Hendon v. Kamtek, Inc.

• Decision Date: 24 July 2015
• Docket Number: Civil Action No. 2:14–cv–2255–WMA.
• Citation: 117 F.Supp.3d 1325
• Parties: Shannon HENDON, Plaintiff, v. KAMTEK, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

117 F.Supp.3d 1325

Shannon HENDON, Plaintiff,

v.KAMTEK, INC., et al., Defendants.

Civil Action No. 2:14–cv–2255–WMA.

United States District Court, N.D. Alabama, Southern Division.

Signed July 24, 2015.

Charity Gilchrist–Davis, Sherice M. Carter, The Law Office of Gilchrist–Davis LLC, Lee David Winston, Roderick T. Cooks, Winston Cooks LLC, Birmingham, AL, for Plaintiff.

Warren B. Lightfoot, Jr., Tiffany Parrish Rainbolt, Maynard Cooper & Gale PC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

WILLIAM M. ACKER, JR., District Judge.

Before the court is the joint motion of defendant Kamtek, Inc. ("Kamtek") for summary judgment under Fed.R.Civ.P. 56 and for dismissal under Fed.R.Civ.P. 12(b)(6) (Doc. 11). For the reasons explained below, the motion to dismiss will be granted, mooting the motion for summary judgment.

BACKGROUND ¹

Plaintiff Shannon Hendon is an African–American female over the age of 40. (Doc. 1 at 3, ¶ 9). She was employed by defendant Personnel Staffing, Inc. ("PSI") from April 2013 to December 2013. (Docs. 1 at 3–4, ¶¶ 9 & 13, 11 at 4, ¶ 7). PSI provides temporary personnel, known as PSI Associates, to Kamtek. (Docs. 1 at 3, ¶ 9, 11 at 3, ¶ 2). PSI also provides Kamtek with on-site management personnel, known as On–Site Supervisors or Human Resource Managers, who are responsible for coordinating the operations of PSI's associates and administering drug screenings. (Docs. 1 at 3, ¶ 9, 11 at 4, ¶ 5). Hendon was an On–Site Supervisor. (Docs. 1 at 3, ¶ 9, 11 at 4, ¶ 6).

As an On–Site Supervisor, Hendon worked on Kamtek's premises, but her office was located in a trailer designated specifically for PSI use. (Doc. 11 at 4–5, ¶ 10). Although there was obviously interaction with Kamtek employees, Hendon was not supervised by any Kamtek employees. (Doc. 11 at 5, ¶ 12). Her personnel file was maintained only by PSI, and PSI was entirely responsible for her compensation. (Doc. 11 at 5–6, ¶¶ 14, 16).

In September 2013, Hendon was contacted by Arthur Thomas, an African–American Kamtek employee. (Doc. 1 at 4, ¶ 10). Thomas complained to Hendon that he had been discriminated against when taking a drug test. Id. Whether he was complaining against PSI, or against Kamtek, or against both, is unclear. According to Thomas, he was only given 45 minutes to produce a urine sample but could not do so, while white employees had been given up to two hours to produce a sample. (Doc. 1 at 4, ¶¶ 10–11). Thomas was terminated by Kamtek and was orally given his failure to provide a urine sample as the reason for his termination. At his termination hearing, he mentioned that Hendon had knowledge of white employees who were not terminated after having failed a drug test or after being unable to produce a timely urine sample. (Doc. 1 at 4, ¶ 12).

On December 5, 2013, PSI fired Hendon. (Docs. 11 at 6, ¶ 20, 19–2 at 2). The reason given on the written termination notice was: "Client requested restructure of on-site personnel." (Doc. 19–2 at 2). Kamtek is unquestionably the client to which this notice referred. Hendon was thereafter replaced by a younger male employee. (Doc. 1 at 5, ¶ 15). Kamtek contends that it was not involved in PSI's decision to terminate Hendon and was not even aware of the decision until after the termination had taken place. (Doc. 11 at 6–7, ¶¶ 21–23). Kamtek also had nothing to do with PSI's choice of a replacement for Hendon.

On December 11, 2013, Hendon filed a charge of discrimination with the EEOC against Kamtek and PSI. (Doc. 1–1 at 6). She received right-to-sue letters on August 22 and 26, 2014. (Doc. 1–1 at 2, 4). She filed this lawsuit on November 20, 2014. In her complaint, she alleges that she was discriminated against based on her race (in violation of Title VII and 42 U.S.C. § 1981 ), on her sex (in violation of Title VII), and on her age (in violation of the ADEA).

