Ost v. West Suburban Travelers Limousine, Inc.

• Decision Date: 01 July 1996
• Docket Number: No. 95-2540,95-2540
• Citation: 88 F.3d 435
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 304, 68 Empl. Prac. Dec. P 44,157 Laura L. OST, Plaintiff-Appellant, v. WEST SUBURBAN TRAVELERS LIMOUSINE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 435

88 F.3d 435

71 Fair Empl.Prac.Cas. (BNA) 304,

68 Empl. Prac. Dec. P 44,157

Laura L. OST, Plaintiff-Appellant, v. WEST SUBURBAN TRAVELERS LIMOUSINE, INC., Defendant-Appellee.

No. 95-2540.

United States Court of Appeals Seventh Circuit.

Argued Nov. 29, 1995.

Decided July 1, 1996.

James W. Holman (argued), Cellucci, Yacobellis & Holman, Naperville, IL, for Plaintiff-Appellant.

Donald J. McNeil (argued), Lisa E. Grampo, Keck, Mahin & Cate, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Laura Ost, a limousine driver, contracted with the defendant, West Suburban Travelers Limousine, Inc. ("West Suburban" or "WSTL"), to provide her with dispatching services. Ms. Ost claimed that she was subjected to discrimination on the basis of her gender and brought this Title VII action. West Suburban moved for summary judgment. The district court granted that motion, and Ms. Ost now appeals. For the reasons discussed in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

Laura Ost owned Ost Limousine, Ltd., and was the primary driver of the limousine owned by that corporation. Ost Limousine contracted with West Suburban to provide it with dispatching services. West Suburban is an airport limousine dispatch service operating in Chicago and the surrounding six-county area. It does not maintain its own fleet of limousines; rather, it contracts with individuals, such as Ms. Ost, to provide the vehicles that it dispatches. In May 1991, after attending a one-day orientation, Ms. Ost began driving her limousine and receiving her customer assignments from West Suburban. In return for providing dispatching services, West Suburban was paid a percentage of the fares that Ms. Ost collected. West Suburban's commission was due even if the customer failed to show up or to pay for the ride; the loss of a fare was therefore absorbed by Ms. Ost.

Under her arrangement with West Suburban, Ms. Ost made her limousine available for dispatch several days a week, but she often shared the driving responsibilities with another driver. The other driver was charged a leasing fee by Ms. Ost for his use of her vehicle. Ms. Ost was responsible for all of the fees associated with owning and maintaining her vehicle. In July 1992, Ms. Ost sold her limousine and began leasing vehicles from others. At that same time, she entered into a contractual arrangement with West Suburban. That contract provided that Ms. Ost was free to contract with other In the fall of 1991, Ms. Ost told Jay Parker, the operations manager for West Suburban, that she was interested in becoming a part-time dispatcher. The position was desirable because dispatchers who were also drivers received the most preferable driving assignments. Parker could not offer Ms. Ost a dispatcher position because none was available at that time. A year later, in August and in October 1992, two dispatcher positions became available; Ms. Ost was not offered either position, and each was eventually filled by a male driver.

                companies to provide dispatching services, that Ms. Ost could refuse to accept any assignment that was offered to her, and that she was free to establish her own driving routes (unless a customer requested a specific route).   The agreement also provided that it could be terminated with seven days' written notice
                

In early 1993, O'Hare Airport instituted a $2 tax on each limousine departure. In response, West Suburban decided to increase its airport fares by $1 on all limousine service at the airport--arrivals as well as departures. Ms. Ost objected to the new policy and decided to fill out her weekly revenue sheets in a manner other than that required by West Suburban. When Barbara Simkus, the business manager for West Suburban, learned of the irregularity, she twice warned Ms. Ost to fill out the revenue sheets according to West Suburban's requirements. In May 1993, West Suburban management held a meeting in which Ms. Ost's revenue sheets were discussed. West Suburban claims that, because Ms. Ost had not conformed to its manner of filling out the revenue sheets and because of her "uncooperative manner" with dispatchers and customers, it decided to terminate her contract.

