Dwyer v. The Wackenhut Corporation et al

Filing 118

OPINION AND ORDER granting 114 defendant GSA's Motion for Summary Judgment on plaintiff's hostile work environment and retaliation claims. The Clerk of Court is directed to enter judgment in favor of defendant GSA on all claims. As the claims against the other defendants have already been resolved, the Clerk of Court is further directed to close the case. Ordered by Judge Nina Gershon on 11/8/2017. (Barrett, C)

RN CLERKS OFFiCE
U.s. DISTRICT COURT E.D.NY.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------x
WINIFRED DWYER,

* NOV09 2017 *
BROOKLYN OFFICE
12 CV 1176 (NG) (VMS)

Plaintiff,
-against-

OPINION AND ORDER

TIMOTHY 0. HORNE, AS ACTING
ADMINISTRATOR OF THE GENERAL
SERVICES ADMINISTRATION,'
Defendant.
-----------------------------------------------x
GERSHON, United States District Judge:
Plaintiff, Winifred Dwyer, brings this action pursuant to Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000(e) et seq. ("Title VII"), alleging two claims against the Administrator
of the General Services Administration ("GSA"), one for a hostile work environment and the other
for retaliation. Defendant acknowledges that disputes of material fact exist regarding whether
plaintiff was in fact subjected to a hostile work environment or retaliation and moves for summary
judgment only on the grounds that: (1) plaintiff cannot sue GSA pursuant to Title VII because
GSA was not plaintiff's employer; and (2) plaintiff failed to properly exhaust her claims prior to
filing suit. For the reasons set forth below, defendant's motion is GRANTED.
I.

Facts
A.

Plaintiff's Hostile Work Environment and Retaliation Claims

Plaintiff was a security guard in a federal office building in Manhattan. The building was
managed by GSA, a federal agency, but plaintiff worked for a private security company, called
1

As of January 24, 2017, Timothy 0. Home became the Acting Administrator of GSA, and is
substituted as the sole and proper defendant in place of Dan M. Tangherlini pursuant to Fed. R.
Civ. P. 25(d).
1

G4S. On December 28, 2011, a GSA property manager named Steven Sarnecky approached
plaintiff at her post near the metal detectors and pointed at her. Sarnecky ordered her to do a fullblown anal cavity search of a male entering the screening area. 2 Plaintiff alleges that this comment
constituted sexual harassment and sex-based discrimination, as she was the only female employee
working at or near the post at that time. Plaintiff refused to conduct the search, and Sarnecky
walked to the elevator bank, which he knew would be out of view of the security cameras, and
began making sexual gestures.
Plaintiff filed a report documenting the harassment, as did other male guards working at
the time who witnessed it. Thereafter, Sarnecky began visiting plaintiff's post daily, threatening
to have her transferred, to cut her pay and cut her hours, and calling her various derogatory names.
Eventually, Sarnecky came to her post and told her she was being transferred from her unarmed
post at 201 Varick Street to an armed post at 26 Federal Plaza on his direct orders. This was a
problem for plaintiff, because she had a paralyzed trigger finger from a previous injury and she
would not be able to pass the firearms test. Her wages were cut and her hours were reduced at the
new post.
Sarnecky then had himself transferred to 26 Federal Plaza as well and began coming by
plaintiff's new post. He told her that he was the one who orchestrated her transfer, cut her hours,
and reduced her schedule. He said there would be further retaliation if she did not keep her mouth
shut, and he used highly offensive language. Plaintiff asked her supervisors at G4S why her hours
were being cut, and was told that it was done on Sarnecky's order. Plaintiff continued to complain

2

Sarnecky admits to making the comment about the anal cavity search, but claims it was a joke.
He denies any further interactions with plaintiff after December 28, 2011. As with this and all
other factual disputes, I credit plaintiff's version of the facts in accordance with the standard on a
motion for summary judgment.
2

to the EEO office at GSA, which was Sarnecky' s employer, but nothing was done to abate the
harassment. Plaintiff testified that Samecky again ordered her to be transferred, this time to
Harlem, far from her home in Brooklyn, with a further reduction in hours and wages.
B.

