McGowan v. ABM Janitorial Services - North Central, Inc. et al
Filing
35
OPINION AND ORDER granting 28 MOTION to Dismiss; if necessary to construe the instant motion as a motion for summary judgment, the court grants summary judgment in favor of defendants. Signed by District Judge Mark S. Davis and filed on 6/29/2011. (rsim)
UNITED
STATES
DISTRICT
COURT
EASTERN DISTRICT OP VIRGINIA
JUN 2 9 2011
Norfolk Division
CMX*.. U.S. DISTRICT COURT
JENNIFER M.
McGOWAN,
Plaintiff,
Civil Action No.
v.
2:10cv388
ABM JANITORIAL SERVICES,
NORTHEAST,
INC.,
and
URSULA
BASKETT,
Defendants.
OPINION AND ORDER
This matter is currently before the Court on a 12 (b) (1)
to dismiss filed by defendants ABM Janitorial Services,
Inc.
and Ursula
Northeast,
Inc.
that
court
this
Baskett,
an
employee
(collectively
lacks
of
"ABM").
jurisdiction
over
Northeast,
ABM Janitorial
Defendants'
the
motion
Services,
motion alleges
complaint
filed
by
plaintiff Jennifer McGowan because the claims set forth therein are
preempted by Virginia's Workers' Compensation laws.
been fully briefed and is ripe for decision.
the briefs and the record,
on
the
instant
arguments
are
motion
is
adequately
After examination of
the Court has determined that a hearing
unnecessary,
presented,
and
as
the
the
the Court
GRANTS defendants'
facts
and
decisional
would not be aided significantly by oral argument.
stated herein,
The motion has
legal
process
For the reasons
motion.
I.
Facts and Procedural History
A.
Facts
For the purposes of resolving the jurisdictional issue before
the court,
the facts
are undisputed.
Plaintiff Jennifer McGowan began her employment with Bank of
America in 1997,
At
the
time
of
McGowan was
Place
in
a
and she remains a Bank of America employee today.
the
"Level
Norfolk,
conducting
accident
3
that prompted
Sales
Associate"
Virginia.
educational
Her
programs
employees in customer marketing.
America's
office
Commercial
areas
and
instant
working
at
2
suit,
Commercial
responsibilities
on-the-job
Ms.
training
included
for
new
Such training occurred in Bank of
Place.
On September 18,
at
approximately
of America's
6:00
first
on
job
the
2008,
or
the
Ms.
first
and
floors
of
2
McGowan finished teaching a class
6:30 p.m.
After class,
floor work area to pull
she went
reports
for the sales associates undergoing training.
this
fourth
to Bank
and statistics
Ms. McGowan finished
task and was in the process of leaving the first floor office
area when her accident occurred.
Bank of America's
first floor work area at 2 Commercial Place
is accessed through a set of double doors.
Just outside the double
doors is a lobby area that has a security desk and four elevators,
two on each side.
cans
At the time of the accident there were two trash
in such lobby area,
one between each set of
elevators.
At approximately 7:00 or 7:30 p.m.
McGowan
exited
the
work
area
elevator bank to her right,
the
parking
woman
on
the
employee)
As
opposite
told Ms.
McGowan,
knew
garage.
double
doors
Ms.
approached
and
2008,
the
intending to take the elevator down to
Ms.
McGowan
side
of
the
approached
hallway
the
elevators,
(purportedly
McGowan to have a good night.
an
a
ABM
According to Ms.
after she pressed the elevator button the next thing she
she
was
on
the
floor.
other bank of elevators
McGowan
on September 18,
hit
her
head
Because
Ms.
in response to
against
the
facing
the
the woman's pleasantry,
Ms.
wall
McGowan
behind
was
her
as
she
fell.
Security guards and the ABM employee immediately came over to help
Ms.
McGowan.
While still on the floor,
greasy on the floor next
and
the
injuries
Ms.
to the trash can.
she
suffered,
Ms.
As a result of her fall
McGowan
compensation claim and received workers'
Bank
of
America
lease
requires
"good
order,
excepted."
part
of
Bank
leases
of
repair
McGowan felt something
2
and
Place,
to maintain
condition,
a
workers'
compensation benefits.
Commercial
America
filed
2
and
the
Commercial
ordinary
wear
written
Place
and
in
tear
A Bank of America corporate representative deposed as
this
case
testified
that
Bank
of
America
considers
it
important to keep its facilities "clean," "safe," and "attractive,"
for associates and/or customers,
in
entered
order
into
to
a
achieve
contract
such
that
depending on the location.
goals,
requires
Bank
ABM
of
America
to provide
and
ABM
janitorial
services at 2
Commercial
Place.
Two Commercial Place is a nine-
story commercial building that is occupied almost entirely by Bank
of America.
On the first floor of the building there is commercial
office space occupied by Bank of America,
public,
a
beauty
shop,
contain
commercial
and
office
meeting/conference rooms,
work cubicles.
including
building.
