Crump v. Tcoombs & Associates, LLC, trading as TCAssociates et al

Filing 319

MEMORANDUM ORDER: Having heard arguments from the parties at trial, the Court now memorializes its ruling, citing the legal support it discussed on the record. The Court OVERRULED the Navy's objection to Jury Instruction 32. Signed by District Judge Mark S. Davis on 3/3/2016. (bgra)

FILED
UNITED

STATES

DISTRICT

EASTERN DISTRICT

OF

COURT

MAR - 3 2016

VIRGINIA

Norfolk Division

cl:-.;k. us

»URT

•.••-:•-

•

SUMMER CRUMP,

Plaintiff,
Civil

v.

UNITED

STATES DEPT.

Action No.

2:13cv707

OF NAVY,

by and through RAY MABUS,
SECRETARY OF THE DEPT.

OF NAVY,

Defendant.

MEMORANDUM

The

jury trial

in this

case

ORDER

took place

from

February 16,

2016 through February 29, 2016.

In its earlier summary judgment

Opinion

found

and

Order,

Department of Navy
with respect
her

hearing

pursuant

the

("Navy")

to her

its

in

1973.

Op.

trial,

her

co-defendants/joint

and

TCMP

Health

65-66,

Services,

leaving the Navy

as

the

United

States

was a joint employer of Plaintiff

obligations

& Order,

that

claim that the Navy failed to accommodate

disability,

to

Court

job

under
ECF

the

No.

employer
LLC

as

a

Physician Assistant,

Rehabilitation

183.

On

TCoombs

&

("TCA")

the sole defendant

settled

at

of

morning

the

Act

of

Associates,
with

trial.

LLC

Plaintiff,

Minutes

of

Proceedings, ECF No. 304; Stipulation of Dismissal, ECF No. 318.
When

the

instructions,

Court

it

heard

adopted,

arguments

over

the

on

the

Navy's

proposed

jury

objection,

Jury

Instruction 32 regarding joint employer liability.

Having heard

arguments from the parties at

trial,

the Court now memorializes

its ruling, citing the legal support it discussed on the record.
I.

JURY

INSTRUCTION 32

Jury Instruction 32, as given to the jury, states:
A "joint employer" relationship does not create
liability in the co-employer for actions taken by
the other employer; that is, each employer is
only liable to the employee for its own actions,
not for each other's actions.

However,
a "joint employer" is
participates in the co-employer's
or

if

it

knew or

should have

liable if it
discrimination

known about

the

co-

employer's discrimination and failed to undertake
prompt corrective measures within its control.

Jury

Instruction

Proposed

Jury

liability,
regarding

32

is

a

modified

Instruction

and

incorporates

Plaintiff's

Proposed

44,

regarding

discussions
Jury

agents of a corporation or agency.1
Jury

Instructions

with

version

Authorities,

objected to Jury Instruction 32,

of

Plaintiff's

joint

with

Instruction

both
28,

employer
parties
regarding

See Plaintiff's Proposed
ECF

No.

271.

The

Navy

arguing that Jury Instruction

32 presented to the jury an incorrect statement of the law based
on the

facts

of

the case.

1 The Court ultimately rejected Plaintiff's Proposed Jury Instruction
28 because, as discussed below, the Court determined that the "knew or
should have known"
standard articulated by the EEOC Enforcement
Guidance, and relied upon by a number of courts, was a more accurate

representation of the state of the law regarding agency and joint
employer liability, particularly on the facts of this case.

II.

As

the

Court

DISCUSSION

recognized at

trial,

there

are

two views

on

the method of applying agency principles to determine whether a

joint employer is liable for discriminatory actions taken by a
co-employer.

The

first

Plaintiff's

Proposed

principles

should

liability.
1362-63

See

(11th

Jury

be

Virgo
Cir.

view,

and

Instruction

applied
v.

the

to

Riviera

1994)

one

28,

represented

argues

that

determine

joint

Beach Assoc,

30

(relying

on

agency

by

agency

employer

F.3d

1350,

principles

to

determine the extent of a joint employer's liability under Title
VII) .

