Equal Employment Opportunity Commission v. Skanska USA Building, Inc. , 550 F. App'x 253 ( 2013 )


Menu:
  •                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 13a1021n.06
    Nos. 12-5967; 12-6236
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    EQUAL EMPLOYMENT                  OPPORTUNITY           )                        FILED
    COMMISSION,                                             )                  Dec 10, 2013
    )              DEBORAH S. HUNT, Clerk
    Plaintiff-Appellant,                             )
    )
    MAURICE KNOX,                                           )
    )
    Intervening Plaintiff-Appellant,                 )
    )
    v.                                                      )    ON APPEAL FROM THE UNITED
    )    STATES DISTRICT COURT FOR
    SKANSKA USA BUILDING, INC.,                             )    THE WESTERN DISTRICT OF
    )    TENNESSEE
    Defendant-Appellee.                              )
    )
    )
    Before: ROGERS and KETHLEDGE, Circuit Judges; and BORMAN, District Judge.*
    KETHLEDGE, Circuit Judge. Skanksa USA Building, Inc. was the general contractor for
    a construction site in Memphis. A Skanska subcontractor hired Maurice Knox and several other
    African-American men to operate a temporary elevator at the site. They were subjected to extensive
    harassment based on their race. The Equal Employment Opportunity Commission and Knox
    thereafter sued Skanska, alleging racial discrimination and retaliation in violation of Title VII,
    42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Although Skanska did not employ Knox directly,
    *
    The Honorable Paul D. Borman, United States District Court Judge for the Eastern District
    of Michigan, sitting by designation.
    No. 12-5967
    EEOC v. Skanska USA Building, Inc.
    the plaintiffs argue that Skanksa acted as his joint employer. The district court disagreed and granted
    summary judgment to Skanska. We reverse.
    I.
    We take the facts in the light most favorable to the plaintiffs. See Scott v. Harris, 
    550 U.S. 372
    , 378 (2007). Skanska is a general contractor. From 2007 to 2010, Skanska managed the
    construction of a new hospital facility in Memphis, Tennessee for Methodist Le Bonheur Healthcare.
    Skanska coordinated the work of its subcontractors. One of those subcontractors was C-1, Inc., a
    small contractor owned by Gerald Neely.
    A.
    Skanska contracted with C-1 to provide operators for the construction site’s two buck hoists.
    Buck hoists are temporary elevators that run up and down the outside of buildings under
    construction. C-1 hired Maurice Knox, Samuel Burt, and Robert Vassar, among others, as buck-
    hoist operators for the Le Bonheur project. All three men are African-American. Skanska paid C-1
    $18 per hour per operator; in turn, at Skanska’s suggestion, C-1 paid the operators $9 per hour.
    Under the terms of C-1’s subcontract with Skanska, Neely would supervise the buck-hoist
    operators, but Skanska could remove an operator from the site if the employee was “incompetent,
    disorderly, or otherwise unsatisfactory.”
    In reality, however, C-1 had minimal oversight over the operators.                 Their daily
    responsibilities and assignments were “directed by Skanska.” Skanska set their hours, collected
    their time sheets, taught them how to use the buck hoist, and required them to attend safety training.
    Moreover, contrary to the terms of its contract with Skanska, C-1 did not employ anyone to
    -2-
    No. 12-5967
    EEOC v. Skanska USA Building, Inc.
    supervise the operators on-site. Instead, Skanska employees supervised them. Skanska eventually
    assigned another subcontractor’s employee, Bernie Smith, to supervise the operators. At the
    suggestion of a Skanska employee, Smith kept detailed notes regarding the operators’ job
    performance.
    Neely came to the site only a few times. Skanska did not tell Neely “anything that [went]
    on with the buck hoist[,]” and one of the operators had to call Neely on his cell phone whenever a
    buck hoist broke. Skanska also carried workers’ compensation and liability insurance for C-1’s
    employees.
    When Skanska removed an operator from the job site, C-1 generally fired the worker without
    requiring Skanska to provide an explanation for the removal. Several months into the contract,
