United States District Court, S.D. Mississippi, Northern Division
CHARLES D. BROWN PLAINTIFF
FOWLER GAMES, INC. DEFENDANT
CDANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
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  is denied.
Facts and Procedural History
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.
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.
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.  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.
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).
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.
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.”).
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.
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
(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
(4) the length of time during which the individual has
(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 ...