Eisenberg v. Advance Relocation & Storage

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-7216
• Parties: (2nd Cir. 2000) JULIANNE EISENBERG, Plaintiff-Appellant, v. ADVANCE RELOCATION & STORAGE, INC., ADVANCE RELOCATION & STORAGE OF CONNECTICUT, INC., WHEATON WORLD WIDE MOVING, B. NILSSON MOVING AND STORAGE, INC., and MOLLOY BROTHERS MOVING AND STORAGE COMPANY, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 111

237 F.3d 111 (2nd Cir. 2000)

JULIANNE EISENBERG, Plaintiff-Appellant, v. ADVANCE RELOCATION & STORAGE, INC., ADVANCE RELOCATION &AMP STORAGE OF CONNECTICUT, INC., WHEATON WORLD WIDE MOVING, B. NILSSON MOVING AND STORAGE, INC., and MOLLOY BROTHERS MOVING AND STORAGE COMPANY, Defendants-Appellees.

Docket No. 00-7216

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: September 13, 2000

Decided: December 26, 2000

Appeal from a judgment of the United States District Court for the Southern District of New York (William C. Conner, Judge) granting defendants' motion for summary judgment and dismissing the complaint on the ground that plaintiff was not an "employee" within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-2, et seq. ("Title VII") and New York Human Rights Law, Exec. Law §§ 290, et seq. ("NYHRL"). We hold that, in determining whether a worker is an employee within the meaning of Title VII and the NYHRL, courts ordinarily should place particular weight on the extent to which the hiring party controls the manner and means by which the worker completes her assigned tasks, rather than on how she is treated for tax purposes or whether she receives benefits.

Reversed and remanded.

DANIEL J. SCHNEIDER, Newburgh, NY, for Plaintiff-Appellant.

VINCENT TOOMEY, Lake Success, NY, for Defendants-Appellees.

BARBARA L. SLOAN, Equal Employment Opportunity Commission, Office of General Counsel, Washington, DC, for Amicus Curiae Equal Employment Opportunity Commission.

Before: CABRANES and PARKER, Circuit Judges, and CEDARBAUM, District Judge.^*

JOSE A. CABRANES, Circuit Judge:

We consider the question of whether the plaintiff is an "employee" within the meaning of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-2, et seq. ("Title VII"), and New York Human Rights Law, Exec. Law §§ 290, et seq. ("NYHRL"). We hold that, in determining whether a worker is an employee within the meaning of Title VII and the NYHRL, courts ordinarily should place particular weight on the extent to which the hiring party controls the manner and means by which the worker completes her assigned tasks, rather than on how she is treated for tax purposes or whether she receives benefits. Accordingly, we reverse the judgment of the District Court and remand for further proceedings.

I.

Unless otherwise noted, the following facts are not disputed. In July 1998, Julianne Eisenberg ran into an old acquaintance, Peter White, who was accompanied by another man, Mike Ewing. Both men worked at Advance Relocation & Storage, Inc. ("Advance"), a Danbury, Connecticut warehouse-White was involved in Advance's hiring process, and Ewing was the warehouse manager. The men discussed with Eisenberg the possibility of her working on a "permanent full-time" basis at Advance. They did not inquire into any special skills that Eisenberg may have had, and they did not ask about her prior work experiences. Instead, Eisenberg believed, the men were interested in her working at the warehouse because White knew that she was strong, having played football with her, and that she had been doing "carpentry work" for many years.

Soon after her conversation with White and Ewing, Eisenberg reported for work at Advance. There, she and her co-workers were responsible for loading and unloading furniture from trucks at the warehouse and at residences. They were paid on an hourly basis, and were required to punch in and out. Eisenberg and her co-workers were occasionally sent home early if there was little to do, and they were sometimes asked to work on the weekend.

At the warehouse, "Pete was [the] boss"-he gave Eisenberg "orders," and if he was not going to be at the warehouse on a particular day, he told her on the prior day "where ... to go and what ... to do." At job sites, an Advance representative-White, Ewing, or someone else-"would direct the crew as to what objects each [crew member, including Eisenberg,] was to move."

Eisenberg claims that during much of the time that she worked at Advance, she was sexually harassed. She asserts that on September 16, 1998, she complained about this alleged sexual harassment to Joan Isaacson, the Advance office manager; Eisenberg also alleges that she told Isaacson that she had seen several Advance employees using cocaine in the warehouse.