Commercial
ABM
floor,
some
upper
individual
floors
offices,
supply rooms,
reception
areas
and other administrative
and
computer
rooms.
Each
and there is a one story parking garage inside
There
2
a
is
small
not
office
Commercial
a
Bank
of
America
bank
branch
in
2
space,
Place.
a
storage
The office,
area,
and
janitor
located on the
first
is used for supplies and for administrative support for the
on-site supervisor.
and
including
The
Place.
has
closets at
space
market.
There are also support areas including kitchens and
floor has restrooms,
the
small
and large open office areas divided into
break rooms on each floor,
areas,
a
a cafeteria open to the
mix
closets
chemical
on
responsible
each
cleaning
floor
for
Commercial Place,
America.
A storage room in the garage is used to store
the
but
that
cost
supplies.
are used
of
the
it charges
seat
covers,
for
has
locked
janitors'
storing vacuums.
cleaning
supplies
it
ABM is
uses
at
2
consumable items back to Bank of
Consumable items include:
trash bags,
ABM
towels,
sanitary napkins,
At the time of Ms. McGowan's accident,
toilet paper,
tissues,
and hand soap.
ABM's cleaning routine
was
divided
operations
into
were
day
operations
provided
and
from
8
night
a.m.
operations were provided from 6 p.m.
to
ABM
to
two
provided
a
supervisor was
to
any
work
responsible
break
responsible
for
rooms,
orders
supervisor
orders
and
came
restocking
the
in.
night
vacuuming,
day
the
entrance door glass,
called-in,
and
functions.
dusting,
a
night
collecting trash,
and
complete
shift
ABM
"utility
elevator
tracks,
employee"
and
mopped
removed
the
employees
scrubbed
Once a year,
and
all
the
vacuuming
the
ABM provided
the
necessary
functions
the
trash
kitchen
from
included
Additionally,
floors,
each
floor
Once a week,
restroom floors.
recoated
in
cleaning the kitchens on each
been collected by other ABM employees.
buffed floors and scrubbed all
were
helping with any
floor, detailing restrooms, and restocking supplies.
an
day
sweeping
day,
mopping
to
The
trash
In the evenings,
employees
The
twice
and
night
porters
removing
cleaning
were
day
floors and responding
elevators
that
and
porters.
two
restrooms,
The
During the day,
the
supervisor
janitorial
day
The
cafeteria entryway and dining room.
a
p.m.,
10 p.m.
for checking all
that
5
vacuuming
stairs weekly,
work
day
operations.
kitchen
and
cleaned
that
had
ABM employees
One a month,
break-room
ABM
floors.
ABM employees stripped and waxed floors and shampooed
carpets.
Notwithstanding
perform
all
the
the
cleaning
detailed
in
the
cleaning
building.
routine,
At
the
ABM
time
did
not
of
the
accident,
and
companies
exterior
other than ABM handled cleaning the interior
windows
and
building.
Additionally,
building,
someone
took
construction areas.
public cafeteria,
areas
of
services
else
the
live
responsible
in
the
performed
was
plants
in
the
for
cleaning
Although ABM cleaned the common areas
at
responsible
America's
2
the
ABM also did not provide any janitorial
direct
Commercial
employees
Place.
for keeping his
involve placing things
themselves
of
floor of 2
Place.
of
bin.
the
it did not clean behind the food line or the work
to the market or the beauty shop on the first
Bank
trash
of
construction
was
the cafeteria.
Commercial
services
if
care
Each
performed
employee
no
was,
janitorial
of
or her own work area clean,
course,
which may
in a trash can or in a special confidential
Additionally,
employees
would
often
clean
up
after
in the common break-rooms.
B.
The instant suit was
Procedural History
initially filed in the Circuit Court for
the City of Norfolk, Virginia.
It was removed to the United States
District Court for the Eastern District of Virginia and assigned to
the
undersigned
judge.
Defendants
dismiss for lack of jurisdiction.
opposition and defendants
matter
is
ripe
for
review.
thereafter
Plaintiff
filed
a
motion
to
filed a memorandum in
filed a reply brief.
Accordingly,
this
II.
"The
district
limited
subject
Vuwuru
v.
district
Jadhav,
Constitution
subject
courts
matter
courts
555
of
matter
the
United
States
jurisdiction."
F.3d
337,
only possess
and
dismissed."
Standard of Review
federal
Cir.
jurisdiction
statute,
jurisdiction
{4th
"when
over
an
a
courts
States
United
347
the
are
ex
2009).
action,
rel.
Because
authorized by
district
the
of
court
action
the
lacks
must
be
Id.
When the existence of subject matter jurisdiction "in fact" is
challenged
by
a
defendant,
jurisdictional
facts
the plaintiff.
Id.;
1982).
In
are
not
facts
Adams v.
a
and
Bain.
a
facts
of
697
12(b)(l)
the
intertwined,
allegations of
burden
a preponderance
resolving
jurisdictional
case
by
the
Vuwuru.
consider
evidence
summary
647
(4th
R.R.
