Lambertsen v. Utah Dept. of Corrections

• Decision Date: 28 March 1996
• Docket Number: No. 95-4072,95-4072
• Citation: 79 F.3d 1024
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 631, 67 Empl. Prac. Dec. P 43,991, 108 Ed. Law Rep. 58 Waydann LAMBERTSEN, Plaintiff-Appellant, v. UTAH DEPARTMENT OF CORRECTIONS, Greg Jaquart, Preston Kay, Randy Southwick, Bill East, Rubin Nunley, Calvin Fox and Lyle Wilde, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1024

79 F.3d 1024

70 Fair Empl.Prac.Cas. (BNA) 631,

67 Empl. Prac. Dec. P 43,991, 108 Ed. Law Rep. 58

Waydann LAMBERTSEN, Plaintiff-Appellant, v. UTAH DEPARTMENT OF CORRECTIONS, Greg Jaquart, Preston Kay Randy Southwick, Bill East, Rubin Nunley, Calvin Fox and Lyle Wilde, Defendants-Appellees.

No. 95-4072.

United States Court of Appeals Tenth Circuit.

March 28, 1996.

Appeal from United States District Court for the District of Utah; David Sam, Judge. (D.C. No. 94-CV-400).

Robert W. Horn, of Robert W. Horn, P.C., of Jackson Hole, Wyoming, for appellant.

Nancy L. Kemp, Assistant Attorney General, and Jan Graham, Attorney General, of Salt Lake City, Utah, for appellees.

Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff Waydann Lambertsen filed suit against the Utah Department of Corrections and various of its employees, alleging sexual discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. Plaintiff also asserted various state law claims against defendants. The district court granted summary judgment in favor of defendants on plaintiff's Title VII claims, and dismissed the remaining state law claims. Plaintiff appeals.

I.

Plaintiff was hired by the South Sanpete School District (School District) as a teaching assistant at the Central Utah Academy (Academy), a classroom run by the School District for eligible inmates of the Utah State Correctional Facility (Correctional Facility) in Gunnison, Utah. Although administered by the School District, the Academy was physically housed in the Correctional Facility and plaintiff physically worked at the Correctional Facility.

The involvement of defendant Utah Department of Corrections (Department) in the operation of the Academy is limited solely to security and safety concerns. For example, Department employees patrol and coordinate security access in the classroom to ensure the safety of School District employees. Likewise, Department employees review classroom materials and equipment to ensure that they do not pose a security or safety threat. For security purposes, the Department also conducts a background investigation on each new School District employee assigned to work at the Academy. Upon successful completion of the investigation, the School District employee receives a security identification badge that allows entrance into the Correctional Facility. The Department requires each School District employee to sign a written document entitled "Contractor's Code of Conduct,"which sets forth policies that the School District employee agrees to follow in working with inmates at the Correctional Facility.

All other aspects of the operation of the Academy are controlled exclusively by the School District. In particular, the School District exercises exclusive control over supervision, work assignments, evaluations, pay, and employee benefits for School District employees who work at the Academy. Likewise, the School District provides all funding for the educational services provided by the Academy.

Plaintiff alleges she was sexually assaulted by an inmate while she was working at the Academy. She reported the incident to Robert MacGillivray, who is director of the Academy and is employed by the School District. The Department assigned one of its employees, Preston Kay, to investigate the incident. According to plaintiff, during and following Kay's investigation, Kay and the other individual defendants made numerous sexually suggestive and/or inappropriate comments, which subjected her to a hostile and abusive work environment.

Plaintiff reported defendants' alleged misconduct to MacGillivray, who in turn reported the misconduct to Fred Van Der Veur, warden of the Correctional Facility. MacGillivray placed plaintiff on administrative leave to relieve her from having to work in a hostile environment and to give Van Der Veur an opportunity to address the situation with his staff. At that time, MacGillivray also offered plaintiff a permanent transfer to one of the other schools in the district.

