Dixon v. Burman, Civ. No. F 82-299.

• Decision Date: 12 August 1983
• Docket Number: Civ. No. F 82-299.
• Citation: 593 F. Supp. 6
• Parties: Linda M. DIXON, Plaintiff, v. Robert BURMAN and American Republic Insurance Company, Defendants.
• Court: U.S. District Court — Northern District of Indiana

593 F. Supp. 6

Linda M. DIXON, Plaintiff, v. Robert BURMAN and American Republic Insurance Company, Defendants.

Civ. No. F 82-299.

United States District Court, N.D. Indiana, Fort Wayne Division.

August 12, 1983.

Linda M. Dixon, pro se.

Ronald R. Snyder, Gregory J. Utken, Roberts, Ryder, Rogers & Neighbours, Indianapolis, Ind., Timothy E. Baker, Devoss, Scott, Johnson & Baker, Decatur, Ind., for defendants.

ORDER

LEE, District Judge.

This matter is presently before the court on the March 7, 1983, Motion for Summary Judgment by defendants, Robert Burman and American Republic Insurance Company (hereinafter defendants), and the pro se¹ plaintiff's Linda M. Dixon (hereinafter plaintiff), responses² to same. During a pre-trial conference, conducted in open court on May 10, 1983, the court addressed specific questions to both plaintiff and defendants concerning critical issues which had been identified by the court in its review of the aforementioned submissions, but which remained unresolved. It is from the parties' answers to such direct questioning and the court's analysis of the entire record before it that the court has determined that there exists no question of material fact as to plaintiff's employment status and that defendants are entitled to judgment as a matter of law. Accordingly, it is appropriate that summary judgment be entered in favor of defendants and against plaintiff. The limited facts relevant to that result and the court's basis for that conclusion are set forth below.

Facts

In January of 1981, while soliciting further applicants for the position of agent, defendants caused an advertisement to be published in the Marion, Indiana, Chronicle Tribune. That help-wanted ad invited applications for a career with management opportunities, while also promising, inter alia, complete training, financial help during training, and outstanding free fringe benefits.³

Plaintiff responded to that ad, interviewed for the position, and was subsequently enrolled by defendants in a two-week class designed to prepare such applicants for the Indiana State Insurance Exam. Plaintiff took that examination on February 14, 1981. She passed the accident and health portions, but failed the life insurance portion. On March 29, 1981, plaintiff successfully completed the remaining life insurance section. She was then hired by defendants as an agent on April 16, 1981, executing the standard "agent's contract" and addenda thereto that same date.⁴

Plaintiff began, next, a four-week training program on April 20, 1981. Her first week consisted of classroom instruction, while the remaining three weeks were devoted to supervised field training. Pursuant to an addendum to the "agent's contract", defendants advanced plaintiff $500 during the course of that training. This money was characterized as a loan under that addendum with the unpaid balance of any money so loaned to be charged to the agent's account in the thirteenth month following the date the contract was executed.⁵

Little more than one week after the conclusion of the training program, on May 25, 1981, defendants terminated their agency relationship with plaintiff for alleged nonproduction. Plaintiff, having complied with the procedural prerequisites and being in receipt of a right to sue letter, thereafter filed a timely, pro se complaint alleging that defendants wrongfully discharged her because of her race, color, sex, and national origin. Defendants subsequently challenged the maintenance of that Title VII action by submitting the Motion for Summary Judgment presently under review. The basis asserted for that challenge being that plaintiff was not an "employee" of defendants within the meaning and protection of the Act. Accordingly, defendants argue that as an independent contractor plaintiff does not have a remedy for her termination under Title VII.

