Bigby v. Big 3 Supply Co., 94CA1819

• Decision Date: 13 June 1996
• Docket Number: No. 94CA1819,94CA1819
• Parties: , 8 NDLR P 133 Roland P. BIGBY, Plaintiff-Appellant and Cross-Appellee, v. BIG 3 SUPPLY COMPANY, a Colorado Corporation; McMillan Sales Corporation, a Colorado Corporation; and Michael B. Maslanik, Defendants-Appellees and Cross-Appellants. . III
• Court: Colorado Court of Appeals

Page 794

937 P.2d 794

17 A.D.D. 212, 8 NDLR P 133

Roland P. BIGBY, Plaintiff-Appellant and Cross-Appellee, v. BIG 3 SUPPLY COMPANY, a Colorado Corporation; McMillan Sales Corporation, a Colorado Corporation; and Michael B. Maslanik Defendants-Appellees and Cross-Appellants.

No. 94CA1819.

Colorado Court of Appeals Div. III.

June 13, 1996.

As Modified on Denial of Rehearing

Aug. 29, 1996.

Certiorari Denied May 27, 1997.

Law Office of David C. Feola, David C. Feola, Denver, for Plaintiff-Appellant and Cross-Appellee.

Krieger, Hale, Frankl & Mulcahy, Keith E. Frankl, Englewood, for Defendants-Appellees and Cross-Appellants.

Opinion by Judge ROTHENBERG.

In this action premised, inter alia, on an alleged violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (1994), plaintiff, Roland Bigby, appeals the summary judgment entered in favor of his employer, Big 3 Supply Company (Big 3). Defendants, Big 3, McMillan Sales Corporation (McMillan), and Michael Maslanik, cross-appeal the judgment entered upon a jury verdict in favor of Bigby on his claims for outrageous conduct and negligent infliction of emotional distress. We reverse and remand for further proceedings.

Bigby, a journeyman plumber, was hired in 1991 by Big 3, a supplier of building materials, as a truck driver and warehouse person. Bigby's supervisors occasionally loaned him to transport materials for McMillan, another building supply company under the same management as Big 3.

In late 1992, Bigby suffered a heart attack. His doctors discharged him from the hospital after about a week of recovery with instructions that he could return to work in another week, provided he took things slowly at first. Bigby kept his supervisors informed of his condition and asked when and under what conditions he could return to work.

Bigby next saw his supervisors at the Big 3 company Christmas party. They took Bigby aside and informed him that Big 3's president, Michael Maslanik, had decided to fire him because of the heart attack. Without consulting Bigby or his doctors, Maslanik had decided Bigby could not perform the strenuous loading and unloading that the warehouse and truck driving involved, and that the company had no other positions for which he was qualified. Big 3 sent Bigby a follow-up letter confirming that: "Roland Bigby was terminated from our employ because of health reasons + management determined he was not qualified for any other position."

Bigby filed a charge of discrimination with the Equal Employment Opportunity Commission, which forwarded the claim to the Colorado Civil Rights Commission (Colorado Commission). The Colorado Commission determined that Bigby's employers had regarded him as disabled because of the heart attack and had fired him because of this disability in violation of the Colorado Anti-Discrimination Act, § 24-34-402 (1988 Repl.Vol. 10A) (CADA). Based upon this determination, the Colorado Commission sent Bigby a right to sue letter.

Bigby then filed suit against Big 3, its president Michael Maslanik, and Maslanik's other supply company, McMillan. Bigby alleged that his firing violated the ADA, the CADA, and also constituted outrageous conduct and negligent infliction of emotional distress.

At the time of Bigby's termination, the ADA applied only to employers with 25 or more employees. 42 U.S.C. § 12111(5) (1994); see Doe v. William Shapiro, Esquire, P.C., 852 F.Supp. 1246 (E.D.Pa.1994) (explaining jurisdictional thresholds under the ADA). And, although McMillan had more than 25 employees, Big 3 did not. In order to meet the ADA's jurisdictional threshold, Bigby alleged that he was an employee of McMillan as well as Big 3. The trial court rejected Bigby's combined employer theory and entered summary judgment for McMillan.

Bigby proceeded to trial on his CADA and tort claims against Big 3 and Maslanik. The trial court acted as finder of fact on the CADA claim, while a jury decided his tort claims.

The evidence at trial showed that Maslanik decided to fire Bigby on the presumption that his heart attack prevented him from working. Maslanik did not seek information concerning Bigby's actual medical condition, did not attempt to provide any reasonable accommodation for Bigby, and did not consider the fact that Bigby was qualified to work in the less strenuous but better paying job of counterman.

