No. 12-6236

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

 

 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Plaintiff-Appellant,                                  [12-6236]

and

MAURICE KNOX,

          Intervening Plaintiff-Appellant,             [12-5967]

v.

SKANSKA USA BUILDING, INC.,

          Defendant-Appellee.

 

 

On Appeal from the United States District Court

for the Western District of Tennessee

No. 2:10cv2717

 

REPLY BRIEF OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS APPELLANT

 

 

P. DAVID LOPEZ

General Counsel

 

LORRAINE C. DAVIS

Acting Associate General Counsel

 

ELIZABETH E. THERAN

Attorney

 

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................... ii

 

INTRODUCTION........................................................................................... 1

 

ARGUMENT.................................................................................................. 3

 

CONCLUSION............................................................................................. 36

 

CERTIFICATE OF COMPLIANCE............................................................ 37

 

CERTIFICATE OF SERVICE

 

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS.. A-1

 

TABLE OF AUTHORITIES

Cases

3750 Orange Place Ltd. P’ship v. NLRB, 333 F.3d 646 (6th Cir. 2003).......... 6

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)..................................... 3

Anderson v. Pac. Mar. Ass’n, 336 F.3d 924 (9th Cir. 2003)............................ 9

Arbaugh v. Y&H Corp., 546 U.S. 500 (2006).................................................. 3

Armbruster v. Quinn, 711 F.2d 1332 (6th Cir. 1983)............................. 3, 4, 7

Back v. Nestle USA, Inc., 694 F.3d 571 (6th Cir. 2012)................................ 21

Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir. 1977)................................ 4

Bristol v. Bd. of Cnty. Comm’rs,
312 F.3d 1213 (10th Cir. 2002) (en banc)...................................... 9, 11, 22

Bryson v. Middlefield Volunteer Fire Dep’t, Inc.,
656 F.3d 348 (6th Cir. 2011).............................................................. 22, 34

Camreta v. Greene, 131 S. Ct. 2020 (2011)................................................... 4, 5

Carrier Corp. v. NLRB, 768 F.2d 778 (6th Cir. 1985)........................... passim

Carter v. Univ. of Toledo, 349 F.3d 269 (6th Cir. 2003)................................ 21

Chattman v. Toho Tenax Am., Inc., 686 F.3d 339 (6th Cir. 2012)................ 33

Clackamas Gastroenterology Assocs., P.C. v. Wells,
538 U.S. 440 (2003)......................................................................... 9, 12, 15

Collier v. Turner Indus. Grp., LLC, 797 F. Supp. 2d 1029 (D. Idaho 2011). 19

EEOC v. Pac. Mar. Ass’n, 351 F.3d 1270 (9th Cir. 2003).................... passim

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)................................................ 7

Franks v. Bowman Transp. Co., 424 U.S. 747 (1976)....................................... 7

Grace v. USCAR, 521 F.3d 655 (6th Cir. 2008)...................................... 15, 28

Graves v. Lowery, 117 F.3d 723 (3d Cir. 1997)............................. 9, 10, 11, 22

Jacobs v. Maricopa Cnty.,
24 F.3d 247, 1994 WL 175424 (9th Cir. May 9, 1994)............................. 4

Johnson v. City of Saline, 151 F.3d 564 (6th Cir. 1998)................................... 8

Kocsis v. Multi-Care Mgmt., 97 F.3d 876 (6th Cir. 1996)............................. 33

Kurdziel v. Pittsburgh Tube Co., 416 F.2d 882 (6th Cir. 1969)..................... 17

Magnuson v. Peak Tech. Servs., Inc., 808 F. Supp. 500 (E.D. Va. 1992), aff’d, 40 F.3d 1244 (4th Cir. 1994).................................................................................. 11

Moreau v. Air France, 343 F.3d 1179 (9th Cir. 2003)................................... 27

NLRB v. Browning-Ferris Indus. of Pa., Inc.,
691 F.2d 1117 (3d Cir. 1982)............................................................. 11, 25

NLRB v. Wilson-Crissman Cadillac, Inc., 659 F.2d 728 (6th Cir. 1981)........ 27

Owens v. Rush, 636 F.2d 283 (10th Cir. 1980)............................................... 4

Puerta v. United States, 121 F.3d 1338 (9th Cir. 1997)................................. 17

Rivas v. Federacion de Asociaciones Pecuarias, 929 F.2d 814 (1st Cir. 1991). 10

Sanford v. Main Street Baptist Church Manor, Inc.,
449 F. App’x 488 (6th Cir. 2011)............................................................... 7

Shah v. Deaconess Hosp., 355 F.3d 496 (6th Cir. 2004).................................. 8

Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973)....................... 4

Skidmore v. Swift & Co., 323 U.S. 134 (1944)................................................ 12

Swallows v. Barnes & Noble Book Stores, Inc.,
128 F.3d 990 (6th Cir. 1997).................................................................. 6, 7

Tipler v. E.I. duPont de Nemours and Co., 443 F.2d 125 (6th Cir. 1971)........ 3

Torres v. Cnty. of Oakland, 758 F.2d 147 (6th Cir. 1985).............................. 28

Trevino v. Celanese Corp., 701 F.2d 397 (11th Cir. 1983)............................... 4

U.S. v. Canipe, 569 F.3d 597 (6th Cir. 2009)................................................ 28

Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350 (11th Cir. 1994)................ 9