The warehouse was closed by management the next day. Eisenberg then met again with Isaacson, at which point Isaacson allegedly told her that she would receive a job when the warehouse re-opened, and would be contacted and told when to return to work. Isaacson then assertedly advised Eisenberg that she would not receive a job at Advance if, based on her allegations of sexual harassment, she sought legal counsel or filed a complaint. Undeterred, Eisenberg hired an attorney and initiated this action. She claims that she has not been called by Issacson or anyone else at Advance regarding a position at the firm.

Eisenberg's complaint alleges that she was subjected to a hostile work environment at Advance, that her termination from the firm was discriminatory, and that defendants retaliated against her for complaining about the violation of her right to be free of sexual harassment-all in violation of Title VII and the NYHRL. Following discovery, defendants moved for summary judgment, and the District Court granted their motion, holding that Eisenberg was not an Advance "employee," and thus could not invoke the protections of Title VII or the NYHRL. See Eisenberg v. Advance Relocation and Storage, Inc., 82 F. Supp. 2d 241 (S.D.N.Y. 2000). Judgment was entered accordingly, and this timely appeal followed.

II.

A.

Title VII and the NYHRL cover "employees," not independent contractors. See O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997) (Title VII); Scott v. Massachusetts Mut. Life Ins. Co., 633 N.Y.S.2d 754, 756 (1995) (the NYHRL). For the purposes of these statutes, a decision on whether a worker is an "employee"-or whether he or she is merely an independent contractor-requires the application of the common law of agency. See O'Connor, 126 F.3d at 115 (Title VII); Tagare v. Nynex Network Sys. Co., 994 F. Supp. 149, 159 (S.D.N.Y. 1997) (the NYHRL) (collecting New York cases). In turn, whether a hired person is an employee under the common law of agency depends largely on the thirteen factors articulated by the Supreme Court in Community for Creative Non Violence v. Reid, 490 U.S. 730 (1989).¹ See O'Connor, 126 F.3d at 115; Tagare, 994 F. Supp. at 159 (noting that the factors consulted to determine whether a hired party is an employee under the NYHRL "largely mirror those weighed in Title VII claims") (collecting cases). These so-called "Reid factors," which are culled from the federal common law of agency, see Reid, 490 U.S. at 740-41, are as follows:

[1] the hiring party's right to control the manner and means by which the product is accomplished ... [;] [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.

Id. at 751-52 (footnotes omitted).

In balancing the Reid factors, a court must disregard those factors that, in light of the facts of a particular case, are (1) irrelevant or (2) of "indeterminate" weight-that is, those factors that are essentially in equipoise and thus do not meaningfully cut in favor of either the conclusion that the worker is an employee or the conclusion that he or she is an independent contractor. See Aymes v. Bonelli, 980 F.2d 857, 861, 863 (2d Cir.1992); see also Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 110-111 (2d Cir.1998) ("Not all the Reid factors will be significant in every case, and we must weigh in the balance only those factors that are actually indicative of agency in the particular circumstances before us.").

The court is then required to assess each of the remaining factors. Though no single factor is dispositive, see Reid, 490 U.S. at 752, the "greatest emphasis" should be placed on the first factor-that is, on the extent to which the hiring party controls the "manner and means" by which the worker completes his or her assigned tasks. See Frankel, 987 F.2d at 90 (noting that "under the common law agency test" outlined in Reid, the "greatest emphasis" is placed "on the hiring party's right to control the manner and means by which the work is accomplished").² The first factor is entitled to this added weight because, under the common law of agency, "an employer employee relationship exists if the purported employer controls or has the right to control both the result to be accomplished and the 'manner and means' by which the purported employee brings about that result." Hilton Int'l Co. v. NLRB, 690 F.2d 318, 320 (2d Cir. 1982); see Railroad Co. v. Hanning, 82 U.S. (15 Wall.) 649, 657-58 (1872) (collecting cases and authorities that apply this "control" rule); Performing Right Soc'y, Ltd. v. Mitchell and Booker, Ltd., [1924] 1 K.B. 762 (collecting 19th and early 20th century English cases that apply the rule and treatises that describe it); Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir. 1997) ("At root, the distinction at common law between an employee and an independent contractor rests on the degree of control exercised by the hiring party."); Frankel, 987 F.2d at 89 (observing that the "traditional test" for determining whether a worker is an employee of independent contractor ...