GSA's Involvement in Plaintiffs Employment

It is undisputed that plaintiff was hired and paid by a private company, G4S, not GSA.
Plaintiff's position is that GSA was her joint, or constructive, employer, along with G4S. The
relationship between the two entities is as follows: Plaintiff was hired as a Protective Security
Officer ("PSO") in 2003 by HWA, a private corporation which provided security guard services
at various federal buildings throughout New York City. HWA later became Wackenhut Services
Incorporated, which later became G4S. Plaintiff was employed by G4S and its predecessor
companies as a PSO from 2003 until 2013, when G4S lost the contract for PSO services in federal
buildings. At no time was plaintiff directly employed by GSA or any federal agency.
G4S and its predecessor companies were retained to provide protective services in certain
federal buildings by the Federal Protective Service, which is presently a component of the
Department of Homeland Security ("DHS"). 3 Those buildings were managed by GSA, which is
an independent federal agency that, among other things, constructs, leases, repairs, alters, and
manages real property, such as federal office buildings. To recap, plaintiff was an employee of a
private contractor, which was hired by DHS to provide security in a building managed by GSA.
Formally, GSA had very little involvement with the Protective Security Officers.' GSA
was not a signatory to the contract between the Federal Protective Service and G4S. Pursuant to

Prior to 2003, FPS was a component of GSA, but that is not the basis for plaintiff's argument
that GSA was plaintiff's employer and is not relevant to this motion.
GSA does not dispute that, if a contractor needed to enter the building to do maintenance work,
and needed to bring tools into the building, a GSA employee would either send a memo to the
Protective Security Officers or would have to come to the post and sign that contractor in.
3

that contract, G4S was to "provide and maintain all management, supervision, manpower, training,
equipment, supplies, licenses.. . pre-employment screening.. . necessary to accomplish security
guard services . . . ." Under the express language of the contract, G4S was the party responsible
for management and oversight of all activities including the assignment of Protective Security
Officers. 5 The contract between G4S and the Federal Protective Service includes a "Statement of
Work," which describes the general duties and performance requirements that G4S was required
to provide under the contract. According to the Statement of Work, the Federal Protective Service
(a component of DHS, not of GSA) issues post orders that describe the duties that Protective
Security Officers are to perform at various posts. GSA is not mentioned in the Statement of Work.
Despite the lack of formal authority, the parties dispute how much involvement GSA
actually has in the day-to-day operations of Protective Security Officers. Defendant's position is
that GSA cannot issue orders to Officers, cannot alter their duties, work locations, or hours, and
has no authority to fire officers. In support of this position, defendant cites to: (1) the testimony of
Francisco Lopez, plaintiff's G4S supervisor, who testified that a G4S supervisor would be the one
to discipline Protective Security Officers and that GSA could not instruct security officers how to
screen the visitors to a building; (2) the Statement of Work; (3) the testimony of David
Segermeister, a GSA Director who testified that GSA, and specifically Steven Samecky, had no
authority to influence the employment, duties, or hours of security officers; (4) the formal position
descriptions for a GSA Building Manager, which do not include any supervision of security
officers; and (5) the testimony of G4S project manager James Carbonaro, who testified that he
believed the contract that G4S had was with Federal Protective Service, not GSA, and that he did

Although plaintiff disputes the role of GSA, she offers no evidence contradicting the language
and meaning of the contract.

ri

not remember "anything that had to do with GSA." Defendant further points out that, in plaintiff's
EEO complaint regarding Sarnecky, she stated that Sarnecky had given her an order to conduct a
"full blown anal cavity search," but also claimed Sarnecky did not have the authority to issue her
a direct order.
Plaintiff does not argue that the Statement of Work or the formal job descriptions, which
give GSA no role in supervising, hiring, or firing security officers, are inauthentic. Plaintiff's
position is simply that—regardless of the formal relationship between GSA, DHS, and G4S—GSA
employees must have had authority, formal or otherwise, over plaintiff's hours and job location,
because it was a GSA employee, Steven Sarnecky, who, by his own admission, had her transferred
and her hours reduced to retaliate for her filing a complaint. She bases her conclusion both on
Samecky's own statements to her that he was responsible for her transfer, 6 and statements by her
supervisors at G4S that her hours were cut on Sarnecky's orders.' Plaintiff also testified that GSA
employees would tell her to change posts, including to a post operating an elevator that was outside
the scope of her post order and training, and can request that she be transferred or terminated.
With regard to plaintiff's transfer, defendant contends that, pursuant to the contract
between FPS and G4S, all G4S security posts were becoming armed posts, meaning that the officer