    Skanska asked C-1 to replace Samuel Burt and another employee because of “personality issues.”
    Neely replaced these workers without being “clear . . . what the exact issues and/or problems were.”
    Removal from the site typically ended an operator’s employment with C-1, because C-1’s contracts
    with its laborers were job-specific.
    B.
    Knox began working at the Le Bonheur site in August 2009. Shortly thereafter, other
    workers at the site called Knox a “monkey” and a “n-----.” Knox also saw racist graffiti in the
    portable toilets, including the word “n-----,” the phrase “n-----s have to leave,” and “a depiction on
    the toilet walls of a white person holding a shotgun and shooting a black person.” Burt also heard
    workers refer to the operators as “n-----s” and “black motherf-----s.” Although Burt called Neely
    each day to report these incidents, Neely merely told him to tell Skanska about them. Knox and Burt
    -3-
    No. 12-5967
    EEOC v. Skanska USA Building, Inc.
    also complained repeatedly about the name-calling and graffiti to two of Skanska’s managers,
    Norberto Jiminez and Robert Jones. Neither manager took action.
    Other workers likewise subjected Robert Vassar to racial comments “every single day” after
    he began work at the Skanska site. When the workers thought that Vassar took too long to pick
    them up in the buck hoist, they would call him racial slurs over the walkie-talkie. Skanska’s
    manager, Jimenez, could hear the slurs over the walkie-talkie, but apparently did nothing about
    them. One day in August 2009, Vassar came to work using crutches for a broken leg. A Skanska
    supervisor told him to “get the hell off my jobsite” and that “[y]ou n-----s always think you[] are
    heroes.” Vassar called Neely, who told Vassar that “there was nothing he could do” about it.
    On August 19, 2009, while Knox was operating the buck hoist, someone threw liquid from
    a porta-potty onto his arms and into his eyes, which immediately began to swell. Knox told Neely
    and Jiminez about the incident and said that he needed to go home to clean himself. Knox returned
    to work on August 21, 2009. Later that day, he had an altercation with another contractor’s
    employee. Someone reported the incident to Jiminez, who went to investigate. When Jiminez
    arrived on the scene, the other subcontractor’s employee admitted to using racial slurs towards
    Knox. Jiminez sent Knox home to “calm down.”
    After the August 21 incident, Skanska executive Mike Rayburn replaced all of the C-1
    operators with Skanska employees. Neely approached Le Bonheur Healthcare’s Vice President of
    Facilities Management, David Rosenbaum, to appeal this decision. Rosenbaum ordered Skanska
    to “reinstate[]” C-1 as a subcontractor and gave C-1 permission to bring back whomever it wanted.
    Neely brought back Knox and Burt.
    -4-
    No. 12-5967
    EEOC v. Skanska USA Building, Inc.
    Knox and Burt returned to the site on August 27. Shortly thereafter, Rayburn met with
    Knox, Burt, and a Skanska-designated supervisor. Rayburn was unhappy “because [Knox and Burt]
    were representing Skanska, [and] they did not exhibit what I wanted them to exhibit.” Rayburn told
    Knox, Burt, and the supervisor that, when “people come on the job, . . . [and see] tension between
    individual employees that work for us . . . or work, you know, under our direction . . . I think you’ve
    got to change that.” Rayburn did not tell Neely about the meeting. On September 1, Skanska also
    distributed a document—entitled “Buck-hoist Operator Responsibilities”—which outlined the
    operators’ work hours, breaks, and duties. Two days later, Skanska removed Knox from the site for
    using his cell phone while on the job. Burt remained at the site, but continued to hear racial slurs
    every day. He left the site when Skanska discontinued using the buck hoist.
    C.
    The Equal Employment Opportunity Commission thereafter sued Skanska for subjecting
    Knox and the other buck-hoist operators to a hostile work environment because of their race, in
    violation of Title VII, 42 U.S.C. § 2000e-2(a). The EEOC also alleged that Skanska had retaliated
    against Knox and the other workers for complaining about the harassment. Knox filed a motion to
