However, the contract also shows that Defendant had discretion
to control Plaintiff’s work schedule, the scheduling of sessions with inmates, the guidelines she
was bound to follow, and her performance evaluations. (Doc. 19-1.) Further, in a deposition
excerpt submitted by Defendant, the dentist who served as Defendant’s representative stated that
his role with respect to Plaintiff was “[t]o make sure [she] carried out her job as a hygienist” and
“functioned as a hygienist.”

(Doc. 19-4.) He testified that he was the person “primarily

responsible for directing [her] day-to-day work . . . [s]ince [he] supervised the clinic.” (Id.)
According to the dentist, “functionally or realistically, [he] supervised her.” (Id.)
Defendant argues that “‘control’ is not an especially helpful consideration where medical
services are at issue.” (Doc. 19 at 10.) In Glascock, the Eighth Circuit stated that “the issue of
control is less useful in the context of emergency room physicians than in some other settings
because a hospital ‘must assert a degree of conflicting control over every doctor’s work . . . to
discharge its own professional responsibility to patients,’ regardless [of] whether the
physician is an employee or independent contractor.”

698 F.3d at 698 (quoting

Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir. 1997) (The court in Cilecek
continued: “More enlightening is the control involved in deciding when a doctor performs his
services, the number of hours he performs them, and the administrative details incident to his
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professional services.”)). The Eighth Circuit ultimately held in Glascock that, assuming control
was a relevant consideration, the record was inconclusive on the issue of control. 698 F.3d at 698;
see also Alexander, 768 F.3d at 762 (holding that the control factor weighed in favor of
independent contractor status because the hospital did not control either the manner of a
pathologist’s performance or the schedule of work). In contrast to Glascock and Alexander, the
Eighth Circuit held in Hunt that nurses working in a Missouri state prison were employees of the
Missouri Department of Corrections (“DOC”) due in part to the control it exercised over their
“working terms and conditions.” 297 F.3d at 742-43.
Here, Defendant has not shown how Plaintiff, a dental hygienist, is more like the physicians
in Glascock and Alexander than the nurses in Hunt. The evidence currently before the Court
suggests Defendant controlled both (1) the manner of Plaintiff’s professional performance as a
hygienist by employing a dentist to supervise her and (2) the scheduling and administrative aspects
of her job. On the current record, this factor weighs in favor of employee status.
(2)

Degree of Skill Required

The contract states that Plaintiff must have a bachelor’s degree in Dental Hygiene or be a
graduate from an accredited Dental Hygiene program; hold a valid Dental Hygiene license issued
by any state; have a minimum of three years of experience; and be able to perform the services
specified in the contract. (Doc. 19-1 at 1.) Defendant has not briefed how or whether this
experience level is high enough to weigh in favor of independent contractor status. Compare
Alexander, 768 F.3d at 763 (“The level of skill required . . . [was] not indicative of employee status
because all hospital medical staff are skilled . . . .”), with Schwieger, 207 F.3d at 485 (holding that
the high skill level required for an insurance sales position weighed in favor of independent
contractor status). The current record is inconclusive on this factor.
(3)

Sources of the Instrumentalities and Tools

Defendant provided the supplies for the job. (Doc. 19-1 at 1.)

Therefore, this factor

weighs in favor of employee status. See Hunt, 297 F.3d at 742-43 (holding that this factor weighed
in favor of employee status because the DOC purchased and provided the tools and supplies for
the nurses); Allen v. U.S. Sec’y of Def., No. 4:10-cv-1928-FRB, 2012 WL 401062, at *5
(E.D. Mo. Feb. 8, 2012) (same for an administrative assistant hired to work for the National
Geospatial Intelligence Agency).

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(4)

Work Location

This factor appears to have neutral weight because providing dental hygiene services to
inmates must be performed on-site. Alexander, 768 F.3d at 763 (holding that this factor was
“inconclusive or of little relevance” because all hospital medical staff must work inside the
hospital); Zahner v. Tower Rock Stone Co., No. 4:10-cv-01756-HEA, 2012 WL 3065504, at *4
(E.D. Mo. July 27, 2012) (holding that this factor was neutral for a cleaning service because “the
nature of Plaintiff’s work required that she undertake the cleaning tasks on-site.”) Defendant did
not brief this issue, and the current record is inconclusive on this factor.
(5)

The Duration of the Relationship Between the Parties

The parties’ relationship lasted six years, but the contract’s term was for only one year.
The contract was renewable up to four times, but Defendant had unilateral discretion over whether
to renew. The record does not contain any evidence about what Plaintiff’s expectations were
regarding the duration of her employment. Compare Glascock, 698 F.3d at 699 (holding that the
worker’s expectation of long-term employment weighed in favor of employee status despite a oneyear contract term), with Zahner, 2012 WL 3065504, at *4 (holding that the at-will nature of
employment weighed in favor of independent contractor status on this factor despite a twelve-year
relationship). Defendant did not brief this issue. The current record is inconclusive on this factor.
(6)

Hiring Party’s Right to Assign Additional Projects

The contract contains a list of duties Plaintiff was required to perform. (Doc. 19-1 at 1.)
It also states: “This list is not all inclusive.” (Doc. 19-1 at 1.) This suggests Defendant was able
to assign additional projects to Plaintiff. Defendant did not brief this issue or attempt to show that
in reality, it did not have the right to assign additional projects. The current record is inconclusive
on this factor.
(7)

Worker’s Discretion over When and How Long to Work

The contract shows that Defendant had discretion to control Plaintiff’s work schedule and
the scheduling of sessions with inmates. (Doc. 19-1 at 4.) Therefore, on the current record, this
factor weighs in favor of employee status. Hunt, 297 F.3d at 742-43 (holding that this factor
weighed in favor of employee status because the prison nurses could not set their own schedules);
Allen, 2012 WL 401062, at *5 (same for an administrative assistant).