Co.
12 (b) (1)
facts
judgment."
Cir.
v.
the
evidence
motion,
central
district
1219
court
long
the
merits
may
"go
1999)
555
F.3d
"without
Evans
(quoting
United States.
945
v.
at
348.
as
converting
B.F.
the
beyond
the
district
F.2d 765,
facts
such as
court
may
the proceeding to one
Perkins
Richmond.
the
of
the pleadings,
A
on
(4th Cir.
as
to
the
falls
the complaint and resolve the jurisdictional
affidavits."
for
establishing
F.2d 1213,
in dispute by considering evidence outside
such
of
Co.,
166
Fredericksbura
768
(4th Cir.
F.3d
&
642,
Potomac
1991)).
A
motion to dismiss should be granted if the jurisdictional
reveal
that
"the
moving party
is
entitled
to
prevail
as
a
matter of
law."
Id.
(quoting Richmond.
R.R. Co.,
945 F.2d at 768) .x
III.
The
Virginia
Workers'
Fredericksbura & Potomac
Discussion
Compensation
Act
provides
exclusive
rights and remedies to employees that have been injured during the
course
of
their
employment.
Va.
Code Ann.
§
65.2-307 (A).
"The
fundamental purpose of the Virginia Workers' Compensation Act is to
give compensation for accidental injuries arising out of and in the
course of employment without regard to fault."
Stone v.
Allstate
1 The parties agree that the issue before the court is
jurisdictional, and is therefore properly considered pursuant to
Rule 12(b)(l) of the Federal Rules of Civil Procedure.
Because
the Fourth Circuit has affirmed a 12(b)(1) dismissal for lack of
subject matter jurisdiction in a similar Virginia Workers
Compensation Act case, this court conducts a Rule 12(b)(l)
analysis.
See Evans, 166 F.3d at 647-50.
However, this court
acknowledges that, subsequent to Evans, some district courts have
raised questions regarding the propriety of classifying the
instant dispute as "jurisdictional."
See Harvard v. Perdue
Farms, Inc., 403 F. Supp. 2d. 462, 464-65 (D. Md. 2005)
(indicating that although the Virginia courts treat this issue as
jurisdictional, federal jurisdictional rules do not "import such
Virginia procedural law into its jurisprudence"); Graves v. Cook,
No. 7:01cv533, 2002 U.S. Dist. LEXIS 6794, at *1 n.l {W.D. Va.
Apr. 17, 2002)
(unpublished)
(converting a 12{b)(l) motion to
dismiss into a motion for summary judgment because the district
court had diversity jurisdiction over the case, and "[i]f the
court were to consider the Virginia Workers' Compensation Bar as
a jurisdictional question, then the Virginia General Assembly
would effectively determine the limits of federal jurisdiction").
This court need not reach the question of whether conversion into
summary judgment is required because the material facts before
the court are undisputed, and all parties have had ample
opportunity to conduct discovery and submit any materials
pertinent to the issue before the court.
Were this court to
treat the pending motion as a Rule 56 motion for summary
judgment, the result would be same - judgment for defendants and
termination of this action.
8
Ins.
May
Co.,
3,
No.
1700-10-3,
2011)
Workers'
2011 Va.
(unpublished)
Compensation:
App.
{citing
LEXIS
Lawrence
Law and Practice 1-3
150,
J.
at
*9
{Va.
Pascal,
(3d ed.
App.
Virginia
2000)).
While
an employee injured in the course of her employment surrenders the
right
to bring a common law damage suit
against her
employer,
in
exchange she receives all the benefits of the Workers' Compensation
Act without
the burden of
See Feitia v.
Chalklev.
establishing her employer's negligence.
185 Va.
96,
98,
38
S.E.2d 73,
73-74
(1946)
(describing the Virginia Workers' Compensation Act as follows:
employee
accept
surrenders
an
his
arbitrary
compensation
security.
for
The
employer and the
right
amount
the
injuries
issue
of
trial
by
negligence
essence,
by
jury
statute
sustained.
fellow servants
In
a
fixed
delayed litigation is avoided.
guaranteed.").
to
is
or
in
He
and
agrees
lieu
gains
non-negligence
eliminated.
Long,
"The
of
a
to
full
wider
of
the
costly and
A smaller but speedier recovery is
under
the Workers'
Compensation Act,
the employer has agreed to unconditional liability in exchange for
limiting the amount of
liability.
The limitations of remedies imposed on an injured employee by
the Virginia Workers'
suits
fact
against
that
tortfeasor
a
Compensation Act are not applicable only to
the employee's
plaintiff
does
not
is
immediate employer.
not
directly
automatically
mean
maintain a tort suit against such party.
employed
that
such
Therefore,
by
an
the
alleged
plaintiff
can
In addition to the bar to
recovery
against
Workers'
tort
a
plaintiff's
Compensation
action
against
Act
a
"statutory employer."
actual
prohibits
party
who
an
is
employer,
employee
deemed
to
the
Virginia
from bringing
be
the
a
employee's
As explained by the Virginia Supreme Court:
Under certain circumstances,
Code §
65.2-302 extends
. . . immunity from tort liability arising from workplace
accidents to qualifying employers, even though no direct
common
law
contract
of
employment
exists
between
such
employers and employees.