Ms. Ost then brought this suit, claiming that West Suburban discriminated against her on the basis of her gender. Specifically, she alleged that: (1) she was subjected to discrimination in the driving assignments she received; (2) she was discharged based on her gender; and (3) she was denied a promotion to a dispatcher position because of her gender.

The district court granted West Suburban's motion for summary judgment. It held that Ms. Ost had not shown that West Suburban met the definition of "employer" under Title VII by employing "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b). The evidence presented by Ms. Ost, concluded the court, did not raise a genuine issue of material fact as to whether the requisite number of employees existed.

The court also held that the defendant did not have an employer-employee relationship with its limousine drivers, but rather that the drivers were independent contractors. Although the court acknowledged that West Suburban "exercised some control over working hours by imposing disincentives for working limited days or hours," Ost v. West Suburban Travelers Limousine, No. 94-C-3874, 1995 WL 330911, at * 3 (N.D.Ill. May 30, 1995), this degree of control did not rise to the level of establishing an employer-employee relationship.

II DISCUSSION

We review the district court's grant of summary judgment de novo, reviewing the record in the light most favorable to the non-moving party. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994). With this standard in mind, we turn to the issue of whether Ms. Ost has established that West Suburban had the requisite number of employees to qualify as an "employer" for purposes of Title VII. This inquiry focuses on two groups of potential employees: first, the limousine drivers; and second, the support and managerial staff.

A.

We consider first the status of the limousine drivers. We must determine whether the district court was correct in concluding that the drivers were independent contractors and not employees. If the drivers were independent contractors, they may not be counted toward the fifteen employees required for Title VII jurisdiction. ¹ The district court employed the correct analytical approach to this inquiry. It focused on the degree of control West Suburban exercised over the drivers. More specifically, it focused on the following five factors:

(1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations.

Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378-79 (7th Cir.1991). Among these factors, the "employer's right to control is the most important when determining whether an individual is an employee or an independent contractor." Id. at 378-79. Because the district court applied the proper standard to this inquiry, we have only to review the court's factual determinations for clear error. Id. at 379.

We cannot say that the district court clearly erred when it determined that Ms. Ost was an independent contractor rather than an employee of West Suburban. Ms. Ost, who has the burden of proof on this issue, has not submitted detailed evidence of the contractual arrangement between the other limousine drivers and West Suburban. There is no evidence, however, that her arrangement was any different from that of the other drivers. Under these circumstances, and given the other evidence of record, the district court was justified in assuming that the other limousine drivers operated in much the same fashion as Ms. Ost.

The record reveals that West Suburban owned no limousines. Its drivers supplied their own vehicles and were responsible for paying all expenses associated with the ownership of the limousines, including taxes and insurance. A percentage of the fees collected by the drivers was turned over to West Suburban in exchange for the dispatching services; if a passenger failed to show up or to pay for the ride, West Suburban was still entitled to its commission and the driver had to absorb the loss. The drivers never received paychecks from West Suburban; their earnings came directly from the passengers. The drivers were able to choose to work whatever days they preferred and were free to refuse any assignments they wished. They could also choose their own routes (unless the customer requested a particular route) and could work for dispatching services other than West Suburban. Each of these facts indicates that the manner in which the drivers performed their services for West Suburban was primarily within their own control.

Ms. Ost submits that, on working days, the driver's starting time essentially was determined by West Suburban because the early morning assignments were set by West Suburban. At the end of the day, the drivers were required to call into West Suburban's dispatching service and to inform West Suburban that they were leaving the road for the day. West Suburban, in addition, required that Ms. Ost's vehicle be made available for service during certain times. Finally, she submits that her earning power was controlled by West Suburban because it set the rates and determined which drivers would receive which customers. These constraints do not, however,...