Discussion

I

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court "can determine whether further exploration of the facts is necessary." Habin v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court has kept in mind that the entry of summary judgment will terminate this litigation, and has, as a consequence, drawn all inferences from the established or asserted facts in favor of plaintiff, the non-moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Wilson v. Health & Hospital Corp. of Marion County, 620 F.2d 1201, 1215 (7th Cir.1980). Where, as here, the non-moving party is proceeding pro se⁶, the court has been even more cautious for the pleadings, by definition, are drafted by a non-lawyer. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Accordingly, the court has held these pleadings to a far less stringent standard than that normally utilized to examine submissions drafted by an attorney. Under this liberal pleading standard, plaintiff's allegations, however inartfully pleaded, are deemed sufficient to call for the opportunity to offer supporting evidence, and her pro se complaint will not be dismissed, "unless it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which will entitle her to relief." Haines, supra at 519-520, 92 S.Ct. at 595, citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The court, having recalled the liberality afforded plaintiff's pro se pleadings, now turns to address defendant's Motion for Summary Judgment.

II

Title VII was enacted to eliminate discrimination in employment based on race, color, religion, or national origin. Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir.1980).⁷ Consequently, for Title VII protections to apply, there must be proof that an employment relationship existed at the time of the claimed wrong.⁸Jenkins v. Travelers Insurance Co., 436 F.Supp. 950, 952 (D.Or.1977), Smith v. Dutra Trucking Co., 410 F.Supp. 513, 518 (N.D.Cal.1976), aff'd mem., 580 F.2d 1054 (9th Cir.1978). Relying on the language of the "agent's contract" and the terms of plaintiff's prior affiliation, defendants' Motion for Summary Judgment argues that plaintiff cannot demonstrate the existence of such an employment relationship. To the contrary, defendant's submission asserts that plaintiff's activities as an agent were those of an independent contractor and thus not within the scope of Title VII coverage. See Cobb v. Sun Papers, Inc., 673 F.2d 337, 338 (11th Cir.1982) (independent contractor not protected by Title VII); Unger v. Consolidated Foods Corp., 657 F.2d 909, 915 n. 8 (7th Cir.1981) (independent contractor not within scope of Title VII); Spirides v. Reinhardt, 613 F.2d 826, 829 (D.C.Cir.1979) (federal employees who are independent contractors or those not directly employed are unprotected by Title VII). It is, therefore, to the terms and conditions of plaintiff's former affiliation that the court now directs its attention.

III

Examining first the plain language of the "agent's contract", the court observes that the agreement purports to limit coverage to the "agent's activities as an independent contractor." (Defendant's exhibit one at 1.)⁹ The court does not find that contract designation to be a binding determination of plaintiff's employment status for the purpose of this Title VII litigation, however, as the court will not elevate an employment contract so as to permit it to be used to waive protections granted plaintiff under this or any other act of Congress. Spirides, 613 F.2d at 832; accord, McClure v. Salvation Army, 460 F.2d 553, 557 (5th Cir.1972); Mathis v. Standard Brands Chemical Industries, Inc., 10 Empl.Prac.Dec. 5245, 5246 (N.D. Ga.1975). Nor does the court find the balance of that document to provide persuasive authority as to plaintiff's former employment status, inasmuch as it does not further define the relationship between the parties, other than to indicate that compensation would be paid on a commission basis and that the affiliation could be terminated by either party at any time. Rather, the court considers the "agent's contract" and its "independent contractor" designation to be at best only an indication of the parties' intentions, not a controlling reference to plaintiff's Title VII status. Mueller v. Cities Service Oil Co., 339 F.2d 303, 305 (7th Cir.1965).

In the present matter, however, the decisive issue to be determined is not whether the parties intended plaintiff to be an "independent contractor", but whether she may in any respect be deemed to have been an "employee" within the scope of Title VII's protection. Spirides, 613 F.2d at 831. Unfortunately, resort to the statute will not provide that answer either, as Title VII broadly defines "employee" to mean "an individual employed by an employer." 42 U.S.C. § 2000e(f). Therefore, to resolve whether plaintiff's agent affiliation was one of employee-employer, the court must look beyond the "contract" and the Act itself to focus upon the realities of that actual relationship and the degree of control defendants exercised over plaintiff. Unger, 657 F.2d at 915 n. 8.¹⁰

IV

Anticipating this burden of proof, defendant Burman has submitted an affidavit detailing the usual terms and conditions of an agent's affiliation. That submission provides that agents are free to have any other employment provided only that it does not involve the sale of competing insurance; that agents are not assigned an area, but are free to solicit anywhere in Indiana; that they establish their own hours and schedules; and that agents need not...