The second view,

argument,

asserts

that

and the one espoused by the Navy during

a

joint employer relationship does

create vicarious liability for a co-employer.
v. Merck & Co. , 488 F.3d 34,

employer

liability

liability. ...
employee's

does

[A]

'joint

40 n.6

not

by

finding

only

See Torres-Negron

Cir.

itself

that

employers'

(1st

2007)

part,

actions.

and

found

. . .").
that

automatically create

a

The
joint

affects

each

relationship

an

employer's

for each
Navy,
does

in
not

joint employer for actions

See Whitaker v. Milwaukee County,

F.3d 802, 811 (7th Cir. 2014)
488 F.3d at 40 n.6

a

are

not

agreed with the

employer

liability in

taken by a co-employer.

Negron,

Court

vicarious

companies

liability to the employee for their own actions,
other's

("[J]oint-

implicate

two

not

772

(citing cases in support); Torres-

(" [J]oint-employer liability does not
3

by

itself

implicate

Llampallas v.

(11th

Cir.

Mini-Circuits,

1998)

technical

vicarious

(finding

outcome

of

liability."

Lab,

no

the

Inc.,

163

liability,

joint

(emphasis
F.3d

added));

1236,

1244-45

regardless

of

inquiry,

where

employer

the
a

defendant entity had no involvement in the challenged employment
action).

However,

a

number

of

courts

have

determined

that

a

joint employer may be liable for the discriminatory actions of a
co-employer

when

a

joint

employer's discrimination,
should

have

fail[ed]

known

of

employer

or

[a

if a

"participates"

joint employer

co-employer's]

in

a

co-

"[knew]

discrimination

to take corrective action within its control."

or
but

Punt v.

Kelly Servs., No. 14cv2560, 2016 WL 67654, at *14 (D. Colo. Jan.

6,

2016)

(citing Burton v.

Freescale

Semiconductor,

Inc.,

798

F.3d 222, 229 (5th Cir. 2015)); see Whitaker, 772 F.3d at 811-12

(listing cases in support).

The "knew or should have known"

standard is an "agency-like theory"

which has been repeatedly

recognized in the Title VII context.

See Smith v. Metro. Sch.

Dist.

Perry

Twp.,

128

F.3d

1014,

1022-28

(7th

Cir.

1997)

(comparing common law agency principles with the "knew or should
have

known"

standard-an

"agency-like

theory"-in the Title

VII

standard noted above,

and

context).

The

"knew or should have

known"

included in Jury Instruction 32, was articulated by the EEOC in
its 1997 Enforcement Guidance regarding contingent workers.

The

1997 EEOC Enforcement Guidance examines the specific context of

temporary employment

client

employers,

liable

if

or

and

staffing agencies

concludes

it

discrimination.

should have

failed

to

"the

participates

. . . The

knew or

that

[staffing

known

undertake

about

prompt

[staffing

in
firm]

the

sending employees

the

is

client's

corrective

also

to

firm]

is

client's
liable

if

discrimination

measures

it
and

within

its

control." 2 Equal Employment Opportunity Commission, EEOC Notice
No.

915.002,

Enforcement

Contingent Workers
Other

Staffing

[hereinafter

n.33

1997

WL

33159161,

EEOC Enforcement

(citing cases in support).

standard

was

staffing

firm

Guidance

clarified

and

regarding

Enforcement

its

to

EEO

Laws

note

Guidance"];

its

in

contingent

("ADA")

*11

(Dec.
see

3,

to

and

1997)

id.

at

*11

The "knew or should have known"

client

Guidance

Disabilities Act

Application of

Placed by Temporary Employment Agencies

Firms,

"1997

Guidance:

application

the

2000

workers.

addressed

unique

to

both

a

EEOC

Enforcement

The

2000

EEOC

Americans

with

issues not explicitly discussed in the

1997 EEOC Enforcement Guidance,

and stated that

[a] staffing firm or its client that qualifies as
an employer of a staffing firm worker may be
liable for: its own discrimination against the
2 The Court explained in its summary judgment Opinion and Order that
such guidance is entitled to deference only to the extent of its power
to persuade the Court.
Op. & Order, ECF No. 183, 66-67 n.12 (citing
Univ.

of Tex.