6

"Q: Was it your impression that [G4S Project Manager James Carbonaro] had the final say in
terms of your transfers, cutting your hours? A: No, no, no. Q: So who? A: Who has the say,
GSA, GSA orders the transfer, just like I explained to you before. Sarnecki [sic] told me after I
filed out, after I did the report on him, you're going to be transferred, your hours is going to be
cut, it was done, that shows you the level of control that GSA has over us. Whatever they say
goes." (Pl.'s Mar. 17, 2016 Dep. at 156:23-157:10.)
"Q: If you had a week where you worked 15 or 12 hours did you ask anyone why you were
given those number of hours? A: I asked all the supervisors, they told me to talk to Sarnecki[sic],
that's his order." (Pl.'s Mar. 17, 2016 Dep. at 88:22-89:1.)

who worked there needed to have, and be trained and certified to use, a firearm. 8 Defendant's
version is that plaintiff was transferred to 26 Federal Plaza because her current post was becoming
an armed post, and she was transferred along with 4 or 5 other unarmed PSO's to the last remaining
location with unarmed posts. Defendant does not explain any subsequent transfer to Harlem, nor
does it address any reduction in hours and wages.
II.

Procedural History

Plaintiff originally brought this action against G4S, G4S employees James Carbonaro,
Brian O'Connor, Ron Middleton, George Caraballo, "Sgt. Barber," and Renato Velati ("G4S
defendants"); the head of GSA, which at the time was Michael Robertson but is now Timothy 0.
Home; and Janet Napolitano, as Secretary of DHS. GSA and DHS moved to dismiss for failure to
state a claim, on the grounds that plaintiff had failed to timely file an EEO complaint regarding
her claim. The federal defendants did not make the joint employer argument they make here, and
in fact specifically conceded in their briefing papers that the question of whether plaintiff was
constructively an employee of either DHS or GSA was not ripe for resolution at the motion to
dismiss stage because discovery was needed.
The federal defendants' motion was denied as to GSA and granted as to DHS. (Feb. 20,
2014 Opinion and Order at 9.) Subsequently, all the G4S defendants were dismissed from the case
by stipulation. Thus only the claims against GSA remain.

Plaintiff purports to dispute this in her response to defendant's Rule 56.1 statement, but cites only
to an email which in fact supports defendant's allegation. (P1's R. 56.1 response ¶ 96.) Regardless,
as discussed below, I credit plaintiff's assertion that the true motivation for her transfer was
Sarnecky's retaliation for her complaint.
8

rel

III.

Discussion
A.

Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate if the
movant demonstrates that there is no genuine dispute as to any material fact, and the movant is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). "A
dispute is not genuine unless the evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Shiflett v. Scores Holding Co., Inc., 601 Fed. Appx. 28, 29 (2d Cir. 2015)
(internal quotation omitted). A court is required to "construe all evidence in the light most
favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its
favor." Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). The moving party bears the
burden of proof that no genuine issues of fact exist, but, once it satisfies this initial burden, the
burden then shifts to the nonmoving party to present evidence that there is a genuine issue for trial.
Celotex, 477 U.S. at 323. "Summary judgment is appropriate where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party." Rosenfeld v. Hostos Comly.
Coil., 554 Fed. Appx. 72, 73 (2d Cir. 2014).
B.

Title VII Claim

The "existence of an employer-employee relationship is a primary element of Title VII
claims." Gulino v. NY State Educ. Dep't., 460 F.3d 361, 370 (2d Cir. 2006). The Second Circuit
usually employs a thirteen factor test to determine whether a defendant is an employer within the
meaning of Title VII, but "only in situations that plausibly approximate an employment
relationship." O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997). If, as here, a defendant did
not hire plaintiff in the first instance or pay any portion of the plaintiff's wages, then no further
analysis is required. Id. ("a prerequisite to considering whether an individual is [an employee] is
that the individual have been hired [by the alleged employer] in the first instance"); Gulino, 460
7

F.3d at 372 ("In determining whether a person has been 'hired,' we look primarily to 'whether
[plaintiff] has received direct or indirect remuneration from the alleged employer" (quoting
Pietras v. Bd. of Fire Comm 'rs of the Farmingville Fire Dist., 180 F.3d 468, 473 (2d Cir. 1999))).
Here, it is not disputed that it was G4S and its predecessors, not GSA, that hired and paid plaintiff.
1.