Williams v. Grimes Aerospace Co., 988 F. Supp. 925 (D.S.C. 1997)............... 19

Wright v. Barth Elec. Co.,
No. 1:09cv1202, 2011 WL 883645 (S.D. Ind. Mar. 11, 2011)................ 19

Zheng v. Liberty Apparel, 355 F.3d 61 (2d Cir. 2003).................................. 27

 

Statutes

National Labor Relations Act, 29 U.S.C. §§ 151 et seq....................... passim

29 U.S.C. § 152(2)....................................................................................... 7

29 U.S.C. § 152(11)................................................................................... 26

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq... passim

42 U.S.C. § 2000e(b)................................................................................... 7

 

Rules & Other Authorities

Fed. R. App. P. 32(a)(5)................................................................................ 37

Fed. R. App. P. 32(a)(6)................................................................................ 37

Fed. R. App. P. 32(a)(7)(B)........................................................................... 37

Fed. R. Evid. 701........................................................................................... 28

Fed. R. Evid. 801(d)(2)(D)............................................................................ 21

18 J. Moore et al., Moore’s Federal Practice § 134.02[1] [d]
(3d ed. 2011)............................................................................................... 5

EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies & Other Staffing Firms (Dec. 3, 1997), 1997 WL 33159161...................................................... 11, 12, 13, 14

INTRODUCTION

The EEOC alleges that Defendant-Appellee Skanska USA Building, Inc. (“Skanska”) was the joint employer of a class of African American buckhoist operators working at the Methodist Le Bonheur Hospital job site in 2009.  As such, the EEOC argues, Skanska is legally responsible for the racial harassment and retaliation the buckhoist operators experienced on the site.  The district court granted summary judgment to Skanska solely on the joint employment issue.  R.97/District Court Order Granting Skanska USA Building, Inc.’s Mot. for Summ. J. (“Order”)/PID-3758.

In our opening brief (“EEOC-Br.”), we argued that the record evidence is more than sufficient to support a reasonable jury finding that Skanska was a joint employer of the buckhoist operators.  We pointed out, first, that the legal standard that the district court applied to the joint employment issue involved a totally different question: whether a worker is an employee or an independent contractor.  EEOC-Br. 42-49. We explained that this line of case law is inapposite to questions of joint employment because it entails a different analysis, assuming that one entity bears sole responsibility for governing essential terms and conditions of employment rather than sharing such responsibility with another.  Id. at 49.  We also argued that the district court erred, on summary judgment, in failing to weigh the record evidence in the light most favorable to the EEOC.  Id. at 49-55. 

In its brief as Appellee (“Skanska-Br.”), Skanska takes the untenable position that a doctrine—joint employment—that was born from and relies to this day on labor law cases for its development somehow must disregard all such cases when applied in the “civil rights context.”  Rather, Skanska would have this Court apply the inapposite employer-independent contractor cases, merely because it finds that test more favorable to its own interests.  Equally unfounded is Skanska’s view that construction contractors and subcontractors, regardless of the actual architecture of their relationships, can never be joint employers as a matter of law.  Finally, Skanska distorts the factual record in several respects and singlehandedly proves the existence of genuine disputes of material fact rendering summary judgment inappropriate.  We submit this reply brief to respond to Skanska’s legal arguments and to clarify the factual record.

ARGUMENT

1. Preliminarily, we offer a brief response to Skanska’s assertion (Skanska-Br. 31-32) that the joint employer standard is not to be liberally applied in Title VII cases.  Skanska bases this argument on two district court cases, one unpublished and purporting to rely on Eleventh Circuit precedent, while complaining that Plaintiff-Intervenor Knox relies on an unpublished case from the Northern District of Ohio.  Id.

To be clear: Title VII of the Civil Rights Act of 1964 is a civil rights statute with a broad remedial purpose.  See Armbruster v. Quinn, 711 F.2d 1332, 1336 (6th Cir. 1983), abrogated on other grounds, Arbaugh v. Y&H Corp., 546 U.S. 500 (2006).  As this Court put it in Armbruster:

The primary purpose of the Civil Rights Act, and Title VII in particular, is remedial.  Its aim is to eliminate employment discrimination by creating a federal cause of action to promote and effectuate its goals.  See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 44-45 (1974); Tipler v. E.I. duPont de Nemours and Co., 443 F.2d 125, 131 (6th Cir. 1971).  To effectuate its purpose of eradicating the evils of employment discrimination, Title VII should be given a liberal construction.  [Tipler], 443 F.2d at 131. The impact of this construction is the broad interpretation given to the employer and employee provisions.

 

711 F.2d at 1336.

Every other court of appeals to have reached the issue has also held that the definition of “employer” under Title VII is to be construed broadly.  See, e.g., Trevino v. Celanese Corp., 701 F.2d 397, 403 (11th Cir. 1983); Baker v. Stuart Broad. Co., 560 F.2d 389, 391 (8th Cir. 1977); Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338, 1340-41 (D.C. Cir. 1973); Owens v. Rush, 636 F.2d 283, 287 (10th Cir. 1980); Jacobs v. Maricopa Cnty., 24 F.3d 247, 1994 WL 175424, at *2 (9th Cir. May 9, 1994) (unpublished).  No federal court of appeals, in any decision that we were able to find, has adopted the narrow view urged by Skanska.

