Love v. JP Cullen & Sons, Inc.

• Decision Date: 09 March 2015
• Docket Number: No. 13–3291.,13–3291.
• Parties: Walter V. LOVE, Plaintiff–Appellant, v. JP CULLEN & SONS, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

779 F.3d 697

Walter V. LOVE, Plaintiff–Appellant

v.JP CULLEN & SONS, INC., Defendant–Appellee.

No. 13–3291.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 11, 2014.

Decided March 9, 2015.

Joshua G. vincent, Attorney, Hillary Victoria Kistenbroker, Attorney, Hinshaw & Culbertson, Chicago, IL, for Plaintiff–Appellant.

Sara Lynn Gehrig, Attorney, Nowlan & Mouat LLP, for Janesville, WL, for Defendant–Appellee.

Before WOOD, Chief Judge, and FLAUM and MANION, Circuit Judges.

Opinion

FLAUM, Circuit Judge.

In February 2008, Walter V. Love was dismissed from the construction site on which he worked after a physical altercation with another site worker. JP Cullen & Sons, Inc. was the general contractor responsible for the project. Cullen employed a subcontractor—Eugene Matthews, Inc.—who employed a second subcontractor—Union Contracting, Inc.—which in turn employed Love. Love brought a Title VII action against Cullen, alleging that his job site dismissal was racially motivated. Since Cullen was not Love's direct employer, Love needed to demonstrate that Cullen could still be held liable under Title VII as his indirect employer. The district court concluded that Love failed to demonstrate such a relationship, and therefore granted summary judgment in favor of Cullen in September 2013. We now affirm.

I. Background

J.P. Cullen & Sons, Inc. was the general contractor on the Milwaukee city hall renovation project (“city hall project”), which spanned from September 2005 through December 2008. One condition of Cullen's contract with the city was its compliance with the city's residency preference program, which required that a given percentage of all hours worked on certain city contracts be allocated to unemployed residents of a specified area. In order to ensure compliance with the residency program, Cullen selected a recruiting firm to aid in hiring.

One of Cullen's subcontractors on the renovation project was Eugene Matthews, Inc. (“EMI”), which, under the terms of its contract with Cullen, was permitted to select its own subcontractors within certain parameters (for instance, Cullen required its subcontractors to hire union workers). One of EMI's subcontractors was Union Contracting, Inc. (“UCI”), which hired Walter V. Love to work on the city hall project. Love was hired by UCI as a foreman in June 2007, and his duties included shipping and receiving, managing laborers, and ensuring that necessary materials were on site and properly staged. Love expected to continue working for UCI after completion of the city hall project.

UCI, which had no contractual relationship with Cullen, paid Love's salary and provided all other benefits. UCI also set Love's hours. Scott Henninger, the job superintendent for UCI, received general work instructions from Cullen and passed those instructions on to Love. Cullen only gave specific directions about how to carry out assignments if it reviewed a finished product and found it unsatisfactory; under those circumstances, Cullen would communicate instructions for further work to a UCI supervisor.

Cullen's contract with EMI also required that EMI furnish all labor, materials, equipment, and services necessary to complete its work. However, Cullen did make a few bulk purchases of materials that it provided to EMI. Cullen also controlled physical access to the project site. It further required all subcontractor employees to attend periodic safety training meetings. However, Cullen provided no additional training or instruction. Most relevant to this appeal, in the event of “serious incidents” involving threats to workplace safety or worker productivity, Cullen retained the right to investigate alleged misconduct by its subcontractors' employees, to discipline them if necessary, and to permanently remove them from the job site. Cullen admits that it reserved the final decision regarding the continued presence of any worker on the project site.

On February 28, 2008, Love, who is African–American, was involved in an altercation with Arthur Mahan, another African–American employee of a different subcontractor. The facts of the altercation are disputed in this appeal. Love claims that Mahan confronted him and that Love attempted to verbally diffuse the situation. Cullen contends that Love may have pulled a knife¹ during the altercation and enlisted other site workers as “enforcers” to seek revenge on Mahan after the quarrel concluded. As a result of the altercation, Cullen's superintendent, Don Berendsen, ordered both Mahan and Love permanently removed from the job site, even though Berendsen supposedly concluded that Mahan was the instigator. Berendsen apparently initially concluded that only Mahan should be removed, and that Love should be suspended from the job site for one day. However, Mahan's employer—Artega Construction—evidently became upset by this decision and demanded that Love also be removed from the job site. Berendsen agreed and ordered both Mahan and Love permanently removed.