An employer qualifies for this
immunity if the employer, acting as a general contractor,
contracts
with
another
to
perform
all
or
part
of
the
employer's trade, business or occupation.
Under these
circumstances,
the
employer
is
deemed the statutory
employer of the employees of such other subcontractor
and
the
remedies
under
the
Act
are
the
statutory
employees'
exclusive
remedy
against
the
statutory
employer.
See id.; Evans v. Hook. 239 Va. 127, 131, 387
S.E.2d 777, 779 (1990); Smith v. Horn. 232 Va. 302, 306,
351
S.E.2d 14,
16
(1986).
Similarly,
employees
of
different subcontractors who are working on the same
project and are also engaged in the general contractor's
trade, business, or occupation are considered statutory
fellow employees and are entitled to protection from an
independent tort action for injuries allegedly caused by
either of them.
Hudson v.
An
Jarrett.
exception
Workers'
to
Va.
the
24,
29-30,
606
S.E.2d 827,
exclusivity provisions
of
829
the
(2005).
Virginia
Compensation Act permits a plaintiff to recover against a
non-employer
injuries.
Virginia
"other
Va.
has
patterns,
party,"
269
to
Code
adopted
party"
Ann.
§
three
determine
thereby
that
if
subjecting
for plaintiff's injuries.
is
responsible
65.2-309(A).
tests,
a
applicable
defendant
such
The
10
plaintiff's
Supreme
in
Court
different
qualifies
defendant
See Stone v.
for
as
to potential
Door-Man Ufa.
an
of
fact
"other
liability
Co..
260 Va.
406,
415-18,
tests:
537
S.E.2d 305,
the "normal work"
and the
"stranger
"stranger
to
employee of
to
the
309-311
test;
test).
test
a business brings
is
"stranger
to
of
the Virginia Code,
is
"a stranger to
a personal
the work"
Co. .
the
229
these
test
three tests,
when,
as
here,
the
an
injury action against a
the business.
is
test;
Id.
at 418-19.
derived from the language
and asks whether the subcontractor defendant
trade,
plaintiff was involved."
Erection
Of
applicable
subcontractor hired by the owner of
The
(discussing the three
the "subcontracted fraction"
the work"
work"
(2000)
Va.
occupation,
Id.
164,
at 418
167,
327
or business
in which the
(quoting Whalen v.
S.E.2d
102,
104
Dean Steel
(1985)).
As
explained in more detail by the Virginia Supreme Court:
The
test
is
not
whether
the
owner,
by
engaging
an
independent
contractor
to perform some part
of
his
business,
thereby
engages
in
the
business
of
the
independent contractor.
It is whether the independent
contractor is performing work that is part of the trade,
business or occupation of the owner.
If he is, and in
doing the work injures an employee of the owner, then the
independent contractor, in the same fashion as any other
employee of the owner, is not a third party against whom
the injured employee's right of action is preserved; but
the employee so injured is limited to the compensation
provided by the Workmen's Compensation law ....
Fowler
v.
S.E.2d
312,
274,
123
Int'l
315
Cleaning
(2000)
S.E.2d 369,
Here,
plaintiff
372
Service.
(quoting
Inc..
260
Va.
421,
Flovd v.
Mitchell,
acknowledges
that
203
427,
Va.
537
269,
(1962)).
is
clearly
barred from recovering from Bank of America,
her employer,
based on
the
Workers'
exclusivity
McGowan
provision
of
the
11
Virginia
she
Compensation
Act.
The
recover
question
from
America.
ABM,
before
a
court
janitorial
provide
engaged
in
'depends
upon
trade,
the
whether
guidance,
and
McGowan
hired
test.
Mw]hether
occupation,
facts
Ms.
by
can
Bank
of
the court is guided by Virginia
"stranger to the work"
compelling
the
is
subcontractor
To answer this question,
case law applying the
cases
the
or
a
business
circumstances
in
Although such
third
of
each
party
the
is
employer
case,
and
for
that reason the question does not readily yield to categorical or
absolute
557,
standards.'"
559,
331 S.E.2d 453,
McRevnolds,
216 Va.
Whalen.
Va.
work'
Conlin v.
229
test,
at
897,
168,
455
(1985)
902,
327
Turner's
224
Express.
Inc.,
229
Va.
(quoting Bassett Furniture v.
S.E.2d 323,
S.E.2d at
applied to varying facts,
105
326
("The
(1976));
see
'stranger
to
the
necessarily produces varying
results.").
The parties
agree
that
the most
factually analogous Virginia
Supreme Court case to the instant facts is Fowler v.
Service.
The
plaintiff
in
Fowler
furniture store who slipped on a
was
"wet-mopped"
Fowler,
At the time of the accident,
to
provide
store
for
store was
cleaning
and
260 Va.
janitorial
three
open.