Joint Employer Liability

Where a plaintiff is not a direct employee of a defendant, a defendant may still be liable
under Title VII under one of several theories. In Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d
193, 197 (2d Cir. 2005), the Circuit stated that, in the context of Title VII, there are two
"recognized doctrines that enable an employee in certain circumstances to assert liability against
an entity that is not formally his or her employer." Arculeo presented those doctrines as (1) the
"single employer" or "single integrated employer" doctrine; and (2) the "joint employer" doctrine.
Id. "A 'single employer' situation exists 'where two nominally separate entities are actually part
of a single integrated enterprise' . . . In a 'joint employer' relationship, in contrast, 'there is no
single integrated enterprise. A conclusion that employers are 'joint assumes that they are separate
legal entities, but that they . . . handle certain aspects of their employer-employee relationship
jointly." Id. at 198 (quoting Clinton's Ditch Cooperative Co. v. NLRB, 778 F.2d 132 (2d Cir.
1985)). Relying onArculeo, plaintiff primarily argues that GSA and G4S were her joint employers.
(P1's Mem. at 9-11.)
In Shifflet, the Circuit stated that it has "not yet 'fully described a test for what constitutes
joint employment in the context of Title VII." Shfflet v. Scores Holding Co., Inc., 601 Fed. Appx.

Plaintiff argues that G4S and GSA were a single employer only in one footnote. (P1's Mem. at
11 n.14.) This argument is easily rejected. GSA—an independent federal agency responsible for
providing office space to federal employees—is not involved in a single, integrated enterprise with
a private security firm. G4S is neither owned by GSA nor are they under common ownership or
management. Arculeo, 425 F.3d at 198.
8

28, 30 (2d Cir. 2015) (quoting Arculeo, 425 F.3d at 199 n.7). The Circuit did, however, note that
courts have looked to "commonality of hiring, firing, discipline, pay, insurance, records, and
supervision" in determining whether entities constitute joint employers. Id.; Griffin v. Sirva Inc.,
835 F.3d 283, 292-93 (2d Cir. 2016). 10
IV.

Analysis
An "essential element under any determination ofjoint employer status in a subcontracting

context is. . . sufficient evidence of immediate control over the employees." Clinton 's Ditch, 778
F.2d at 138. To determine the degree of immediate control over employees, I look to whether GSA
and G4S share "commonality of hiring, firing, discipline, pay, insurance, records, and
supervision." Shfflet, 601 Fed. Appx. at 30; Serv. Employees Int'l Union, Local 32BJ v. NLRB,
647 F.3d 435 5 442 (2d Cir. 2011)." The analysis "does not turn on the perceptions of the employee

10 Defendant relies heavily on Gulino, supra, where the Court of Appeals appears to have conflated
the factors applicable to the single integrated employer test with the factors applicable to
determining who is a joint employer. Later cases in the Court of Appeals confirm that the joint
employer test used in Clinton 's Ditch and Arculeo is to be used, and they ignore Gulino in that
regard. Shiffiet, 601 Fed. Appx. at 30; Griffin, 835 F.3d 292-93. Recent district court cases have
also rested on Arculeo and Clinton 's Ditch, and not on Gulino. See, e.g., Lawrence v. Intl. Business
Machine Corp., 2017 WL 3278917 at *5 (S.D.N.Y. Aug. 1, 2017); Popat v. Levy, 2017 WL
2210762 at *6_7 (W.D.N.Y. May 19, 2017); Scott v. ProClaim America, Inc., 2017 WL 1208437
at *8 n.6 (E.D.N.Y. Mar. 31, 2017). I will do the same. House v. Wackenhut Services, Inc., 2012
WL 4017334 at *10 (S.D.N.Y. 2012), also relied upon by defendant, was decided after Gulino but
before the more recent Court of Appeals cases; its analytical framework will therefore not be
followed here.

