Al-Kharouf v. Dist. of Columbia
| Decision Date | 30 October 2020 |
| Docket Number | Case No. 1:18-cv-00459 (TNM) |
| Parties | Nabil AL-KHAROUF, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant. |
| Court | U.S. District Court — District of Columbia |
Rani V. Rolston, Alan Lescht & Associates, P.C., Washington, DC, for Plaintiffs.
Laura Teresita Geigel, Litigation, Section IV, Martha J. Mullen, Office of Attorney General, Washington, DC, for Defendant.
The District of Columbia government, like other large organizations, often relies on outside contractors to execute its operations. In doing so, however, it must walk a fine line. The District must supervise the contractors to some extent to ensure they perform properly. But if the District exerts too much control over them, it subjects itself to employment laws as their employer. Whether the District has sufficiently walked that line is the issue here.
Plaintiffs—former contractors hired by a District agency—sue it for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , and 42 U.S.C. § 1981. The District now moves for summary judgment. It argues that Title VII does not apply because Plaintiffs are its independent contractors, not employees. The Court cannot agree. There are genuine disputes of fact about how much control the District exercised over Plaintiffs, which is critical to determining whether an employer-employee relationship exists.
But summary judgment is warranted on the Section 1981 claim. Plaintiffs identify no policy or custom behind the alleged discrimination committed by their supervisor. For these reasons, the District's motion will be granted in part and denied in part.
Both federal and local governments can only do so much on their own. From time to time, they engage outside services to assist them. The District is no different. Its agencies use contractors "to perform services that are not part of a particular agency's regular business activities." Def.’s Statement of Undisputed Material Facts ("Def.’s Statement") ¶ 1, ECF No. 29.
In 2008, the District's Department of Employment Services ("DOES") retained a private firm, Optimal Solutions & Technologies, Inc. ("OST"), to help "modernize its information technology unemployment insurance system and tax oversight program." Id. ¶¶ 2, 6. As the primary contractor, OST hired subcontracting vendors that offered candidates (or "resources") to assist with the DOES project. See Def.’s Resp. to Pls.’ Statement of Disputed Material Facts ("Def.’s Resp.") ¶ 5, ECF No. 31. Plaintiffs Nabil Al-Kharouf, Kadih Nahed, Derek Price, and Alena Svozil (collectively "Plaintiffs") all worked as resources on the DOES project. Id. ¶¶ 6–7, 9–10.
Plaintiffs claim that while on the DOES project, they experienced discrimination from Tharmalingam Annamalai—the Associate Director of the Office of Information Technology at DOES. See Pls.’ Opp'n to Def.’s Mot. for Summ. J. ( ) Ex. 9 ¶ 2, ECF No. 30-1. According to Plaintiffs, Annamalai gave preferential treatment to and only hired contractors of South Asian or Tamil-Indian origin, and he removed contractors who were from elsewhere. See Second Am. Compl. ("Am. Compl.") ¶¶ 21, 25, ECF No. 26. Plaintiffs are not South Asian or Tamil-Indian, and they were all removed from the DOES project. See Pls.’ Statement of Facts ¶¶ 39–40, 44–47, 50–52, 54–56, ECF No. 30.
They sue the District for employment discrimination under Title VII (Count I) and 42 U.S.C. § 1981 (Count II).1 See Am. Compl. ¶¶ 86–94. The District now moves for summary judgment. See Def.’s Renewed Mot. for Summ. J. ("Def.’s Mot."), ECF No. 29.
A court will award summary judgment "if the movant shows that 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). A dispute is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And a fact is "material" if it "might affect the outcome of the suit under the governing law." Id.
On summary judgment, courts draw all "justifiable inferences" in the non-moving party's favor and accept as true the non-moving party's evidence. Id. at 255, 106 S.Ct. 2505. But more than a "scintilla of evidence" is required. Id. at 252, 106 S.Ct. 2505. If a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment is warranted. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The District seeks summary judgment on the Title VII claim for one reason: It was not Plaintiffs’ "employer" under the statute. Def.’s Mot. at 23–30.2 Plaintiffs disagree. They argue that the District and OST were their joint employers for the DOES project. See Am. Compl. ¶¶ 15, 81.