424,
at
employee
of
a
Sears
in the store after it
International Cleaning Service
at
423-24,
537
S.E.2d at
313.
International had been under contract
approximately
Id.
an
tile-floor
by an employee of
("International").
was
Int'l Cleaning
services
years,
537
12
the
at
entire
S.E.2d at
313.
Sears'
period
furniture
that
the
International's
services
were
defined
by
Sears'
guidelines,
and
International
"regularly cleaned the store on Mondays and Fridays of each week,
spending
two
to
hours Sears'
janitor's
and although
carry
closets.
towels,
Sears'
they did
trash
to
Unsurprisingly,
but
hand soap
clean
the
up
work area
safe."
accomplish
such
goal,
In
Id^,
Supreme Court
537
it
the
above
for
Sears
store,
or mop
sweep
the warehouse,
537
S.E.2d at 313.
"a
key
425,
"part
making
537
of
a
facts
store
S.E.2d
good
at
"clean,
313.
employee's
appearance
to
To
job
the
to
the
applicable
test,
the
International was not a
of selling furniture."
The Court noted that in making such
consideration
essential
the
every
*particular business'
janitorial
of
313.
537 S.E.2d at 315.
an
313.
the
Id.,
concluded that
Id.
'performing
closets.
at
in
to Sears'
and
at
it kept in
the bathrooms
clean
themselves,
was
"'stranger'
cleaning
that
toilet paper
and other parts
S.E.2d at
of Virginia
determination,
S.E.2d
S.E.2d at 313.
and occasionally borrowed a vacuum
Id^.
participate
applying
at 428,
537
Sears considered it important to keep not only its
its
to
and
after
janitor's
and
public."
Id..
537
did not
dumpsters,
attractive,
description
Id. ,
employees
from International's
showroom,
store during the same
furnished its own cleaning supplies
provided paper
floors,
the
employees were on the job."
International
unlocked
three hours per day at
[was]
services
to
part'
Sears'
of
13
whether,
Sears,
in providing
International
furniture
was
business."
Id..
537 S.E.2d at 315
at 105).
that
(quoting Whalen.
229 Va.
at 169,
327 S.E.2d
The Court found that the facts sufficiently demonstrated
n[t]he
designed
combined
to
efforts
accomplish
of
Sears'
International
goal
of
making
and
its
Sears
store
were
clean,
attractive and safe - a goal necessary to the successful operation
of
Sears'
furniture business."
Here,
ABM
highlights
Id. ,
the
537
S.E.2d at 316.
factual
similarities
to
Fowler,
including:
(1)
the floors
is allegedly at fault for the plaintiff employee's fall
in
the
a janitorial subcontractor responsible for cleaning
workplace;
(2)
a
business
owner
dictating
to
the
subcontractor the location and extent of the required cleaning;
the
owner paying
and hand soap;
keep
the
for
consumable
and (4)
premises
items
including
towels,
(3)
tissues,
the business owner considers it important to
clean,
safe,
and
attractive.
Further
similarities include the fact that the public utilized portions of
the
premises
cleaned
by
the
subcontractor
and
that
the
subcontractor was provided space on the premises to store its tools
and supplies.
America
was
Additionally,
required
further demonstrates
by
ABM argues that the fact that Bank of
its
that
lease
to
keep
the janitorial
Bank of America's business
at
2
the
building
function is
Commercial
clean
essential
to
Place.
In contrast to the above, plaintiff McGowan highlights several
differences
including:
between
(1)
the
the
facts
retail
of
Fowler
furniture
14
store
and
in
the
instant
Fowler
facts,
operated
to
generate sales to the public, whereas Bank of America's operations
at 2 Commercial Place do not include a bank branch, and are instead
primarily private company offices;
(2)
actively
participated
the
performs
the janitorial
America employees;
closets
and
warning
signs,
(3)
directly
in
cleaning
Sears'
employees in Fowler
store,
whereas
here,
ABM
functions without assistance from Bank of
in Fowler, Sears had access to the janitors'
provided
whereas
here,
consumable
ABM
keeps
items
its
and
janitorial
janitorial
closets
locked and ABM provides the consumable items that are later billed
back
to
Bank
responsible
public,"
of
to
America;
and
participate
whereas here,
(4)
in
in
Fowler,
"making
a
every
good
employee
appearance
Bank of America employees
was
to
the
do not have such
responsibility as the general public does not come to 2 Commercial
Place to transact business with Bank of America.
McGowan argues
that
Bank
of
America's
Additionally, Ms.
contractual
requirement
to
keep 2 Commercial Place clean does not make ABM "necessary"
to Bank
of
heating
America's
and air,
business,
if
it
did,
plumbing,
electricity,
and other similar services would always be deemed part of
a company's trade,
business,
are generally viewed as
After
considering
or occupation,
"essential"
the
above
because these services
to a business's
arguments,
the
operation.
court
finds
that
the case-specific facts before the court establish that ABM is not
a
"stranger"
First,
to Bank of
although
in
America's business
contrast with
15
the
facts
at
of
2
Commercial
Fowler,
this
place.
court
puts minimal weight on the fact that the premises at issue is not
kept
clean by
"joint
subcontractors.
efforts"
Although
the
heavily on the
"joint efforts"
construe
reliance
such
efforts."
