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Brown v. Fowler Games, Inc.

United States District Court, S.D. Mississippi, Northern Division

November 29, 2017




         Defendant Fowler Games, Inc., seeks summary judgment on Plaintiff Charles D. Brown's employment-discrimination claims against it, arguing that it was not Brown's employer. Because Brown has created a question of fact on this issue, Fowler's Motion for Summary Judgment [21] is denied.

         I. Facts and Procedural History

         Since 1989, Plaintiff Charles D. Brown, who is black, has performed seasonal work at the Mississippi State Fair in Jackson, Mississippi. In or around 2004 or 2005, he began working under David “Taco” Sanchez. Sanchez leased several game booths from Defendant Fowler Games, Inc., which, in turn, leased space from North American Midway.

         In October 2015, Brown called Sanchez about working his booths that year, and Sanchez advised Brown when to report to the fairgrounds to begin set-up. Brown reported for work on Monday, October 5, and was issued a badge with the North American Midway name and logo on the front and “Fowler Games” on the back. On Friday, October 9, Brown says Sanchez referred to him with a racial slur, terminated his employment, and replaced him with a white worker.

         Brown filed a charge of discrimination with the EEOC, and on July 26, 2016, he filed this lawsuit against Fowler, asserting claims under Title VII and § 1981 for race discrimination and retaliation. He also asserted a state-law claim for negligent infliction of emotional distress. See Am. Compl. [4] at 4. Following the close of discovery, Fowler filed its summary-judgment motion on the federal claims. The Court has personal and subject-matter jurisdiction and is now prepared to rule.

         II. Standard

         Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).

         III. Analysis

         Fowler says it is entitled to summary judgment on Brown's employment-discrimination claims because it was not his employer for purposes of liability under Title VII or § 1981. Title VII proscribes discrimination by “an employer.” 42 U.S.C. § 2000e-2(a). Fowler argues, and Brown does not dispute, that employment-discrimination claims brought under § 1981 likewise require the existence of an employer-employee relationship between the parties. See Anderson v. Sikorsky Support Servs., Inc., 66 F.Supp.3d 863, 872-73 (S.D. Tex. 2014) (“The standard of proof for Title VII discrimination claims also applies to § 1981 claims.”).

         When determining whether the defendant was the plaintiff's statutory employer, the Fifth Circuit applies “the ‘economic realities/common law control test.'” Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 434 (5th Cir. 2013) (quoting Diggs v. Harris Hosp.-Methodist, Inc., 847 F.2d 270, 272 (5th Cir. 1988)). Here, the parties focused on the common-law control test, so the Court will do the same.

         “The common law control portion of the test . . . assesses ‘the extent to which the one for whom the work is being done has the right to control the details and means by which the work is to be performed.'” Id. (quoting Diggs, 847 F.2d at 272). The Fifth Circuit has identified the following factors as “pertinent to the analysis”:

(1) the kind of occupation, 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 individual in question furnishes the equipment used and the place of work;

(4) the length of time during which 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 [, ] i.e., by one or both parties, with or without notice and explanation;

(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 ...

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