The trial court found that Big 3 and Maslanik had discriminated against Bigby because they perceived his heart attack to be a handicap, in violation of the CADA. The court awarded Bigby $3,839 in back pay plus court costs. The jury found for Bigby on his outrageous conduct and negligent infliction of emotional distress claims and awarded him $25,000 in compensatory damages for each claim. It also awarded Bigby $25,000 in punitive damages for the outrageous conduct claim. Based upon these findings and the jury verdict, the trial court entered judgment for Bigby.

I. Bigby's Appeal

Bigby asserts that the trial court erred in granting summary judgment against him on his ADA claim. More specifically, he contends that there is a genuine issue of material fact whether Big 3 and McMillan are the same employer for purposes of meeting the statutory threshold of 25 employees in his ADA claim. We remand for further proceedings on the ADA claim.

Using an analysis known as the "joint employer doctrine," some courts hold that, when an entity exercises sufficient control over an individual's compensation, terms, and conditions of employment, it will be considered the individual's employer, even though the individual may be directly employed by another entity as well. See Magnuson v. Peak Technical Services, Inc., 808 F.Supp. 500 (E.D.Va.1992).

Other courts have analyzed the issue of who is an employer using a "single employer" theory. Under this analysis, two separate entities are considered a single employer when they share: (1) an interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. See Frank v. U.S. West, Inc., 3 F.3d 1357 (10th Cir.1993); Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). This test can be satisfied without meeting all four prongs. Armbruster v. Quinn, 711 F.2d 1332 (6th Cir.1983).

Plaintiffs bear the burden of proving by a preponderance of evidence that their employer meets the 25 employee threshold of the ADA, but all inferences should be drawn in favor of the exercise of jurisdiction to afford plaintiffs an opportunity to establish the jurisdictional threshold at trial. Smith v. Jones Warehouse, Inc., 590 F.Supp. 1206 (N.D.Ill.1984).

At the outset, Bigby submitted deposition testimony and exhibits attempting to show the interrelationship between Big 3 and McMillan. Bigby's evidence established that: Maslanik is the president, manager, director, and part owner both of Big 3 and McMillan; Maslanik made hiring and firing decisions for both companies; at times Maslanik ordered employees of one company to work for the other; and Bigby was occasionally ordered to work for McMillan.

The trial court concluded that Bigby had alleged facts based solely upon his beliefs. It thus considered Bigby's evidence insufficient to create a genuine issue of material fact and, on September 12, 1994, the court granted summary judgment for defendants. We perceive no error in this regard.

However, on September 26, 1994, Bigby filed a motion to reconsider entry of summary judgment and for C.R.C.P. 54(b) certification. On October 24, 1994, Bigby also filed a motion to supplement his earlier motion for reconsideration with additional submissions. In the motion to supplement, Bigby alleged that defendants had produced financing statements requested in earlier interrogatories, and Bigby had had an opportunity to interview defense witnesses. From these sources, Bigby alleged that he had discovered further evidence of the companies' interrelatedness that was not available earlier.

Bigby's new submissions showed that: the companies exchanged inventory at cost and McMillan held a security interest in all of Big 3's inventory; all Big 3 employees were insured under McMillan's health plan so that McMillan considered Bigby its own employee for purposes of health insurance; and Maslanik ran both companies out of his McMillan offices because he liked to keep his financial people in the same place.

On October 24, 1994, the trial court denied Bigby's motion for reconsideration and also denied his request for certification of the order granting summary judgment as a final judgment pursuant to C.R.C.P. 54(b). However, the court did not rule on Bigby's motion to supplement which had been filed that same day.

Summary judgment is inappropriate unless there is a clear showing that no genuine issue exists as to any material fact. The burden of establishing the lack of a triable issue is upon the moving party. Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978).

Once a moving party makes a convincing showing that genuine issues of fact are lacking, the burden is on the opposing party to demonstrate by relevant and specific facts that a real controversy exists. Ginter v. Palmer & Co., supra. All doubts as to whether an issue of fact exists must be resolved against the moving party. Mancuso v. United Bank, 818 P.2d 732 (Colo.1991).

Even though a partial summary judgment may have been entered, the trial court has discretion to reconsider its ruling before the entry of final judgment. C.R.C.P. 54(b). If new evidence comes to light which raises further disputes of material fact because of the moving party's failure properly to disclose it, and the non-moving party brings the new evidence before the trial court at the first opportunity, the court should reconsider its earlier ruling. Halter v. Waco Scaffolding & Equipment Co., 797 P.2d 790 (Colo.App.1990).

In Halter, evidence came to light that had been unavailable during the...