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(8)

Payment

Plaintiff was paid by Compass, not Defendant. Therefore, on the current record, this factor
weighs in favor of independent contractor status. See Schwieger, 207 F.3d at 487 (holding that
this factor weighed in favor of independent contractor status because the insurance agent was not
paid by the company but solely through commission).
(9)

The Worker’s Role in Hiring and Paying Assistants

The contract is silent on this issue, and Defendant did not brief it. The current record is
inconclusive on this factor.
(10)

Whether the Work Is Part of the Regular Business of the Hiring Party

It is unclear whether providing inmates with dental hygiene services is part of Defendant’s
“regular” business of operating a prison. Compare Schwieger, 207 F.3d at 486 (holding that selling
insurance is part of an insurance company’s regular business), with Zahner, 2012 WL 3065504, at
*5 (holding that office cleaning is not part of a rock quarry’s regular business). Defendant did not
brief this issue. The current record is inconclusive on this factor.
(11)

Whether the Hiring Party Is in Business

Defendant is a governmental entity who is not in private “business.”

However,

governmental entities are equally capable of hiring both employees and independent contractors.
See Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by
Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002
(Dec. 3, 1997), https://www.eeoc.gov/policy/docs/conting.html (stating that the “principles
regarding joint employer coverage are the same” for private entities and federal agencies).
Defendant has not shown how the fact that it is a governmental entity that does not conduct private
business has any bearing on whether Plaintiff should be treated as an independent contractor or an
employee under the discrimination laws. The current record is inconclusive on this factor.
(12)

Benefits

Plaintiff did not receive any retirement or healthcare benefits from Defendant. Therefore,
this factor weighs in favor of independent contractor status. See Alexander, 768 F.3d at 762
(holding that the lack of benefits weighed in favor of independent contractor status); Glascock,
698 F.3d at 699 (same).

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(13)

Tax Treatment

The contract states that, if awarded to an individual, Defendant would treat that person as
a “common law employee” and withhold federal payroll taxes. (Doc. 19-1 at 4.) However, the
contract was awarded to Compass, not Plaintiff as an individual. The record is silent about whether
Defendant withheld and reported Plaintiff’s taxes, whether Compass did this, or whether Plaintiff
was responsible for using a self-employment reporting mechanism. Zahner, 2012 WL 3065504 at
*5 (holding that the plaintiff’s self-employed tax status “strongly suggest[ed]” independent
contractor status). The current record is inconclusive on this factor.
(14)

Economic Realities

The fact that the contract states that it creates an independent contractor relationship and
not an employer-employee relationship weighs in favor of independent contractor status.
Glascock, 698 F.3d at 699. So does the fact that Defendant did not grant leave. Id.; Schwieger,
207 F.3d at 486. However, it is unclear whether the method of termination weighs in favor of
independent contractor status. Although the contract does not state that it is terminable at will, it
does allow Defendant unilateral discretion not to renew after the first one-year term. See Glascock,
698 F.3d at 699 (holding that the at-will nature of employment weighed in favor of independent
contractor status); Schwieger, 207 F.3d at 486 (same). Likewise, it is unclear whether Plaintiff
could or did work as a dental hygienist elsewhere during the relevant time. See Alexander, 768
F.3d at 762 (holding that the fact that a pathologist held other medical employment weighed in
favor of independent contractor status).
In summary, the following issues appear to weigh in favor of independent contractor status:


Plaintiff was paid by Compass, not Defendant (factor #8);



Plaintiff did not receive benefits from Defendant (factor #12);



the contract states it creates an independent contractor relationship (factor #14); and



Defendant did not provide for leave (factor #14).

The following issues appear to weigh in favor of employee status on the current record:


Defendant controlled the manner and means of work (factor #1);



Defendant provided the tools for the job (factor #3); and



Defendant controlled Plaintiff’s work schedule (factor #7).

The remaining issues have not been addressed by Defendant and are currently inconclusive
as to whether they weigh in favor of independent contractor status:
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

the degree of skill required (factor #2);



the work location (factor #4);



the duration of the relationship (factor #5);



Defendant’s right to assign additional tasks (factor #6);



Defendant’s role in hiring and paying assistants (factor #9);



whether the work is part of Defendant’s regular business (factor #10);



how the fact that Defendant is not in “business” affects the analysis (factor #11);



Plaintiff’s tax status (factor #13);



the mechanism for termination (factor #14); and



whether Plaintiff could have or did work as a dental hygienist elsewhere during the
relevant time (factor #14).

On the current record, the Court cannot say there is no genuine issue of material fact that
Plaintiff was an independent contractor.1
III.

Discovery Stay and Scheduling Order Deadlines

In light of the Court’s ruling on Defendant’s motion, the stay entered at the
September 21, 2018 status conference is lifted. Given that the current discovery deadline has
passed, the Court directs counsel to confer and submit a joint proposed First Amended Scheduling
Order specifying new discovery and dispositive motion deadlines by November 16, 2018.
Conclusion
Accordingly, the Court ORDERS as follows:
1) Defendant’s Motion to Dismiss or for Summary Judgment (doc. 19) is DENIED
without prejudice to pursuing summary judgment following further discovery.
2) The stay of discovery is LIFTED.
3) The parties shall submit a joint proposed First Amended Scheduling Order by
November 27, 2018.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: November 13, 2018
1

Accordingly, the Court need not address Defendant’s argument that its sovereign immunity
defense is a jurisdictional issue that cannot be waived, as opposed to a merits issue under
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).

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