Butler v.
Cir.

Sw.

Med.

Drive Auto.

2015))

Ctr.
Indus,

v. Nassar,
of Am.,

133

Inc.,

S. Ct.

2517,

793 F.3d 404,

2533

(2013);

411 n.6

(4th

worker; or discrimination by the other entity if
it either: participates in the discrimination; or
knew

and

or

should

failed

to

have

known

take

of

the

corrective

discrimination

action

within

its

control.

Equal

Employment

915.002,

Opportunity

Enforcement

Contingent

Workers

Commission,

Guidance:

Placed

EEOC

Application

by

Temporary

Staffing Firms, 2000 WL 33407189,

Notice

of

the

Agencies

No.

ADA

and

to

Other

*2 (Dec. 22, 2000)(emphasis in

original)[hereinafter "2000 EEOC Enforcement Guidance"].
A

number

of

courts

have

relied upon

the

EEOC

Enforcement

Guidance quoted above and have determined that a joint employer
may

be

liable

under

the

ADA

or

Rehabilitation

Act

if

it

"participates" in a co-employer's discrimination or if the joint
employer

"knew

discrimination

control."

liable

or
and

should
failed

See Burton,

for

the

have

to

known

take

[a

corrective

798 F.3d at 229;

discriminatory

of

conduct

co-employer's]

action

within

its

("A staffing agency is

of

its

joint-employer

client if it participates in the discrimination,

or if it knows

or should have known of the client's discrimination but fails to

take corrective measures within its
772 F.3d at 812)); Whitaker,

EEOC

Enforcement

employer
because

could

Guidance

not

"nothing

in

be

control."

772 F.3d at 811-12

and

finding

liable

under

the

(citing Whitaker,

record

that

the

suggests

(citing the 1997

a

purported

joint

Rehabilitation
that

the

Act

County

participated in the alleged discriminatory conduct or failed to

take

corrective

measures

&/or Platform Learning,
(unpublished)

within

its

control");

Lima

v.

Adecco

Inc., 375 F. App'x 54, 55 (2d Cir. 2010)

(finding that an employer could not be held liable

based on the joint employer theory "because there is no evidence
that Adecco either knew or

alleged discrimination"
(2d Cir.

1995))); Punt,

should have

(citing AT&T v.

known about any of

the

NLRB,

451

67

2016 WL 67654 at *14-15

F.3d 446,

(citing the 1997

EEOC Enforcement Guidance, but finding that the plaintiff failed
to demonstrate that the joint employer engaged in discriminatory
action

and

that

the

co-employer

"knew or should have known about
to

take

Adecco,

corrective

561

F.

measures

Supp.

2d

"participated
[the]

within

162,

178

in"

or

that

it

discrimination but failed
its

control");

(D.P.R.

2008)

Medina

v.

("To prevail

under a theory of joint employer liability, plaintiff must show
that defendant knew or should have known of

the discriminatory

conduct and failed to take prompt corrective measures within its
control."

(citing Watson v.

Adecco

Supp.

1347,

Fla.

2d

Guidance));

cf.

1357

(M.D.

Sandoval

F.3d 1312, 1324 n.4

v.

Emp't

Servs.,

2003) ; 1997

Boulder

(10th Cir. 2004)

Reg'l

Inc.,

EEOC

Commc'ns

252

F.

Enforcement
Ctr.,

388

(noting that because it did

not find a joint employer relationship,

" [it] need not reach the

question of what the scope of one joint employer's vicarious

liability would be for actions of its partner in which it did
not participate or over which it had limited or no control").

Therefore,
Guidance,
this

case,

correct

based

upon

the

1997

and

2000

the persuasive authority noted above,
the

Court

statement

determined

that

Jury

of the law regarding

EEOC

Enforcement

and the facts of

Instruction 32

is a

the potential liability

of joint employers under the ADA and the Rehabilitation Act.
III.

For

the

reasons

stated

CONCLUSION

above,

the

Court

OVERRULED

the

Navy's objection to Jury Instruction 32.
It

is

SO ORDERED.

/MtiV

/s/
Mark

S.

Davis

United States District Judge

Norfolk, Virginia

March 3

, 2016