Rather,
of
as
Bank
of
Fowler
America
opinion
in that case,
creating
a
employees
appears
this
to
and
rely
court does not
prerequisite
of
"joint
this court construes the Fowler court's focus on
"joint efforts" as a means to demonstrate the importance of keeping
Sears'
premises clean,
safe,
and attractive.
Stated differently,
keeping the Sears store in such condition was so important to the
business
day,
owner that employees
and
perform
an
outside
additional
cleaning
took steps
company
cleaning.
came
Although
demonstrate the importance of such tasks
case,
in other
fact patterns,
to clean the store each
an
in
such
to
equally
subcontracted entirely to a third-party.2
twice
a
"joint
to
efforts"
the business
important
week
in that
task may be
Accordingly,
here,
the
lack of joint efforts does not reduce the importance of ABM's work.
2 The court can hypothesize scenarios where rather than
minimizing the importance of a task, relying entirely on
subcontractors to perform an essential business function actually
underscores the importance of such function.
Thus, just as
"joint efforts" can demonstrate that an undertaking is essential
to a business, leaving an essential function entirely to a
subcontractor with expertise in such area can likewise
demonstrate that such function is mission critical.
By way of
example, having on-site, around the clock armed security may be
absolutely essential to a certain type of business, yet rather
than relying on its own employees to "jointly" participate in
such task,
the business may subcontract such specialized function
successful
daily operation of
entirely to a third-party with established experience in such
field.
On such facts, the lack of "joint efforts" in no way
minimizes the necessity of the security function to the
the business.
16
Second,
the
although keeping Sears'
benefit
importance
of
prospective
than
keeping
2
retail store "attractive"
furniture
buyers
Commercial
Place
may
be
of
and safe for its numerous employees,
The undisputed facts
the public,
establish that almost all
the
large
scale
commercial
operation
at
supports Bank of America's claim that it was
facilities
public,
"clean,"
"safe,"
and
attractive
and the size
location plainly
important to keep its
not
only
for
the
It is difficult to conceive
how such a nine-story commercial building,
public spaces,
of
of the nine floors
such
"attractive,"
but for its many associates.
Bank
and any invitees.
at 2 Commercial Place are occupied by Bank of America,
of
greater
attractive,
America is nevertheless motivated to keep its premises
for
with both private and
including a lobby and cafeteria,
could effectively
operate without someone providing daily janitorial functions.
Third,
Bank of America,
required by contract
as opposed to the building owner,
to keep
repair and condition."
2
Commercial
As in Fowler,
here,
Place
in
is
"good order,
the business owner is
responsible for covering the cost of the janitorial subcontractor.
Additionally,
both
paid
the business owners in Fowler and the instant matter
for
the
cost
tissues, and hand soap.
Place,
between
numerous
consumable
items
including
towels,
Even without a bank branch at 2 Commercial
the public
employees
incentive,
of
working
cafeteria on
above,
Bank
contractual and otherwise,
17
the
of
first
floor,
America
has
and the
a
strong
to keep the premises clean.
Fourth,
the court finds that the extent of the janitorial work
performed by ABM,
contract,
which
required by
the
Bank
of
America/ABM
to be a compelling factor supporting the finding that ABM
was not a "stranger"
of
was
to Bank of America's business.
America provided ABM with
a
detailed
list
both during and after regular business hours.
cleaning
required
the
presence
of
multiple
of
Notably,
areas
to
Bank
clean,
This detailed daily
ABM
employees,
split
into a day-shift and night-shift, whereby ABM was actively cleaning
the
building
for
13
hours
each
regular
workday.3
ABM's
responsibilities included cleaning and stocking bathrooms,
the stairs and elevators clean,
cleaning the kitchens/break-rooms,
vacuuming and dusting the upper
the
entry
floor,
door
glass,
keeping
floors
collecting
of
and
the building,
removing
trash
cleaning
from
each
and cleaning the area of the cafeteria open to the public.
Notable
to
the
court
is
not
only
the
sheer
cleaned,
and the fact that some areas were open to the public,
the fact
that
Bank of America determined that
was necessary each and every day.
business relationship in Fowler,
size
America was for a three year term.
one
or
more
3 In contrast,
typically on Sears'
hours
each day.
ABM
employees
area
but
like the long-term
ABM's contract with Bank of
Far from being a "stranger"
Bank of America's business at 2 Commercial Place,
days,
the
extensive cleaning
Furthermore,
here,
of
were
engaged
to
on most business
in
some
form
of
the janitorial subcontractors in Fowler were
premises only twice a week for two to three
18
cleaning
most
from
full-time
usual"
p.m.,
America
likely a
Commercial
Inc.,
of
56 Va.
supports
the
Place.