Henninger, UCI's superintendent, attempted to persuade Berendsen to reinstate Love, but Berendsen refused. Love contends that Berendsen threatened to end the contract with UCI if Love was not removed. After his removal, Love was unable to secure further employment with UCI, which had no other pending projects to which it could assign him. According to Love, there was another physical altercation between two Caucasian workers at the city hall project site that was similar to the Love–Mahan argument, but resulted in no significant disciplinary action against either worker.

While Love's primary claim of racial discrimination derives from Cullen's removal of Love from the project site, Love also alleges several other instances of disparate treatment on account of race that occurred prior to his dismissal. For example, Love notes that in November or December 2007, a Caucasian worker hung a noose at the construction site, which remained in place for two weeks despite numerous complaints to Cullen from African–American workers on the job site. Love also contends that Caucasian workers in the lunch area provided by Cullen routinely used the “N” word to describe their African–American coworkers. Love reported this behavior to Cullen's mason foreman, but Cullen made no attempt to stop the behavior. Love further contends that minority workers were repeatedly passed over for Cullen's “Partner of the Month” award.

Love filed suit in the United States District Court for the Eastern District of Wisconsin, alleging that Cullen discriminated and retaliated against him on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Both parties consented to the entry of final judgment by a magistrate judge. Cullen moved for summary judgment on the ground that it was not Love's employer for Title VII purposes. Although the district court recognized that a defendant who is not a direct employer may nevertheless be subject to Title VII liability if the plaintiff demonstrates that the defendant functioned as a de facto or indirect employer, the court found that Love failed to make the requisite demonstration. The court ultimately concluded that “indirect employer liability depends on the amount of control a putative Title VII defendant exerts over the plaintiff's employment.” Love v. JP Cullen & Sons, Inc., 971 F.Supp.2d 862, 865 (E.D.Wis.2013). The court conducted a careful analysis of the nature and extent of the control that Cullen exercised over Love's employment and determined that, based on the undisputed evidence in the record, Cullen was not Love's employer for Title VII purposes. The district court subsequently granted summary judgment to Cullen. Love appeals.

II. Discussion

We review a district court's grant of summary judgment de novo. Stable Inv. P'ship v. Vilsack, 775 F.3d 910, 915 (7th Cir.2015). In reviewing a motion for summary judgment, the court must construe all facts and inferences in favor of the nonmoving party. Foskett v. Great Wolf Resorts, Inc., 518 F.3d 518, 522 (7th Cir.2008). Summary judgment is appropriate when no genuine issue of material fact exists such that no reasonable jury could find for the nonmovant. Hedberg v. Ind., Bell Tel. Co., Inc., 47 F.3d 928, 931 (7th Cir.1995).

This appeal does not concern the merits of Love's racial discrimination claims. Rather, we analyze whether Cullen—who was not Love's direct employer—nevertheless exercised sufficient control over Love in the workplace such that Cullen is a proper defendant under Title VII. For reasons we articulate below, we conclude that Cullen exercised insufficient control over Love, such that no reasonable jury could conclude that Cullen was Love's indirect employer under Title VII.

Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “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 race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person,”42 U.S.C. § 2000e(b), while an “employee” is defined broadly, as “an individual employed by an employer.” 42 U.S.C. § 2000e(f).

In order to bring a Title VII claim against Cullen, Love must prove the existence of an employer-employee relationship. Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir.1991). It is undisputed that Love was not a direct employee of Cullen; rather, Love was an employee of UCI, a subcontractor of EMI, which was a subcontractor of Cullen. However, a plaintiff may have multiple employers for the purpose of Title VII liability. See Tamayo v. Blagojevich, 526 F.3d...