PSI and Kamtek filed motions in response to Hendon's complaint. PSI moved to compel arbitration. The court granted its said motion on March 2, 2015, and the above entitled action as to PSI is currently stayed pending arbitration. (Doc. 14). Kamtek moved for summary judgment under Fed.R.Civ.P. 56, or, in the alternative, for a dismissal under Fed.R.Civ.P. 12(b)(6). In its summary judgment motion, Kamtek contends, inter alia, that it cannot be liable because it was not Hendon's employer. The employment discrimination statutes relied upon by Hendon do not give this court jurisdiction over the conduct of non-employers. In its motion to dismiss, Kamtek also argues that Hendon's complaint does not allege facts to show that Kamtek discriminated against her based on her race, or based on her sex, or based on her age, and that her complaint fails to state a viable claim based on her association with Arthur Thomas. She does not even attempt to mount a claim of retaliation.

On May 12, 2015, the court ordered Hendon to show cause why her ADEA claim should not be dismissed for her failure to allege that her age was the "but-for" cause of her termination, as is required by Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). (Doc. 18). Hendon has responded to Kamtek's motion and to the court's show cause order.

DISCUSSION

Because Kamtek's motion for summary judgment, inter alia, is a challenge to this court's subject-matter jurisdiction, the court will address that motion first. See OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d 1344, 1352–53 (11th Cir.2008).

A. Motion for Summary Judgment

Summary judgment is appropriate only when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must "examine the evidence in the light most favorable to the non-moving party," drawing all inferences in favor of that party. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir.2000). "[A] ‘judge's function’ at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’ " Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

Kamtek claims that because it was not Hendon's employer it cannot be held liable under any of Hendon's theories. A defendant must be an employer to be liable under Title VII, § 1981, or the ADEA. See Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1359 (11th Cir.1994) ; Fountain v. Metcalf, Zima & Co., P.A., 925 F.2d 1398 (11th Cir.1991) ; see also 29 U.S.C. § 630(f) ; 42 U.S.C. § 2000e(f). In other words, the court lacks subject-matter jurisdiction over a non-employer defendant under the statutes being invoked by Hendon. Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d 1236, 1242 (11th Cir.1998).

The Eleventh Circuit "interpret[s] the term ‘employer’ liberally." Virgo, 30 F.3d at 1359. Hendon contends that, while Kamtek was not her direct employer, sufficient evidence exists to demonstrate that Kamtek was a joint-employer with PSI, thus precluding summary judgment. If "one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer," that defendant may be liable as a joint-employer. Id. at 1360 (quoting Nat'l Labor Relations Bd. v. Browning–Ferris Indus., 691 F.2d 1117, 1123 (3d Cir.1982) ). The most important consideration is "the degree of control an entity has over the adverse employment decision." Llampallas, 163 F.3d at 1244–45.

Kamtek presents very substantial evidence in support of its contention that it was not Hendon's joint-employer. PSI, not Kamtek, was solely responsible for supervising Hendon, for maintaining her personnel file, and for paying her salary and benefits. Kamtek also claims that it had no involvement in the decision to terminate Hendon and was only made aware of the decision after-the-fact. This assertion, however, runs into the words of the termination notice delivered to Hendon by her admitted employer, PSI. The notice says: "Client [Kamtek] requested restructure of on-site personnel." (Doc. 19–2 at 2). These words could have several meanings. Kamtek itself refers to the notice as "nebulous." (Doc. 21 at 8). Possible meanings can support Kamtek's position that it was not involved in the termination decision, but, importantly, the statement could be construed as "corporate-speak" for Kamtek's instructing or pressuring PSI to fire Hendon.

Kamtek argues that the court should not read the termination notice in the way suggested by Hendon, and instead should look to a Kamtek employee's affidavit to ascertain the meaning of the ambiguous notice. But such is not the standard to be applied at summary judgment. The court is required to "examine the evidence in the light most favorable to the non-moving party." Earl, 207 F.3d at 1365. When evaluated under this strict standard, the termination notice lends support to Hendon's position that Kamtek exercised control over the terms and conditions of her employment, particularly over her termination. The court, therefore, cannot find at the summary judgment stage that Kamtek was not Hendon's joint-employer, an entity over which this court has jurisdiction. Accordingly, at this stage the court will exercise jurisdiction over the action against Kamtek as Hendon's joint-employer.

B. Motion to Dismiss

When reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must " ‘accep[t] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff.’ " M.T.V. v. DeKalb Cty. Sch. Dist., 446 F.3d 1153, 1156 (11th Cir.2006) (quoting Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003) ). A complaint must, however, "state a claim to relief that is plausible on its face" if it is to survive such a motion. Bell Atl. Corp. v. Twombly, 550...