On a related point: Both on this specific issue and throughout its brief, Skanska urges this Court to take various legal positions based solely on district court decisions, many of which are unpublished, and including circumstances where more relevant circuit precedent exists.  In 2011, in Camreta v. Greene, the Supreme Court observed, “‘A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.’”  131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore’s Federal Practice § 134.02[1] [d], at 134-26 (3d ed. 2011)).  Accordingly, the Court held in Camreta, “district court decisions—unlike those from the courts of appeals—do not necessarily settle constitutional standards or prevent repeated claims of qualified immunity.”  Id.  We respectfully suggest that, while an individual district court’s decision may have some persuasive value, such decisions do not bear the authoritative weight Skanska would assign them.  This is especially true where this Court or, at the very least, other courts of appeals have addressed the issues in question.

2. Next, Skanska argues that this Court cannot rely on its own case law analyzing joint employment in the context of labor statutes that are not “civil rights statutes” (Skanska-Br. 34) because those statutes define “employer” differently from Title VII.  This argument is, to use Skanska’s own terms, misguided and legally unsustainable.  It is beyond dispute, and the EEOC has never suggested otherwise, that Title VII has a different statutory definition of “employer” from the FLSA or FMLA.  But this legislative fact has no bearing whatsoever on the proper analysis of whether two “employers”—however those entities may be defined by their respective statutes—share responsibility for the terms and conditions of employment sufficiently to be considered “joint.”

As Skanska itself recognizes, this Court has observed that “[b]oth the “single employer” and “joint employer” concepts developed in the labor relations context, and were subsequently imported into the civil rights context.  Thus, we look to both labor cases and civil rights cases for guidance.”  Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 n.3 (6th Cir. 1997) (internal citations omitted) (emphasis added).[1]  Moreover, Title VII was modeled on the NLRA and the two statutes are often interpreted in tandem.  See Ford Motor Co. v. EEOC, 458 U.S. 219, 226 n.8 (1982); Franks v. Bowman Transp. Co., 424 U.S. 747, 768-70 (1976).  The definitions of “employer” in Title VII and the NLRA are virtually identical.  Compare 42 U.S.C. § 2000e(b) (Title VII) with 29 U.S.C. § 152(2) (NLRA).  Cf. Armbruster, 711 F.2d at 1336 (observing that the similarity in language of Title VII and the NLRA “[is] indicative of a willingness to allow the broad construction of the NLRA to provide guidance in the determination of whether, under Title VII, two companies should be deemed to have substantial identity and treated as a single employer”).

In any case, if this Court were to limit itself to “civil rights cases” in looking for substantive guidance on the joint employment issue, it would find that its resources were rather slim.  Swallows, for example, is not a “joint employer” case at all.  Although the Court discusses the standard in general terms in footnote 4, the plaintiffs in that case never argued joint employment and the Court did not conduct a joint employment analysis.  128 F.3d at 993 n.4.  Sanford v. Main Street Baptist Church Manor, Inc., a Title VII case on which Skanska urges reliance, is unpublished and non-precedential and in any case barely touches on the joint employment analysis—it restates the general standard and then merely notes that this issue was not within the scope of this Court’s prior remand to the district court.  449 F. App’x 488, 492 (6th Cir. 2011) (unpublished).  Nor is Johnson v. City of Saline, 151 F.3d 564 (6th Cir. 1998), a joint employer case; the issue there was purely whether the plaintiff was a city employee or an independent contractor, and the decision nowhere even mentions joint employment.  And even Skanska concedes that Shah v. Deaconess Hospital, 355 F.3d 496 (6th Cir. 2004), is an independent contractor case that does not address joint employment either.  Skanska-Br. 46-47.

To be sure, other federal courts of appeals have addressed the issue of joint employment in the civil rights context.  The Ninth Circuit undertook a detailed analysis of the issue in EEOC v. Pacific Maritime Association, 351 F.3d 1270 (9th Cir. 2003), a Title VII sexual harassment case.  The plaintiff in Pacific Maritime was a longshore worker who sought to hold the defendant, an association of shipping, stevedoring and terminal companies, liable as her joint employer for sexual harassment she experienced on the job.  Id. at 1272-73.  In an earlier, related decision, the court had found:

[PMA] does not supervise the longshoremen.  It has no power to hire or fire longshoremen.  It has no power to discipline longshoremen.  It does not supervise the work sites of its member-employers.  It is undisputed that the monitoring and control over those sites, as well as the control of the employees, is within the sole province of the member-employers.

 

Id. at 1277 (quoting Anderson v. Pac. Mar. Ass’n, 336 F.3d 924, 927 (9th Cir. 2003)) (emphasis in Anderson).

The Ninth Circuit looked to existing precedent, including Labor Department regulations, prior case law in both civil rights and labor law cases, and the EEOC’s Compliance Manual in formulating its standard for joint employment.  351 F.3d at 1275-77.  It concluded:

The Supreme Court seems to suggest that the sine qua non of determining whether one is an employer is that an “employer can hire and fire employees, can assign tasks to employees and supervise their performance.”  [Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 450 (2003).]  Logically, before a person or entity can be a joint employer, it must possess the attributes of an employer to some degree.  Numerous courts have considered the key to joint employment to be the right to hire, supervise and fire employees.  See Bristol v. Bd. of Cnty. Comm’rs, 312 F.3d 1213, 1219 (10th Cir. 2002) (en banc); Graves v. Lowery, 117 F.3d 723, 727-28 (3d Cir. 1997); Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1361 (11th Cir. 1994); Rivas v. Federacion de Asociaciones Pecuarias, 929 F.2d 814, 820-21 (1st Cir. 1991).  These circumstances are not present here.  Accordingly, we conclude that PMA was not a joint employer of Jones.