    intervene, which the district court granted. The EEOC and Knox moved for partial summary
    judgment on the ground that Skanska was the operators’ joint employer and thus liable under Title
    VII. Skanska cross-moved for summary judgment. The court denied the plaintiffs’ motions and
    granted Skanska’s motion. This appeal followed.
    -5-
    No. 12-5967
    EEOC v. Skanska USA Building, Inc.
    II.
    We review the district court’s decision to grant summary judgment de novo. See Fuhr v.
    Hazel Park Sch. Dist., 
    710 F.3d 668
    , 673 (6th Cir. 2013).
    A.
    Title VII prohibits employers from discriminating 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 also prohibits
    employers from retaliating against their employees or applicants for employment “because [they]
    ha[ve] opposed any practice made an unlawful by [Title VII], or because [they] made a charge,
    testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under
    [Title VII].” 
    Id. § 2000e-3(a).
    Skanska did not employ the buck-hoist operators directly. The parties both assume that a
    defendant can be liable under Title VII pursuant to a joint-employer theory. We have made the same
    assumption in dicta. See Sanford v. Main St. Baptist Church Manor, Inc., 449 F. App’x 488, 491
    (6th Cir. 2011). And three other circuits have actually applied the test to determine whether an
    entity is liable under Title VII. See, e.g., E.E.O.C. v. Pac. Mar. Ass’n, 
    351 F.3d 1270
    , 1277 (9th
    Cir. 2003); Graves v. Lowery, 
    117 F.3d 723
    , 727 (3d Cir. 1997); Virgo v. Riviera Beach Associates,
    Ltd., 
    30 F.3d 1350
    , 1359 (11th Cir. 1994). Thus, although the parties have not briefed the doctrine’s
    applicability, we apply the doctrine here.
    Entities are joint employers if they “share or co-determine those matters governing
    essential terms and conditions of employment.” Carrier Corp. v. NLRB, 
    768 F.2d 778
    , 781 (6th Cir.
    -6-
    No. 12-5967
    EEOC v. Skanska USA Building, Inc.
    1985). To determine whether an entity is the plaintiff’s joint employer, we look to an entity’s ability
    to hire, fire or discipline employees, affect their compensation and benefits, and direct and supervise
    their performance. 
    Id. Here, Skanska
    supervised and controlled the operators’ day-to-day activities
    without any oversight from Neely. As a general matter, Skanska routinely exercised its ability to
    direct and supervise the operators’ performance. Skanska set the operators’ hours and daily
    assignments. Skanska assigned the operators’ supervisors. When the operators complained about
    the conditions on site, Skanska handled their complaints. When the operators had disagreements
    with their supervisors, Skanska arranged a meeting to discuss the situation. Moreover, Skanska did
    not consult with Neely about the operators’ complaints or their conflicts with Skanska’s supervisors.
    And when the operators called Neely to ask him to improve conditions at the site, Neely did nothing.
    Particular incidents likewise demonstrate Skanska’s control over the operators. As discussed
    above, Skanska executive Mike Rayburn called a meeting with Knox, Burt, and a Skanska-
    designated supervisor because “[the buck-hoist operators] were representing Skanska” and the
    operators “work, you know, under our direction.” No one told Neely about this meeting. Skanska
    also had Knox and Burt sign a document—typed on Skanska letterhead—entitled “Buck-hoist
    Operator Responsibilities.” And Skanska repeatedly removed C-1’s operators from the job site
    without any challenge from Neely.
    The reality is that C-1 was a nonentity on the construction site. That the terms of C-1’s
    contract with Skanska envisioned a more active role for C-1 is besides the point. Viewed in the light
    -7-
    No. 12-5967
    EEOC v. Skanska USA Building, Inc.
    most favorable to the plaintiffs, the record here is enough to support a determination Skanska jointly
    employed the operators.
    The district court’s judgment is reversed, and the case remanded for further proceedings
    consistent with this opinion.
    -8-
    

Document Info

Docket Number: 12-5967, 12-6236

Citation Numbers: 550 F. App'x 253

Judges: Rogers, Kethledge, Borman

Filed Date: 12/10/2013

Precedential Status: Non-Precedential

Modified Date: 10/19/2024