Under the joint employer doctrine, "[t]wo separate entities may be joint employers of a single same workforce if they share or co-determine those matters governing essential terms and conditions of employment." Dunkin’ Donuts Mid-Atl. Distrib. Ctr., Inc. v. NLRB , 363 F.3d 437, 440 (D.C. Cir. 2004) (cleaned up). Whether a joint-employer relationship exists is "essentially a factual issue." Id. (cleaned up).
The D.C. Circuit has "recognized two largely overlapping articulations of the test for identifying joint-employer status." Al-Saffy v. Vilsack , 827 F.3d 85, 96 (D.C. Cir. 2016). The " Spirides test"—based on Spirides v. Reinhardt , 613 F.2d 826 (D.C. Cir. 1979) —considers the "economic realities of the work relationship" and "calls for application of general principles of the law of agency to undisputed or established facts." Id. at 831 (cleaned up). If there is the "right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist." Id. at 831–32.
The other test arises from NLRB v. Browning-Ferris Industries of Pennsylvania, Inc. , 691 F.2d 1117 (3d Cir. 1982). As with the Spirides test, this " Browning-Ferris test" considers whether the 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." Id. at 1123.
For both tests, "the touchstone is control." Al-Saffy , 827 F.3d at 97. The Spirides test establishes various factors for courts to consider,3 but the "extent of the employer's right to control the means and manner of the worker's performance is the most important factor to review." 613 F.2d at 831 (cleaned up).
In Al-Saffy , a Department of Agriculture employee based at the U.S. Embassy in Yemen sued the Departments of Agriculture and State for employment discrimination under Title VII. 827 F.3d at 89–91. The district court granted summary judgment for the State Department, finding it was not an employer under the statute. Id. at 91–92. The D.C. Circuit reversed. It held that the plaintiff "came forward with evidence creating a genuine dispute concerning the State Department's control over his work and employment." Id. at 97. The court noted that the plaintiff reported directly to State Department employees and the federal chief of missions statute "grants the United States ambassador in a foreign country plenary authority over other executive branch employees in that country." Id. Thus, the court found there were "genuine questions of material fact about whether the State Department exercised sufficient control over [the plaintiff's] employment in Yemen to be his joint employer" for Title VII. Id. at 98.
The Court need not decide whether to apply the Spirides or Browning-Ferris test here. Under either, the record reveals a genuine dispute of fact about the District's control over Plaintiffs for the DOES project. As in Al-Saffy , this dispute precludes summary judgment for the District on Plaintiffs’ Title VII claim. See id. at 97–98.
The District contends that OST, not the District, had "primary control over the means and methods" of completing the DOES project. Def.’s Mot. at 29–30. It is not so clear-cut.
The Court agrees that OST was key to the DOES project. It maintained the methodology for screening potential candidates to work on the project. See id. Ex. 1 at 5. It created a plan for the "tasks, work breakdown structure, completion dates, milestones, resource staffing, resource allocation, [and] estimated hours" for the DOES project. Id. at 6. And it created a "policy and procedures manual to manage the relationship" with subcontracting vendors and "Program Managers" (District employees). Id.
But that is not the whole picture. A District employee requested, reviewed, and selected the candidates who worked on the DOES project. See Def.’s Statement ¶ 16; Def.’s Mot. Ex. 1 at 3. Once hired, Plaintiffs received a chapter of the District's personnel manual. Def.’s Resp. ¶ 15. They also received access to DOES computers, databases, and badges to work on-site, which they usually did. See id. ¶ 20; Pls.’ Opp'n Ex. 7 ¶ 18; id. Ex. 8 ¶ 11.
More, the record reveals a factual dispute over the District's involvement in Plaintiffs’ day-to-day work on the DOES project. The District states that "DOES did not maintain personnel files, conduct performance reviews, or provide reprimands." Pls.’ Opp'n Ex. 6 at 41. But DOES employees, including Annamalai, supervised Plaintiffs. See id. Ex. 3 at 26; id. Ex. 4 at 31; id. Ex. 5 at 35–36; id. Ex. 6 at 40–41. A DOES employee served as Plaintiffs’ "first-line supervisor," and he "regularly met and communicated with the Plaintiffs about their work and status of tasks within projects" and handled intraoffice personnel issues that would arise. Id. Ex. 7 ¶¶...
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