 

351 F.3d at 1277.

The Third and Tenth Circuits have also looked at the issue of joint employment in the context of Title VII and the ADA, respectively, and have concluded that joint employment may be found where an entity that is not the formal employer of the plaintiff shares “de facto” authority or responsibility for the terms and conditions of his/her employment.  Thus, in Graves v. Lowery, the Third Circuit found that seven former clerks of Pennsylvania state court stated a claim for sex discrimination against Dauphin County as their joint employer, even though they were directly employed by the judicial branch of the Commonwealth of Pennsylvania.  117 F.3d 723, 724 (3d Cir. 1997).  The court observed, “the Clerks have alleged facts in their complaint, which, if proven, would allow them to show that Dauphin County, through its actions, was the de facto co-employer of the Clerks.”  Id. at 728.  It held:

In sum, the precise contours of an employment relationship can only be established by a careful factual inquiry.  See Magnuson v. Peak Tech. Servs., Inc., 808 F. Supp. 500, 510 (E.D. Va. 1992) (determining whether a defendant is a “joint employer” under Title VII requires “[c]onsideration of all of the circumstances surrounding the work relationship”), aff’d, 40 F.3d 1244 (4th Cir. 1994); see also NLRB v. Browning-Ferris Indus. of Penn., Inc., 691 F.2d 1117, 1121 (3d Cir. 1982) (noting that under the NLRA, “the question of ‘joint employer status’ is a factual one”).  Here, the Clerks alleged facts in their complaint, which, if true, could allow a jury to find that Dauphin County was the co-employer of the Clerks.  Specifically, the Clerks alleged that they were covered by the County's personnel policies, that they were told that they were County employees, that the County investigated their allegation of sexual harassment, that they were subject to termination and/or reinstatement by the County and that two of them were hired by the County.

 

Id. at 729.  See also Bristol, 312 F.3d at 1219-20 (finding no joint employer liability for defendant where no de facto (or other) employment authority over terms and conditions of plaintiff’s employment existed).

The EEOC also addresses the subject of joint employer liability in an Enforcement Guidance.  EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies & Other Staffing Firms (Dec. 3, 1997), 1997 WL 33159161 (hereinafter “Guidance”).[2]  As the Supreme Court observed in Clackamas, the EEOC’s Compliance Manual and enforcement guidances are a “‘body of experience and informed judgment’ to which we may resort for guidance.”  538 U.S. at 449 n.9 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

The Guidance begins by explaining the types of staffing firm arrangements it covers.  Although it explains that there are “many variants on the staffing firm/client model,” it defines “Temporary Employment Agencies” as follows:

Unlike a standard employment agency, a temporary employment agency employs the individuals that it places in temporary jobs at its clients’ work sites.  The agency recruits, screens, hires, and sometimes trains its employees.  It sets and pays the wages when the worker is placed in a job assignment, withholds taxes and social security, and provides workers’ compensation coverage.  The agency bills the client for the services performed.

 

While the worker is on a temporary job assignment, the client typically controls the individual’s working conditions, supervises the individual, and determines the length of the assignment. 

 

Guidance, 1997 WL 33159161, at *3.

Under the section of the Guidance dealing with Coverage Issues, Question 2 asks, “Is a staffing firm worker who is assigned to a client an employee of the firm, its client, or both?”  Id. at *5.  The Guidance responds, in relevant part (id.):

The staffing firm and/or its client will qualify as the worker's employer(s) if, under the factors described in Question 1, one or both businesses have the right to exercise control over the worker's employment.  As noted above, no one factor is decisive, and it is not necessary even to satisfy a majority of factors.  The determination of who qualifies as an employer of the worker cannot be based on simply counting the number of factors.  Many factors may be wholly irrelevant to particular facts.  Rather, all of the circumstances in the worker's relationship with each of the businesses should be considered to determine if either or both should be deemed his or her employer.

 

With respect to clients in particular, the Guidance provides that “[a] client of a temporary employment agency typically qualifies as an employer of the temporary worker during the job assignment, along with the agency.  This is because the client usually exercises significant supervisory control over the worker.”  Id. at *5.  “For example,” it explains, “the client is an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work to be performed, to make or change assignments, and to terminate the relationship.  On the other hand, the client would not qualify as an employer if the staffing firm furnishes the job equipment and has the exclusive right, through on-site managers, to control the details of the work, to make or change assignments, and to terminate the workers.”  Id. at *6. 

The Guidance (at *6) includes the following illustrative example, among several others:

Example 5: A staffing firm provides landscaping services for clients on an ongoing basis.  The staffing firm selects and pays the workers, provides health insurance and withholds taxes.  The firm provides the equipment and supplies necessary to do the work.  It also supervises the workers on the clients’ premises.  Client A reserves the right to direct the staffing firm workers to perform particular tasks at particular times or in a specified manner, although it does not generally exercise that authority.  Client A evaluates the quality of the workers' performance and regularly reports its findings to the firm.  It can require the firm to remove the worker from the job assignment if it is dissatisfied.  The firm and the Client A are joint employers.