Plaintiff filed a formal charge of discrimination with the Utah Anti-Discrimination Division and the Equal Employment Opportunity Commission, who assumed jurisdiction over the matter and issued a notice of right to sue. Plaintiff subsequently filed this action. Defendants filed a motion to dismiss plaintiff's complaint. The district court issued an order advising the parties that the court intended to treat defendants' motion to dismiss as a motion for summary judgment and inviting the parties to submit additional evidence relevant to the motion.

Plaintiff filed a pleading entitled "Memorandum in Traverse of Summary Judgment." Plaintiff also filed a motion to amend her complaint to assert a cause of action against defendants under 42 U.S.C. § 1983. Defendants responded to plaintiff's motion to amend her complaint. The district court issued a written memorandum granting summary judgment in favor of defendants on plaintiff's Title VII claims, but declined to exercise jurisdiction over plaintiff's pendent state law claims. The court issued a separate order denying plaintiff's motion to amend her complaint.

II.

A. Plaintiff's Title VII claims

In granting summary judgment in favor of defendants on plaintiff's Title VII claims, the district court adopted the "hybrid" test, see Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 305 (10th Cir.1992) ("hybrid" test applied to determine whether insurance agent an "employee" within meaning of Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.), to determine whether plaintiff was an "employee" of the Department. The court concluded:

As plaintiff notes, the critical feature which defines the employer-employee relationship between plaintiff and defendant Utah Department of Corrections ("DOC") is control. It is undisputed that DOC conducted a security check of plaintiff as a condition of her entry into the prison facility and that DOC was responsible for security in the prison classroom. To the extent plaintiff was subject to security measures within the prison grounds, she was subject to control by DOC. However, the undisputed facts also reflect the following: (1) Plaintiff was hired by the School District; (2) The School District paid her salary and benefits; (3) Work assignments, hours of work and performance evaluations were established and governed by the School District; (4) Plaintiff's supervisor at the Gunnison Academy was an employee of the School District; (5) The "Contractor's Code of Conduct" plaintiff was required to sign by DOC sets forth behavior of "independent contractor[s]" while operating within the prison grounds. In sum, the court finds that the facts reflect that while DOC controlled prison security, the School District controlled the hiring, firing, wages and benefits of school employees who were assigned to the prison school. Although DOC exercised some control over plaintiff for security purposes when she was within the confines of the prison, ultimate control over her employment was exercised by the School District. The court, therefore, concludes that DOC was not plaintiff's employer for purposes of Title VII.

Appellant's br. append., Memorandum Decision at 8.

On appeal, plaintiff contends the district court erred in concluding she was not an employee of the Department for purposes of Title VII. Specifically, plaintiff argues the court's legal conclusions were based upon disputed facts and that summary judgment was inappropriate in light of the disputed facts. Further, plaintiff argues the district court misconstrued the "means and manner" of control exerted by the Department over her work. Plaintiff also argues the court failed to consider the "totality of the circumstances" in determining whether she was an employee of the Department. Finally, plaintiff argues the court erred in failing to apply the test espoused in McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933-34 (11th Cir.1987), for determining whether the School District and the Department could be considered a single employer for Title VII purposes.

We review the district court's grant of summary judgment de novo, applying the same standard as the district court under Fed.R.Civ.P. 56(c). Universal Money Centers. v. American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We examine the factual record and reasonable inferences therefrom in the light most favorable to the nonmoving party. Id. If there is no genuine issue of material fact in dispute, we must determine whether the district court correctly applied the law. Applied Genetics Intern. v. First Affiliated Securities, 912 F.2d 1238, 1241 (10th Cir.1990).

Title VII provides, in pertinent part, that it is "an unlawful employment practice for an employer--(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a). An employer under Title VII is "a person engaged in an industry affecting commerce who has fifteen or more employees," 42 U.S.C. § 2000e(b), and an employee is "an individual employed by an employer." 42 U.S.C. § 2000e(f).

In determining whether a plaintiff has demonstrated an employee-employer relationship for purposes of federal anti-discrimination legislation, courts have generally applied either the economic realities test or the hybrid test. Oestman, 958 F.2d at 305 (discussing both tests). Under the hybrid test, the main focus of the court's inquiry is the employer's right to control the "means and manner" of the...