Trainor v. Apollo Metal Specialities, Inc.

• Decision Date: 13 December 2002
• Docket Number: No. 01-5077.,01-5077.
• Citation: 318 F.3d 976
• Parties: Randy TRAINOR, Plaintiff-Appellant, v. APOLLO METAL SPECIALTIES, INC. and Danny Pilgrim, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 976

318 F.3d 976

Randy TRAINOR, Plaintiff-Appellant, v. APOLLO METAL SPECIALTIES, INC. and Danny Pilgrim, Defendants-Appellees.

No. 01-5077.

United States Court of Appeals, Tenth Circuit.

December 13, 2002.

As Amended on Denial of Rehearing January 23, 2003.

Donald Gregory Bledsoe (Steven A. Novick with him on the briefs), Tulsa, OK, for Plaintiff-Appellant.

Catherine Louise Campbell (Joseph A. Sharp, Karen M. Grundy and Matthew B. Free, with her on the brief), of Best & Sharp, Tulsa, OK, for Defendants-Appellees.

Before SEYMOUR, ALDISERT^* and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Randy Trainor sued his former employer, Apollo Metal Specialties, Inc., and Apollo's majority stockholder, Danny Pilgrim, alleging disability employment discrimination in violation of Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12111-17 ("ADA"), and raising state law claims of discrimination, retaliatory discharge, breach of contract, tortious interference with an employment contract, and false inducement to employment. The district court granted defendants' motion for summary judgment, ruling that Apollo was not an employer covered by the ADA because it did not have fifteen or more employees in each of twenty calendar weeks during the relevant period as required by 42 U.S.C. § 12111(5)(A)¹ and declining to exercise jurisdiction over the state law claims. Mr. Trainor appeals, contending the district court erred in placing the burden on Mr. Trainor to establish, in response to the summary judgment motion, the number and status of Apollo's temporary employees for purposes of the ADA's fifteen-employee requirement, and in holding that Mr. Pilgrim was not an Apollo employee. We reverse.

I

Defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) or alternatively for summary judgment, contending the court lacked subject matter jurisdiction because Apollo was not within the ADA definition of an employer. In support of this motion, defendants attached corporate payroll records and an affidavit by Mr. Pilgrim. Mr. Trainor filed a brief in response and attached his affidavit. While noting some disagreement among the circuits and within this circuit as to whether meeting the employer definition in the ADA is an issue of subject matter jurisdiction,² the district court properly converted the motion to one for summary judgment. We have held that "[w]hen subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case, the jurisdictional claim and the merits are considered to be intertwined." Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987) (citing Clark v. Tarrant County, 798 F.2d 736, 742 (5th Cir.1986) (jurisdictional claim and merits intertwined in determining whether defendant was employer under Title VII)). When, as here, both parties submit evidence beyond the pleadings, the motion is properly characterized as one for summary judgment. Id.

The court disposed of Mr. Trainor's claims in two rulings. In its first order, the court treated as Apollo employees all those listed on the payroll, including all temporary employees. Under that scenario Apollo met the fifteen-employee requirement for the requisite number of weeks if Mr. Pilgrim was considered an employee. After ruling that Mr. Pilgrim was not an employee, the court acknowledged Mr. Trainor's challenge to the accuracy of defendants' payroll records and held that he had shown an adequate basis for further investigation. Accordingly, the court granted limited discovery to allow Mr. Trainor to investigate the number of Apollo's employees, both full and part-time. In so doing, the court stated that it had "insufficient evidence to grant summary judgment to Defendants at this early stage." Aplt.App. at 52.

In its second order, the district court agreed with Mr. Trainor that Mrs. Pilgrim, who was also a shareholder in Apollo and worked for the corporation, was an employee each week during the time she worked there, a ruling defendants do not challenge on appeal. However, the court rejected Mr. Trainor's argument that the fifteen-employee requirement had been met for twenty weeks. In reaching this conclusion, the court refused to deem all of Apollo's temporary workers "employees," ruling that Mr. Trainor had failed to controvert defendants' showing that some of these temporary workers were in fact independent contractors. Accordingly, the court granted summary judgment for defendants.

II

We first address Mr. Trainor's argument that the district court erred in holding he failed to carry his burden of proof under the summary judgment standard. We review the grant of summary judgment de novo, taking the facts and the reasonable inferences to be drawn from them in the light most favorable to the nonmoving party. See Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000). Under Rule 56(c), the moving party bears the initial burden of presenting evidence to show the absence of a genuine issue of material fact. See Hom v. Squire, 81 F.3d 969, 973 (10th Cir.1996). In our circuit, "`[t]he moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment.'" Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991) (quoting Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987)). Once this burden is met, Rule 56(e) requires the non-moving party to set forth specific facts showing there is a genuine issue for trial. See Hom, 81 F.3d at 973. Even when, as here, the moving party does not have the ultimate burden of persuasion at trial, it has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial. Id. at 1103-04.

If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial. In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything.

Id. at 1102-03 (citations omitted); see also Mullins v. Crowell, 228 F.3d 1305, 1313-14 (11th Cir.2000), reh'g and suggestion for reh'g en banc denied by 251 F.3d 165 (11th Cir.2001); Hunter v. Caliber Syst., Inc., 220 F.3d 702, 725-26 (6th Cir.2000).

Defendants sought to present evidence negating an essential element of Mr. Trainor's case, the requirement that Apollo be an "employer" for ADA purposes. To do so, defendants contended that "at least several" of its temporary workers were independent contractors rather than employees and therefore could not be counted. Aplt.App. at 16. As defendants recognize, in this circuit a person's status as either an employee or an independent contractor is determined using a hybrid test. See Sizova, 282 F.3d at 1328.

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 worker's performance. However, the hybrid test also looks at other factors, including: (1) the kind of occupation at issue, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the employer or the employee furnishes the equipment used and the place of work; (4) the length of time the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the employer; (9) whether the worker accumulates retirement benefits; (10) whether the employer pays social security taxes; and (11) the intention of the parties. No single factor is conclusive. Rather, the courts are to look at the totality of the circumstances surrounding the working relationship between the parties.

Id. (quoting Lambertsen v. Utah Dep't of Corr., 79 F.3d 1024, 1028 (10th Cir.1996)).

To support their argument that some workers were independent contractors under the hybrid test, defendants presented two exhibits — payroll records and Mr. Pilgrim's affidavit. The payroll records consisted of four columns listing the payroll check date for each week of the relevant period, the number of full-time Apollo employees for each week, the number of people hired through temporary employment agencies for each week, and the total number of payroll checks issued each week. In his affidavit, Mr. Pilgrim explained his relationship to Apollo, the work he performed for the corporation, and the payroll records. Mr. Pilgrim stated that Apollo occasionally hired temporary workers, including welders, from personnel services. He said that although he assigned work and supervised employees, he did not supervise welders and they provided their own equipment. Defendants' exhibits did not identify the number of welders Apollo hired, or the weeks during which welders worked, or otherwise identify which temporary workers or how many of them defendants contended were independent contractors in any given week. Moreover, under the hybrid test, Mr. Pilgrim's admission that he assigned and supervised the work of all employees other than welders itself creates a fact issue as to whether all the temporary workers were independent contractors rather than employees.

Because Mr. Trainor is the nonmoving party, we must take his factual allegations as true and draw all reasonable inferences from the evidence in his favor. Relying on his personal knowledge of the...