 

Without further belaboring the point, a review of the joint employment analysis in those “civil rights” cases that have actually addressed it, along with the EEOC’s Enforcement Guidance, should make one thing clear: it bears a strong resemblance to the analysis undertaken by this Court in Grace v. USCAR, 521 F.3d 655 (6th Cir. 2008), and explained in our opening brief.  See EEOC-Br. 38-42.  In any joint employment case, whether it arises under a civil rights statute or a labor statute, the issue is shared control, and the courts and the EEOC look beyond the labels the parties attach to their relationships to determine which elements of control are shared.  Moreover, the two employing entities need not share every single aspect of the employment relationship in order to be deemed joint employers—rather, as the Ninth Circuit put it, a joint employer “must possess the attributes of an employer to some degree.”  Pacific Maritime, 351 F.3d at 1277; see also Guidance (observing that “no one factor is decisive, and it is not necessary even to satisfy a majority of factors”); cf. Clackamas, 538 U.S. at 450 n.10 (“The answer to whether a shareholder-director is an employee or an employer cannot be decided in every case by a ‘shorthand formula or magic phrase.’”) (internal citations and quotation marks omitted).

The alternative approach Skanska urges—to apply case law addressing an inapposite and thoroughly distinguishable legal question—is simply nonsensical and contrary to this Court’s (and other courts’) existing precedent on joint employment.  Equally nonsensical is Skanska’s insistence that the EEOC somehow “invited” this error by the district court.  Skanska-Br. 46.  From the beginning, the EEOC has taken the position that Skanska was a joint employer of the buckhoist operators in this case—not a single or sole employer.  R.59/EEOC Mot. for Partial Summ. J./PID-1845-46.  At no time did the EEOC ever argue that the district court should apply the common-law agency test to joint employer cases in the same manner as it does in employee-independent contractor cases.  Id.  Indeed, we have no quarrel with the passage from the district court’s decision that Skanska quotes in its brief, which cites Johnson for the proposition that this Court “has consistently held the ‘employer’s ability to control job performance and employment opportunities of the aggrieved individual’ to be the most important indicator of control.”  Skanska-Br. 46.  But the rest of the district court’s analysis in this case did not come from the EEOC’s briefing, and, if anything, relies more heavily on various district court cases cited by Skanska in its opposition to summary judgment.  See R.62/Skanska Mem. of Law in Opp. to EEOC Mot. for Partial Summ. J./PID-2079-81, 2084-85.

As this Court has observed, where an issue has been squarely presented to a district court, and especially where that issue is purely legal, “[w]e do not think [the] failure to argue applicable precedent forecloses presentation of such authority on appeal.” Kurdziel v. Pittsburgh Tube Co., 416 F.2d 882, 886 (6th Cir. 1969).  See also Puerta v. United States, 121 F.3d 1338, 1341-42 (9th Cir. 1997) (“An argument is typically elaborated more articulately, with more extensive authorities, on appeal than in the less focused and frequently more time pressured environment of the trial court, and there is nothing wrong with that.”).  We respectfully ask this Court to apply all relevant precedent—including Grace and other cases arising under the labor statutes, and regardless of whether they were cited by either party below—in making its determination as to whether Skanska was a joint employer of the buckhoist operators in this case.

3.  Relying on a total of five non-precedential cases, most from district courts and none from this Court, Skanska attempts to convince this Court that all cases arising in the context of “manufacturing and industrial settings (as opposed to a temporary employment agency situation)” involve some sort of presumption against joint employment.  Skanska-Br. 55-56.  Skanska’s logic is flawed, and its argument without any meaningful support.  First, by Skanska’s own admission, all these cases stand for is the unremarkable proposition that, if the full extent of the contractor’s authority over the subcontractor’s employees is the right to enforce safety rules and to bar noncompliant workers from the work site, that authority does not confer joint employer status.  These cases are inapposite here, however, because the record reflects that Skanska exerted far more authority over the buckhoist operators C-1 provided.

Second, not a single one of the Supreme Court and appellate cases cited above, or the EEOC’s Enforcement Guidance, contains a special set of rules for any particular industry; rather, the employment relationship in all cases is analyzed based on universal principles such as supervision of work and/or power to discipline, hire, fire, compensate, and set schedules.  None of these factors is inherently inapposite to construction or manufacturing—and, indeed, other courts have found triable issues of fact as to joint employment relationships in manufacturing and industrial settings.  See, e.g., Collier v. Turner Indus. Grp., LLC, 797 F. Supp. 2d 1029, 1044-45 (D. Idaho 2011) (holding that reasonable jury could find that fertilizer company was joint employer of maintenance worker at fertilizer plant under Title VII); Wright v. Barth Elec. Co., No. 1:09cv1202, 2011 WL 883645, at *11 (S.D. Ind. Mar. 11, 2011) (unpublished) (in Title VII race discrimination and retaliation case, ruling that reasonable jury could find that electrical contractor was joint employer of electrician; observing that “[g]enerally, where an employer has the right to control the means and manner of an individual’s performance, and to direct the work of that individual, an employer-employee relationship is likely to exist.”) (internal citation and quotation marks omitted); Williams v. Grimes Aerospace Co., 988 F. Supp. 925, 935-36 (D.S.C. 1997) (finding that manufacturing company was joint employer of temporary worker in assembly department within the meaning of Title VII on the grounds that, “[t]hough Grimes did not pay wages or provide benefits to Williams, it did retain several important controls: the power to set her wage amount; the authority to assign and control her work detail; and, most importantly, the right to terminate her employment.”).[3]