Plaintiff argues that the "extent of the employer's right to control the means and manner of the
worker's performance is the most important factor{,J" and that other factors are "of marginal
importance." (P1's Mem. at 12) (quoting Haight v. NYU Langone Medical Center Inc., 13 Civ.
4993 (LGS), 2014 WL 2933190 at * I I (S.D.N.Y. June 27, 2014)). In support of that proposition,
Haight relies only on Amarnare v. Merrill Lynch, 611 F. Supp. 344, 348 (S.D.N.Y. 1984).
Amarnare was decided before the Second Circuit had issued a decision on the joint employer
standard, and the court cited only to a D.C. Circuit case to support the proposition that control of
the manner of the worker's performance is the most important factor. Id. at 348 n. 14. That language
was not adopted by the Second Circuit in Clinton 's Ditch, Arculeo, Shfflett, or Griffin. I therefore
decline to adopt it here.
11

Es

since employee control is primarily a function of the objective relationship and understandings of
the affected employers." Martin v. Purolater Courier, 1996 WL 429016 at *4 (E.D.N.Y. July 25,

1996).
Several factors undisputedly weigh in favor of GSA. Plaintiff does not allege any facts that
would indicate that GSA has any role in G4S's hiring, maintenance of records of her hours,
handling the payroll, or providing insurance. In fact, plaintiff testified that G4S and FPS, and not
GSA, would maintain records of her postings. Finally, the collective bargaining factor does not
appear relevant here, as no collective bargaining process is alleged to have taken place between
G4S and its employees. The only factors that could weigh in plaintiff's favor are commonality of
supervision and discipline.
A.

Supervision

Plaintiff testified that GSA property managers did not work at the magnetometers, but they
would stand at the magnetometers and give her orders. Plaintiff gives three examples of such
orders. One is Sarnecky's order that she give a visitor an anal cavity search, which all parties agree
he did not have the authority to issue and which therefore does not bear on the scope of GSA's
control over PSOs. Second, as a general matter, GSA personnel had to sign-in contractors who
were bringing tools into the building to do work, so they would come to plaintiff's post to do so;
GSA, as the manager of the building, could tell PSOs that certain people should or should not be
permitted into the building. The third example is that a GSA employee ordered plaintiff to operate
an elevator that she was not trained to operate and was not part of her post order.
Where supervision "consists primarily of telling employees what work to perform, or
where and when to perform the work, but not how to perform the work," the supervision does not
support a joint employer finding. Serv. Employees Int'l Union, Local 32BJ v. NL.R.B., 647 F.3d

10

435, 443 (2d Cir. 2011)); Liotardv. Fedex Corp., 14 Civ. 2083 (NSR), 2016 WL 1071034 at *6
(S.D.N.Y. Mar. 17, 2016). Plaintiff admits she was trained on how to do her work at the X-ray
machine and the metal detector by FPS officers, who worked for DHS, not GSA. She could
sometimes be instructed to do a pat-down search, but that instruction would come from FPS or a
G4S supervisor, not GSA. It does not appear that GSA ever instructed plaintiff on how to do her
work. Rather, in keeping with the subcontractor-contractor relationship, G4S was provided with a
general statement of work to be performed, but the manner and details of how to perform the work
was left to G4S. 12 I therefore find that this factor weighs against a finding that GSA was a joint
employer of PSOs.
B.

Discipline

Plaintiff does not allege that GSA had any role in administering disciplinary procedures
(nor does she allege she went through any disciplinary procedures as it relates to this case). Plaintiff
did testify about a time she was disciplined for incorrectly filling out timesheets. The discipline
came from plaintiff's direct supervisor at G4S. She also testified that she was aware of other PSO's
being disciplined, and they would either be called to G4S project manager James Carbonaro's
office or receive it from their G4S supervisor.
Plaintiff argues, however, that her transfer and the reduction in her hours were punitive
measures meant to "discipline" her for filing a complaint against Sarnecky, and therefore GSA had
some role in initiating discipline. Sarnecky was a property manager. The formal job description of
a property manager does not mention supervising, transferring, or disciplining of PSOs. Under the

12

J note, however that the subcontractor-contractor relationship here was between G4S and DHS.
GSA was not a party to their contract and has an even more attenuated relationship with G4S than
does DHS, which at least trained PSOs.
11

