71 F.Supp.2d 1085 (D.Kan. 1999), 98-2401, Saxon v. Thompson Orthodontics

Docket Nº98-2401-JWL.
Citation71 F.Supp.2d 1085
Party NameLaurie SAXON, Plaintiff, v. THOMPSON ORTHODONTICS, Defendant.
Case DateAugust 19, 1999
CourtUnited States District Courts, 10th Circuit, United States District Courts. 10th Circuit. District of Kansas

Page 1085

71 F.Supp.2d 1085 (D.Kan. 1999)

Laurie SAXON, Plaintiff,

v.

THOMPSON ORTHODONTICS, Defendant.

No. 98-2401-JWL.

United States District Court, D. Kansas.

Aug. 19, 1999

Page 1086

Joseph Y. Decuyper, Jr., Kansas City, MO, for plaintiff.

James B. Jackson, Kansas City, MO, for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Plaintiff filed suit against defendant alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., arising out of her employment with defendant. This matter is presently before the court on defendant's motion for summary judgment (doc. # 12). For the reasons set forth below, defendant's motion is granted and plaintiff's complaint is dismissed in its entirety.

I. Background

Plaintiff's complaint is based on Title VII's anti-discrimination provision, which makes it unlawful for an "employer" to "refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-2(a)(1). Defendant is subject to Title VII, then, only if, at the time of the alleged discrimination, it met the statutory definition of "employer," to wit: "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." See Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 205, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997) (quoting 42 U.S.C. § 2000e(b)). 1 In its motion, defendant argues that summary judgment is appropriate on plaintiff's complaint because it is not an "employer" within the meaning of § 2000e(b) ( i.e., defendant did not have fifteen or more employees during the relevant period).

II. Discussion

A review of the limited record before the court reveals the following uncontroverted facts. Defendant Thompson Orthodontics

Page 1087

is organized as a professional corporation under the laws of Kansas. During the relevant time period, Drs. Donald, Jeffrey and Doug Thompson were the shareholders and directors of the professional corporation. The doctors received compensation based on the firm's profits, they shared responsibility for firm debts, they participated in all management decisions and set firm policy. The doctors, however, are identified as "employees" on an internal firm document. This document lists all "employees" of the corporation and sets forth year-to-date earnings and withholding information. The document indicates that the firm withheld FICA taxes for each of the doctor/shareholders. During this same period, Miriam Thompson and Grace Thompson, the wives of Drs. Donald and Jeffrey Thompson, respectively, served as decorating consultants with respect to the firm's office. Mmes. Thompson received quarterly remuneration for their services and the firm withheld FICA taxes from this remuneration. They, too, are identified on the internal document as "employees."

The parties agree that defendant does not meet the fifteen-employee minimum for purposes of Title VII coverage unless the doctor/shareholders and Mmes. Thompson are counted as employees of the firm. If the doctor/shareholders and Mmes. Thompson are not employees, then defendant does not have the requisite number of employees to constitute an "employer" within the meaning of Title VII and plaintiff's complaint must be dismissed.

A. Status of Mmes. Thompson

Courts have applied a variety of tests to determine whether a plaintiff has demonstrated an employee-employer relationship for purposes of federal anti-discrimination statutes--the common law agency inquiry; the "hybrid" common law-economic realities method; and the single employer or true economic realities test. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1069 (10th Cir.1998). The Tenth Circuit has endorsed the use of the hybrid approach for purposes of determining whether a plaintiff is an employee of a particular entity for Title VII purposes. See Lambertsen v. Utah Dep't of Corrections, 79 F.3d 1024, 1028 (10th Cir.1996). Although this approach considers the economic realities of the working relationship, "the focus of the inquiry is the employer's right to control the 'means and manner' of the worker's performance." Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 305 (10th Cir.1992) (applying hybrid test to...

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2 practice notes
  • Arvidson v. Wallace, Saunders, Austin, Brown & Enochs, Chartered, 021606 KSDC, 05-4025
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • 16 February 2006
    ...that directors and shareholders of a professional corporation were not “employees” under Title VII. Saxon v. Thompson Orthodontics, 71 F.Supp.2d 1085, 1090 (D. Kan. 1999) (Lungstrum, C.J.). Because the Tenth Circuit stated in Wheeler that the statutory definition of employee under Title VII......
  • 173 F.Supp.2d 1155 (D.N.M. 2001), 00-1439, Ortiz v. Wingard
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • 24 October 2001
    ...best suited to cases focusing on whether a plaintiff is an employee or an independent contractor. See Saxon v. Thompson Orthodontics, 71 F.Supp.2d 1085 (D.Kan.1999). The single employer test, on the other hand, extends the reach of Title VII, tending to favor plaintiffs. Lockard, 162 F.3d a......
2 cases
  • Arvidson v. Wallace, Saunders, Austin, Brown & Enochs, Chartered, 021606 KSDC, 05-4025
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • 16 February 2006
    ...that directors and shareholders of a professional corporation were not “employees” under Title VII. Saxon v. Thompson Orthodontics, 71 F.Supp.2d 1085, 1090 (D. Kan. 1999) (Lungstrum, C.J.). Because the Tenth Circuit stated in Wheeler that the statutory definition of employee under Title VII......
  • 173 F.Supp.2d 1155 (D.N.M. 2001), 00-1439, Ortiz v. Wingard
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • 24 October 2001
    ...best suited to cases focusing on whether a plaintiff is an employee or an independent contractor. See Saxon v. Thompson Orthodontics, 71 F.Supp.2d 1085 (D.Kan.1999). The single employer test, on the other hand, extends the reach of Title VII, tending to favor plaintiffs. Lockard, 162 F.3d a......