As we explained in our opening brief, there is more than enough evidence in this case from which a reasonable jury could find that Skanska was a joint employer of the buckhoist operators at the Le Bonheur site.  EEOC-Br. 3-15, 49-55.  As we also explained in our opening brief, and contrary to Skanska’s alarmist tone (Skanska-Br. 55), such a finding would not mean that all construction general contractors would automatically become joint employers of their subcontractors’ employees for Title VII purposes.  EEOC-Br. 53 n.8.  The EEOC’s argument here is based on the particular facts of Skanska’s employment relationship with the buckhoist operators: its near-exclusive on-the-job supervision of their work, its de facto firing authority over them, its ability to discipline them by sending them off the job site, its collection of their time sheets, and its consultation with Neely regarding their rate of pay.[4]  It is not based on generalizations about the construction industry or any other, which this Court should reject.

4. As we explained in our opening brief, the record evidence, including testimony by Skanska’s own witnesses, reflects that virtually all day-to-day supervision of the buckhoist operators at the Le Bonheur site was done either by Skanska employees or by Bernie Smith, an LSI employee acting at Skanska’s direction.  EEOC-Br. 8-12.  Multiple witnesses testified that Gerald Neely, the owner of C-1, was virtually never on site.  E.g., R.56-1/Hicks 30(b)(6) dep./PID-761, 766; R.70-11/Neely dep. 31/PID-2876; R.70-4/Knox dep. 137/PID-2796.  Skanska now (Skanska-Br. 9) points to its subcontract agreement with C-1 and seeks an inference that, because C-1 was supposed to provide on-site supervision, Skanska cannot possibly have supervised the buckhoist operators for Title VII purposes.  But Skanska is entitled to no such inference—as we explained in our opening brief (EEOC-Br. 45), it is reality that controls, not the labels the parties may attach to their relationships.  See also, e.g., Bryson v. Middlefield Volunteer Fire Dep’t, Inc., 656 F.3d 348, 355 (6th Cir. 2011) (“We consider and weigh all incidents of the relationship no matter how the parties characterize the relationship.”); Bristol, 312 F.3d at 1220 (observing that facts indicating that entity has “de facto authority” over employment decisions may support finding of joint employment); Graves, 117 F.3d at 728-29 (same).

Skanska also argues that the day-to-day supervision that it provided on the job site “from day one” somehow did not constitute “supervision.”  Incredibly, it argues that the testimony of Mike Rayburn, its own Project Executive for the Le Bonheur site, is not “competent evidence” as to the nature of the supervision on the site.  Skanska-Br. 63.  This position is not only unfounded, but belied by extensive other evidence in the record.  As we noted in our opening brief, Skanska gave a presentation on “Understanding Workforce Diversity” on September 17, 2009, at which one of the slides stated that “Brian Quigley and Norberto Jimenez, both Skanska Superintendents, oversee the buck hoist schedule and operations on a daily basis, and are the primary points of contact for all field personnel.”  R.56-2/Workforce Diversity Presentation/PID-855.  Moreover, Darin Magee, General Superintendent, testified that he assigned Quigley to supervise the buckhoist operations, R.57-5/Magee dep./PID-1680, and Robert Jones, Environmental Health and Safety Manager, testified that Quigley, Bernie Smith, and Jimenez all supervised the buckhoist operations on a daily basis at different times.  R.70-12/Jones dep. 49-51, 121/PID-2890, 2892.

Next, Skanska argues that it did not supervise the buckhoist operators because there was not a Skanska manager literally riding up and down the elevator with them at all times or micromanaging their actual operation of the buckhoist.  Skanska-Br. 60-63.  This argument fares no better.  As we explained in our opening brief, Skanska’s supervision of the buckhoist operations here, by its own reckoning, went well beyond the mere imposition and monitoring of industry safety standards.  According to Adam Hicks, Skanska employees, including Quigley and Smith, “[l]ooked at [the buckhoist’s] efficiency and tried to improve efficiency; tried to help in the scheduling of material deliveries; get the hoist to operate more efficiently as far as moving people; dealing with material deliveries that were scheduled to come in; maintenance and care of the actual hoist equipment.”  R.56-1/Hicks 30(b)(6) dep./PID-761, 765.  Hicks further testified that Skanska employees gave the buckhoist operators regular directives when there was a need to pick up people or material on a floor of the building, or when a contingency from the owner was coming to the site.  Id. at PID-762.  Smith testified that his job was “to ensure that everything ran smoothly on [the south] side of the site, and that deliveries made their way onto the loading dock, onto the buck hoist, and into the building.  My responsibilities included giving direction to the buck hoist operators as necessary as part of this process.”  R.58-4/Smith decl./PID-1750.  Smith also kept detailed notes of how Knox performed his work when he felt there were deficiencies.  Id. at PID-1751, 1755-59.

This Court has spoken on the question of what constitutes “supervision” in the context of the NLRA, the statute on which Title VII was modeled, see supra at 6-7, in Carrier Corp. v. NLRB, 768 F.2d 778 (6th Cir. 1985).  In Carrier, this Court found that Carrier Trucking Service and Pacemaker Driver Service, from whom Carrier leased truck drivers, were joint employers within the meaning of the NLRA.  Id. at 780-81.  The Court observed:

The following factors particularly support the Board’s ruling [that Carrier was a joint employer of the leased drivers].  First, Carrier exercised substantial day-to-day control over the drivers’ working conditions, while the drivers had only infrequent contact with Pacemaker.  Second, there was evidence suggesting that Pacemaker officials consulted the Carrier officials over wages and fringe benefits for the drivers.  See [Browning-Ferris,] 691 F.2d at 1125.  Finally, under Carrier’s leasing agreement with Pacemaker, Carrier had the authority to reject any driver that did not meet its standards and it could also direct Pacemaker to remove any driver whose conduct was not in Carrier's best interests.