Statement of Work between FPS and G4S, G4S retained the responsibility for supervision and
management of PSOs. Nonetheless, plaintiff testified that she was told it was Samecky who had
gotten her transferred and "when FPS or GSA gives the contracting company such as G4S the
order it supersedes anything that is written on paper." (Pl.'s June 7, 2016 Dep. at 94.) She further
testified that GSA has final say over her transfer and hours, using the example of Sarnecky getting
her transferred and cutting her hours as her basis for that belief. (P1.'s Mar. 17, 2016 Dep. at 8889, 157.) Reviewing all the testimony plaintiff proffers to the effect that GSA had authority to
transfer her or change her hours, and even assuming I treat plaintiff's statements as to GSA's
authority as if they were made on personal knowledge, rather than as conclusions drawn from what
she was told by others, a reasonable jury could conclude at most that Samecky requested, or even
demanded, that G4S transfer plaintiff and reduce her hours, and that G4S complied. That would
still be insufficient to make GSA a joint employer. On this point, Clinton's Ditch is instructive.
Clinton's Ditch Cooperative ran a bottling plant, which subcontracted its shipping to a
shipping company, which employed drivers. Clinton's Ditch, 778 F.2d at 133. The question in the
case was whether Clinton's Ditch was a joint employer of the drivers. The AU' 3 had found that
Clinton's Ditch was a joint employer, in part because it "effectively" disciplined drivers. While it
had no formal authority to issue discipline, Clinton's Ditch notified its members that they should
contact Clinton's Ditch if they had "any problems" with, or encountered "foul or abusive
language" from, the drivers. When it received complaints, Clinton's Ditch would complain to the
shipping company about certain drivers and expected appropriate action be taken. Id. at 138. The
ALJ found that the complaint from Clinton's Ditch to the employer, with the expectation that

The Circuit was reviewing a decision by the NLRB, which had affirmed the decision of an AU
in response to a complaint by a union over a refusal to collectively bargain. Id. at 136.
13

12

discipline would be imposed, was sufficient for this factor to weigh in favor of finding Clinton's
Ditch to be a joint employer. The Circuit disagreed and held that "any business has a legitimate
interest in determining if its subcontractor's employees have offended its customers or have
otherwise provided unsatisfactory service. . . . An employer need not mutely suffer incompetence
or misbehavior by its subcontractor's employees in order to avoid status as a joint employer." Id.
The same reasoning applies here. Even if GSA, via Samecky, requested that plaintiff be
transferred, and even if its request was acted upon by G4S, that is not in and of itself sufficient to
show a commonality of discipline and/or supervision between G4S and GSA. See, e.g., Gonzalez
v. Allied Barton Sec. Servs., 2010 WL 3766964 at *4 (S.D.N.Y. Sept. 7, 2010), report and
recommendation adopted 2010 WL 3766954 (S.D.N.Y. Sept. 27, 2010) (While DOT was
permitted to request that a guard not be assigned to its sites, AlliedBarton made the final decision
about all transfers. DOT's ability to request reassignment did not constitute an employer
relationship); McCray v. City University ofNew York, 2011

WL 1197467 at *4 ("that a government

entity requests that a security guard no longer be assigned to its work sites does not in itself give
rise to an employer-employee relationship"); Cf Jiggetts v. New York City Dep 't of Citywide
Admin. Servs., 2012 WL 231566, at *7 (S.D.N.Y. Jan. 6, 2012), report and recommendation
adopted, 2012 WL 614310 (S.D.N.Y. Feb. 27, 2012) (declining to dismiss on joint employment
grounds where plaintiff alleged that the defendant agency had the right to interview security
guards, reject proposed guards, request retraining or replacement of guards, and demand removal
of guards). The contract and Statement of Work make it clear that GSA has no direct role in
supervising, hiring, disciplining, or firing PSOs, and while Samecky made a request to G4S, and
G4S complied, plaintiff puts forth no evidence to dispute defendant's assertions that G4S had final

13

say over plaintiff's employment. No matter how forceful Sarnecky's request was, G4S retained
final authority over whether plaintiff would be transferred and what hours she would work.
After applying the joint employer test to the evidence, I find that no reasonable jury could
find that GSA was the joint employer of G4 Protective Security Officers who worked in buildings
managed by GSA. Plaintiff therefore cannot bring claims against GSA under Title VII. It is not
necessary to reach defendant's argument that plaintiff failed to timely exhaust her administrative
remedies prior to filing suit.
CONCLUSION
For the reasons discussed above, defendant GSA's motion for summary judgment on
plaintiff's hostile work environment and retaliation claims is GRANTED. The Clerk of Court is
directed to enter judgment in favor of defendant GSA on all claims. As the claims against the other
defendants have already been resolved, the Clerk of Court is further directed to close the case.

/s/

Nina Gershon

NINA GERSHON
United States District Judge

Dated: November 8, 2017
Brooklyn, New York

14