Cir.
Virginia
employees
longer period
309,
cases
above
were
in
than
"business
2
of
10
building.
review
further
Bank
until
the
at
Specialists.
A
a.m.
ABM's ongoing daily work functions suggest
Accordingly,
as
8
Stoddart
311
Floor
Care
(Danville 2001).
decided
analysis.
v.
subsequent
In Anderson v.
to
Fowler
Pillow,
the
Supreme Court of Virginia affirmed the Circuit Court's finding that
subcontractor Waste Management was not a "stranger" to the business
of
Virginia
Internataional
Terminals
contractually responsible for managing,
("VIT"),
operating,
the business of Norfolk International Terminal
v. Pillow.
262 Va.
"commercial
commercial
port
797,
799,
whose
freight,
553 S.E.2d 526,
operations
storing
include
commercial
a
and conducting
("NIT").
Anderson
(2001).
NIT is a
527
loading
freight
breaking down freight from shipping containers,
corporation
and
in
unloading
warehouses,
removing shipping
material from freight, and general maintenance of port facilities."
IcL_ at
case,
800,
553
removal
essential
of
part
S.E.2d
at
S.E.2d at
The
According
shipping debris and waste
of
VIT's
maintaining NIT in a clean,
553
527.
business
of
to
an
affiant
from the port
operating
the
safe and orderly manner .
.
in
the
"was an
port
.
."
and
id. ,
527.
plaintiff
in
Anderson,
a
VIT
employee,
was
injured
by
subcontractor Waste Management while such subcontractor was in the
19
process
of
emptying
"Monday
through
large
Friday
trash
of
containers
each
emptied such trash containers,
week"
Id.
safe,
at
the port.
Management
test,
truck
shipping debris
at 800-01,
Applying the "stranger to the work"
determined that in order to
clean,
Waste
thereby "remov[ing]
and waste from the terminal premises."
at 528.
a
located
553
S.E.2d
the trial court
"reasonably operate the terminal in a
and orderly manner,
the premises had to be kept
free
of large quantities of shipping debris and waste generated daily."
Id.
at
801,
553
S.E.2d at
528.
The Virginia Supreme Court agreed
with such conclusion, noting that VIT could have elected to buy its
own equipment to remove waste from the port, but it instead elected
to subcontract such function to Waste Management.
S.E.2d at
Waste
528.
The
fact
Management's
that VIT was
Fees
for
maintaining
S.E.2d at
The
Court
529.
Waste Management merely
Management's
role
and
therefore
be
553
S.E.2d at
"commercial"
529.
concluded
deemed
operation and maintenance of th[e]
Notably,
NIT."
that,
that VIT
merely
that
held open
to
to pay
Id. .
even
.
.
553
though
filled,
incidental
the port
553
'overarching
terminal facility .
the fact
and apparently not
VIT's
operating
emptied dumpsters
"cannot
at 802,
the party required
"emphasize[d]
responsibility'
Id.
Waste
to
."
the
id. .
facility was
the public did not
prevent the Court from concluding that keeping such facility clean,
safe,
and orderly was
Similarly,
here,
essential
to the business.
Bank of America was contractually obligated
20
to
maintain
2
Commercial
Like Anderson,
here,
Place
the
in
a
essential
clean
nature
and
of
orderly
the
fashion.
subcontractor's
function is demonstrated by the fact that the subcontractor's work
was required to be performed each and every regular business dav.
Furthermore,
responsible
the
fact
for
paying
cleaning/trash pickup,
premises
owner,
responsibility"
performed
as
Bank
the
trash
America,
subcontractors
opposed to such
emphasizes
such
to
a
the above
like
VTT,
was
associated
fees
with
being paid by
parties'
more
similarities,
involved,
function than VIT's subcontractor.
the
of
the
"overarching
for properly maintaining the premises.
In addition
ABM
that
dumpsters
after VIT
time
the court notes
consuming,
and
that
complete
Waste Management merely emptied
"collect[ed]
the
debris
and waste
generated by the operations and maintenance function throughout the
terminal."
Id^.,
553
S.E.2d at 528.
Waste Management's
function
was therefore only "the final part of VIT's own responsibility to
maintain the premises free of debris and waste."
at
528
trash
(emphasis
from
each
added).
waste
commercial
building.
otherwise
kept
the
In contrast,
basket
on
Furthermore,
entire
each
Id..
553 S.E.2d
ABM collected and removed
floor
of
the
nine
story
ABM cleaned and vacuumed and
premises
free
of
debris.
ABM's
completion of such tasks appear to have taken far more time than
Waste
Management's
ABM's
work was
function,
essential
to
a
factor
Bank
21
of
that
further
America's
daily
reveals
that
operations.
Additionally,
open
to
open
the
to
unlike
public,
the
at
least
public,
served/protected
Another
supports
the port,
which does not appear to have been
portion
ABM's
and
a
job
the safety of
of
was
Cir.
similar
post-Fowler
court's
conclusion
involves
3 09.
injured
restroom
medical
case
services
transcriptionist
likewise
services
the plaintiff,
she
slipped
on
Clinic's
to
patients,
that
worked
frequented by patients,
directly
that
{"Clinic").
The
floor.
is
janitorial
a
In Stoddart,
when
Place
the public.
factually
this
at
Commercial
responsibilities
company hired to clean a urology clinic
Va.
2
a
wet
primary
and
in
mission
area
56
a Clinic employee,
substance
although
an
Stoddart.
the
on
was
a
to
Clinic
provide
plaintiff
away
from
was
the
a
areas
a Clinic representative testified that it
was important that the medical facility be kept clean,
id. at 311.
The
Clinic
subcontracted
essentially
janitorial
responsible
for
subcontractor's equipment,
company
all
hired
cleaning
by
the
services,
including vacuums and mops,
in janitorial storage areas on the Clinic's premises.
The
janitorial
daily basis.
The
services
Id.
at
plaintiff
were provided by
Clinic
goods,
and
in
Stoddart
provided professional
the
fact
the
was stored
Id.
at 310.
the subcontractor on a
311.
argued
differentiated the case from Fowler,
the
and
was
that
22
several
facts
including both the fact that
services,
Clinic
that
as
employees
opposed
did
not
to
retail
"jointly"
participate in cleaning.
However,
held
employees
were
not
reaching
such
conclusion,
that
Clinic's
the
janitorial
business.
In
the circuit
court nevertheless
"strangers"
to
the
the
court
explained:
Although
Clinic
provides
specialized
professional
services, [the Clinic representative] testified that if
an independent contractor did not provide janitorial
services, Clinic would have to hire staff to perform such
services.
It comes as no surprise that individuals
seeking medical attention would expect clean and orderlyexamination and treatment facilities,
fSubcontractor!
Floor Care provides janitorial services each regular
business dav and more extensive services on a periodic
basis.
Floor Care is certainly not a stranger to Clinic.
To the contrary, daily janitorial service is the norm and
constitutes
business
as
usual
for
Clinic.
Clinic
actually purchases supplies used by
access to Floor Care's equipment.
Floor Care and has
Clinic's employees
were expected to clean up certain spills and messes under
certain conditions.
The fact that most of Clinic's basic
janitorial needs are provided by independent contractors
does not in and of itself mean that services provided by
Floor Care are unnecessary or that there is insufficient
"joint"
activity to avoid application of
the Act's
exclusivity bar.
. . . . If janitorial services were unnecessary to the
ongoing operation
of
a medical
practice,
it
seems
unlikely that Clinic would pay the considerable fees and
costs required by its contract with Floor Care. . . .
Id.
at
311-12
{emphasis
Similarly,
here,
added).
Bank
of
entire cleaning function to ABM,
America
essentially
delegated
its janitorial subcontractor.
the
ABM
kept cleaning supplies and tools on Bank of America's premises and
even had a
small
office
there.
Although Bank of America did not
have a bank branch on the premises,
the
premises
clean
and
safe
for
23
it was still important to keep
associates
and
the
public.
Furthermore,
in both Stoddart and the instant matter the essential
nature of the subcontractor's
function is demonstrated by:
subcontractor's
of
presumably
performance
constituted
substantial
"considerable
functions
fees,";
(1)
for
(2)
and
what
the
subcontractor's daily presence on the employer's premises.
cases,
the
regular
subcontractor
business
basis."
Id.
day
"provide[d]
and
more
Accordingly,
[Bank of America].
To
extensive
"[ABM]
the
janitorial
at
on
a
each
periodic
is certainly not a stranger to
contrary,
daily janitorial
the norm and constitutes business as usual
Id.
In both
services
services
the
for
service
is
[Bank of America] ."
311.
Based
on
the
"stranger"
to
Bank
finding,
the
forgoing,
of
Virginia
the
America's
court
finds
business.
Worker's
As
Compensation
prevents plaintiff from recovering from ABM.
motion to dismiss
is
the
reasons
a
ABM
is
result
Act
not
of
such
statutory
Defendants'
a
bar
12(b)(1)
therefore granted.
IV.
For
that
set
Conclusion
forth
in
detail
above,
the
court
finds
that the Virginia Workers' Compensation Act statutory bar precludes
plaintiff
from
recovering
motion to dismiss
from defendant
ABM.
Accordingly,
the
is GRANTED.4
4 Alternatively,
because the facts are undisputed and the
parties have had ample opportunity to submit relevant materials
(they agreed to the submission of evidence without the need for
an evidentiary hearing), if necessary to construe the instant
motion as a motion for summary judgment, the court grants summary
24
The Clerk is REQUESTED to send a copy of this Opinion and
Order to all
IT
IS
counsel of record.
SO ORDERED.
^s
Mark S.
Davis
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
June aft , 2011
judgment in favor of defendants.
25
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