 

Id. at 781.  If Skanska’s definition of “supervision” were the correct one, there could practically never be a finding of joint employment in a case involving the trucking industry, unless the leasing company placed a supervisor in the cab with the driver to monitor his/her every move throughout each trip.  But this is plainly not the case.

The Carrier Court then went on to consider whether a particular individual in the case, who worked as a dispatcher for Carrier, was a “supervisor” within the meaning of the statute.  The Court observed that the NLRA defines a “supervisor” as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”  Id. at 782 (quoting 29 U.S.C. § 152(11)); see also id. at 782 n.2 (“’The exercise of any one of the enumerated powers combined with “independent judgment” is enough to make one a supervisor.’ NLRB v. Wilson-Crissman Cadillac, Inc., 659 F.2d 728, 729 (6th Cir. 1981) (citation omitted).”).  The Court then found that the NLRB’s conclusion that the Carrier dispatcher was a supervisor was supported by the evidence showing that he and the other dispatcher “were the primary contacts between Carrier and the drivers,” and that he “was responsible for giving the drivers their schedules and for routing and re-routing drivers when necessary.  Hence, it can be concluded that [he] was in the position to ‘responsibly direct’ the drivers.”  Id.

Indeed, Zheng v. Liberty Apparel, 355 F.3d 61 (2d Cir. 2003), the FLSA case cited by Skanska in its brief, supports the EEOC’s view here, not Skanska’s.  In commenting on the appropriate analysis of supervision in joint employment cases, the Second Circuit drew the same distinction that this Court did in Grace v. USCAR, noting that the level of supervision in Moreau v. Air France, 343 F.3d 1179 (9th Cir. 2003), was insufficient to support a finding of joint employment.  As this Court observed in Grace, and as we explained in our opening brief, the extent of Air France’s supervision in Moreau consisted of “verif[ying] that Dynair’s work complied with applicable airline regulations,” and Air France controlled no other terms or conditions of employment vis-à-vis the plaintiff.  EEOC-Br. 41 (quoting Grace, 521 F.3d at 666).  The passage in Zheng cannot mean, as Skanska would have it, that any and all supervision bearing on quality control does not count as supervision—otherwise, the very notion of “supervision” would become meaningless.

Skanska also suggests that, because Samuel Burt testified that he considered C-1, Inc. to be his only employer (Skanska-Br. 21), this testimony is somehow dispositive of whether Skanska may be considered a joint employer in this case.  As a legal matter, it is not.  As this Court has held, pursuant to Fed. R. Evid. 701 a lay witness may not testify to a legal conclusion.  See, e.g., U.S. v. Canipe, 569 F.3d 597, 603 (6th Cir. 2009) (observing that lay witness’s testimony based on counsel’s “attempt to force a fact witness to adopt counsel’s legal conclusion … was both incompetent and unpersuasive”); Torres v. Cnty. of Oakland, 758 F.2d 147, 150 (6th Cir. 1985) (“The problem with testimony containing a legal conclusion is in conveying the witness’ unexpressed, and perhaps erroneous, legal standards to the jury.  This invades the province of the court to determine the applicable law and to instruct the jury as to that law.”) (internal citations and quotation marks omitted). 

In any case, even if Burt were competent to testify as to whether he had a joint employer, his testimony was somewhat equivocal, as he stated that he worked for C-1 but that “whatever Skanska needed me to do I do it.”  R.57/Burt dep. 80/PID-1349.  And Knox testified to the contrary: Jones, Jimenez, and Smith were his “supervisors” and he was working “under their orders,” and they were the ones who told him what to do on the job site.  R.70-4/Knox dep. 346, 391-92/PID-2804, 2808.  Both Knox and Burt also testified that, when problems arose on the site, they complained to Skanska supervisors.  R.70-4/Knox dep. 136, 169, 177/PID-2796, 2797; R.70-3/Burt dep. 70-71, 85/PID-2776, 2778.

In short, a reasonable jury could readily find that Skanska managers provided the only day-to-day supervision at the Le Bonheur job site the buckhoist operators in this case received—supervision that went well beyond mere safety standards and conferred significant, near-exclusive control over the daily operation of the buckhoist.

5.  As we argued in our opening brief, Skanska’s involvement with the buckhoist operators in this case was not limited to onsite supervision.  Skanska also maintained de facto firing authority over the buckhoist operators due to the nature of their employment contracts with C-1, which were specific to the Le Bonheur job only and not transferrable to any other job either theoretically or in practice.  EEOC-Br. 6-7.  Accordingly, because Skanska had and used the power to order buckhoist operators removed from the Le Bonheur site, it effectively had the power to fire them.  EEOC-Br. 14-15, 52-54.

