Thomason v. Prudential Ins. Co. of America

• Decision Date: 28 October 1994
• Docket Number: No. 93-4150-SAC.,93-4150-SAC.
• Citation: 866 F. Supp. 1329
• Parties: Martha THOMASON, Plaintiff, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA and Dwight E. Keefer, Defendants.
• Court: U.S. District Court — District of Kansas

866 F. Supp. 1329

Martha THOMASON, Plaintiff, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA and Dwight E. Keefer, Defendants.

No. 93-4150-SAC.

United States District Court, D. Kansas.

October 28, 1994.

Dan E. Turner, Phillip L. Turner, Turner Law Office, Topeka, KS, for plaintiff.

Grant M. Glenn, R. Patrick Riordan, Woner, Glenn, Reeder, Lowry & Girard, Topeka, KS, for defendant Prudential Ins. Co. of America.

Deanne W. Hay, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, Stephen W. Nichols, Arthur H. Stoup & Associates, P.C., Kansas City, MO, for defendant Dwight E. Keefer.

MEMORANDUM AND ORDER

CROW, District Judge.

In this case, Martha Thomason alleges that while she was an employee of the Prudential Insurance Company of America (Prudential) she was subjected to sexual harassment by her supervisor, Dwight E. Keefer. In addition, the plaintiff alleges that Keefer "made disparaging remarks and comments concerning her religion." In her third amended complaint, Thomason seeks compensation under the following legal theories:

Count I: Violation of 42 U.S.C. § 2000e-2(a)(1) (Title VII)

Count II: Violation of the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001, et seq.

Count III: Tort of Outrage (based upon her termination for refusing to have sexual relations with Keefer)

Count IV: Breach of an implied contract of employment¹

Count V: Breach of an employment contract to pay withholding taxes, overtime pay, medical benefits and retirement benefits.²

Count VI: Tort of outrage (based upon Keefer's behavior in the workplace toward Thomason)

See (Dk. 93). Thomason's complaint alleges jurisdiction under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity of citizenship), and 28 U.S.C. § 1343 (civil rights and elective franchise), as well as state supplemental claims. See 28 U.S.C. § 1367.

This case comes before the court upon Prudential's motion for summary judgment (Dk. 144) and upon Dwight E. Keefer's motion for partial summary judgment (Dk. 146). Thomason has filed a response to each defendant's motion, and each defendant has filed a reply. At the heart of the defendant's respective motion for summary judgment is their contention that Keefer was not an employee of Prudential, but instead that he was merely an independent contractor.³ The issue is significant for different reasons for each defendant. For Prudential, the issue is significant in that (1) it would not be liable for the acts of a person who was not its employee and (2) if Keefer was not an employee of Prudential, then Thomason cannot demonstrate that she was a Prudential employee, and hence she cannot recover from it under any of her discrimination claims. For Keefer, the issue is significant as he would not be an "employer" within the meaning of 42 U.S.C. § 2000e(b) or K.S.A. 44-1002(b) unless he was an employee of Prudential, as Keefer did not otherwise employ the statutory number of employees necessary to qualify as an "employer." Prudential seeks summary judgment on all of the plaintiff's other claims. While Keefer concedes that a genuine issue of material fact exists concerning one portion of the plaintiff's claims, Keefer contends that he is entitled to summary judgment on the balance of the plaintiff's other claims.

Thomason responds, arguing genuine issues of material fact concerning Keefer's relationship to Prudential and her relationship to Prudential precludes summary judgment on her remaining claims. Thomason also argues that her claims based upon the tort of outrage should survive summary judgment.

The court, having considered the briefs of counsel and the applicable law, is now prepared to rule.

Standards for Summary Judgment

A court grants a motion for summary judgment if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law governing the suit dictates which facts are material or not. Id. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The movant's burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). "A movant is not required to provide evidence negating an opponent's claim." Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted).

If the moving party meets its burden, then it becomes the nonmoving party's burden to show the existence of a genuine issue of material fact. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991); see Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) ("If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case."). When the nonmoving party will have the burden of proof at trial, "`Rule 56(e) ... then requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."'" Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted); see Martin, 3 F.3d at 1414 (non-moving party cannot rest on the mere allegations in the pleadings); see also Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.1993) ("Optimistic conjecture, unbridled speculation, or hopeful surmise will not suffice."). The court views the evidence of record and draws inferences from it in the light most favorable to the nonmoving party. Burnette v. Dow Chemical Co., 849 F.2d at 1273.

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion is not the chance for a court to act as the jury and determine witness credibility, weigh the evidence, or decide upon competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

Uncontroverted Facts⁴

From 1990 to present, Keefer has been the owner and operator of a sole proprietorship doing business as "Dwight E. Keefer and Associates." Keefer performs estate, charitable tax, and financial planning for clients. Keefer sells and services certain insurance products underwritten by various insurance companies, one of which is Prudential. On or about January 8, 1990, Keefer entered into a Professions Agent Transitional Contract with Prudential. Section 6.(f) of that agreement expressly created an employer-employee relationship between Keefer and Prudential. On or about January 28, 1991, Keefer and Prudential executed a written amendment to the January 8, 1990, agreement. In pertinent part, that agreement provides:

Section 6. (f). Independent Contractor — It is the intention of the parties that the Agent be an independent contractor and not an employee of the Company. The Agent shall make every reasonable effort to function as a full time life insurance salesperson for the Company within the meaning of Section 3121 of the Internal Revenue code of 1954 as it may be amended from time to time. None of the terms of this Contract shall be construed as creating a common-law employer-employee relationship.

On or about March 19, 1991, Keefer was informed by Prudential that he was qualified for Prudential's Service Support Program (SSP). The SSP program provides expense allowance payments to Keefer. The amount of the expense allowance is based upon Keefer's sales record. Prudential does not specifically direct the manner in which the expense allowance payments may be used for any particular type of business expense.

Keefer did not receive a salary from Prudential. Instead, Keefer received compensation in the form of commissions from the sale of Prudential insurance products. During the relevant time frame, Keefer rented office space for his business from Prudential. Keefer's office was located in a suite of the Prudential Offices in Overland Park. Keefer provided most of his own equipment, furnishings and expenses. Keefer has taken vacations whenever he deemed appropriate. Keefer has worked under his own schedule, his work has not been supervised by Prudential, and he has not been required to report his daily activities to Prudential. Keefer has received no unemployment benefits coverage or worker's compensation coverage from Prudential. Keefer has also been an agent for The New England Insurance Company and a broker for the Provident Life Accident Insurance Company. On his...