Skanska now argues, rather disingenuously, that it could not possibly have disciplined or terminated the buckhoist operators in this case because it “was not a signatory to or otherwise involved in any respect with C-1’s employment agreements with the buckhoist operators.”  Skanska-Br. 50.  Again, as we explained in our opening brief (EEOC-Br. 47) and as the EEOC’s Guidance further reflects, this is in the ordinary nature of joint employment, and especially in the temporary employment context.  Not a single case of which we are aware—and Skanska cites none—holds that a client employer must be a signatory to an employment contract between a staffing company and a temporary worker in order to exert joint employment authority over a worker, and for good reason, as such a rule would make no sense.

In this case, however, the subcontract agreement to which Skanska is a signatory states that Skanska could have any of the buckhoist operators removed permanently from the site, at any time, for virtually any reason.[5]  See R.56-3/Skanska-C-1 subcontract agmt., Exh. E/PID-1004 (specifying that a buckhoist operator may be removed on notice to C-1 that he is “incompetent, disorderly, or otherwise unsatisfactory”).  This is, of course, just the kind of control that this Court found to support a finding of joint employment in Carrier, supra, 768 F.2d at 781.  But, as we explained in our opening brief, in this case it is also de facto firing authority because the buckhoist operators had no legal employment relationship with C-1 beyond the Le Bonheur project.  Neely could not simply “reassign” any of the buckhoist operators to a different project, as Skanska suggests, because once they no longer worked at Le Bonheur, they no longer worked for him at all, as their employment contracts specified.  R.56-5/Vassar C-1 employment agmt./PID-1281-82; R.57/Burt C-1 employment agmt./PID-1411-12; R.70-4/Knox C-1 employment agmt./PID-2810-11.

Skanska’s position here is tantamount to suggesting that no termination is ever final because an employer always has the option to rehire an employee it fires.  This, of course, makes no sense.  In this case, the uncontroverted record evidence reflects that the buckhoist operators were hired by C-1 only for the Le Bonheur project and worked only on the Le Bonheur project; that they were removed immediately from the job site and from C-1’s employ when Skanska ordered them removed; and that they were only returned to the job site at the client’s insistence when it discovered that Rayburn had attempted to cancel C-1’s contract over the racial harassment issues on the site.  See EEOC-Br. 23-24.  A reasonable jury could readily find that Skanska exercised de facto firing authority over the buckhoist operators.[6]

The record also reflects that Skanska exerted control over the buckhoist operators’ employment in other ways.  As we explained in our opening brief, the record reflects that Neely consulted with Rayburn over what to pay the buckhoist operators, and this Court has held this type of evidence to support a finding of joint employment.  EEOC-Br. 48-49; R.56-3/Neely dep./PID-886; Carrier, 786 F.2d at 781.  As to collecting time sheets and recording time, Skanska (Skanska-Br. 58) brandishes Knox’s testimony that he, and only he, turned in his time sheets directly to C-1, but this was his practice alone, as Skanska itself admits.  Neely, Burt, and Vassar all testified to the contrary.  R.70-11/Neely dep. 20-21/PID-2876; R.70-3/Burt dep. 26/PID-2773; R.70-10/Vassar dep. 92-93/PID-2862.  As Neely put it, “They had to report in to Skanska, … and they transferred the times to me because they had the superintendents over them while they was on the job.”  R.70-11/Neely dep. 20-21/PID-2876.

Finally, Skanska continues to make much of the fact that C-1 was solely responsible for hiring the buckhoist operators and for the mechanics of compensating them.  The EEOC has never argued otherwise, but this is entirely beside the point.  As we have emphasized from the beginning, this is a joint employment case, not a single employment case, and a joint employer need not fulfill all the functions of a single employer.  See Pacific Maritime, 351 F.3d at 1277; see also Guidance (observing that “no one factor is decisive, and it is not necessary even to satisfy a majority of factors”); cf. Bryson, 656 F.3d at 354 (in sole employer case, observing that “all of the incidents of the relationship must be assessed and weighed with no one factor being dispositive,” and reversing summary judgment as to whether unpaid volunteer firefighters could be employees) (internal citations and quotation marks omitted).  In this case, where C-1 functioned just as a temporary staffing agency does, it is perfectly normal that C-1 would have hired the buckhoist operators and that it would have handled their compensation.  However, in light of the extensive day-to-day supervision Skanska provided, its de facto termination power, its discipline power, and its role in processing time sheets and consulting with C-1 on salary, a reasonable jury could readily find that Skanska was a joint employer of the buckhoist operators in this case.

 

CONCLUSION

For the foregoing reasons and for the reasons stated in the EEOC’s opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

 

P. DAVID LOPEZ

General Counsel

 

LORRAINE C. DAVIS

Acting Associate General Counsel

 

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

 

 

 

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.  32(a)(7)(B) because it contains 6,971 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Palatino Linotype 14 point.

 

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

 

Dated:  April 22, 2013

CERTIFICATE OF SERVICE

I, Elizabeth E. Theran, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 22nd day of April, 2013.  I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system:

 

Counsel for Intervening Plaintiff-Appellant:

Donald A. Donati

Donati Law Firm

1545 Union Ave.

Memphis, TN 38104

(901) 278-1004

Don@donatilaw.com

Counsel for Defendant-Appellee:

Jacqueline E. Kalk

Littler Mendelson

80 S. Eighth St.

Suite 1300 IDS Center

Minneapolis, MN 55402

(612) 313-7645

jkalk@littler.com

 

 

 

 

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

 

 

 

 

 

 

 

 

 

 

 

 

ADDENDUM

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS