United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
Clifford Shirley, Jr. United States Magistrate Judge.
case is before the undersigned pursuant to 28 U.S.C. §
636(c), Rule 73(b) of the Federal Rules of Civil Procedure,
and the consent of the parties, for all further proceedings,
including entry of judgment [Doc. 38].
before the Court is Plaintiff's Motion for Partial
Summary Judgment [Doc. 53]. The Defendants filed a Response
[Doc. 62] in opposition to the Motion. The Motion is ripe for
adjudication. Accordingly, for the reasons fully explained
below, the Court finds the Motion [Doc. 53]
not well taken, and it is DENIED.
Complaint [Doc. 1] in this case was filed on December 5,
2014, and raises allegations of sexual harassment by
Defendant Larry Finchum. The present matter before the Court
is whether Plaintiff was an employee or an independent
contractor while working for Defendant Finchum Sports Floors
(“FSF”). The facts are largely disputed. The
parties agree that Plaintiff worked at FSF for about three to
four years from around 2010 to March 7, 2014. [Doc. 54 at
¶ 3, Doc. 62 at 2]. Defendant Finchum claims that
Plaintiff began working as a bookkeeper and did not submit a
job application prior to performing work for FSF and that he
never provided Plaintiff with an employee handbook or
training manual. [Doc. 62 at 2]. In addition, Defendant
Finchum states that he did not keep a personnel file for
does not explain whether she was hired as a bookkeeper, or
what she was actually hired to do, but states that Defendants
provided her verbal lists of duties to perform, they taught
her how to fill out complicated forms for construction
payment requests, and she was required to complete
bookkeeping, payroll, and accounts receivable duties. [Doc.
54 at ¶¶ 17-19, 21, 22].Defendants deny that they
required Plaintiff to perform any tasks outside of the
standard bookkeeping duties. [Doc. 62 at 3]. Plaintiff
asserts, and Defendants do not dispute, that she was assigned
a FSF email account and that Defendants instructed her to
communicate with FSF's clients, vendors, and employees
through that email account. [Doc. 54 at 7]. Plaintiff also
states, and Defendants do not dispute, that she signed her
emails using the FSF signature block. [Doc. 54 at ¶ 11].
On one email, she identified herself as “Office
Manager, ” but Defendants state that Defendant Finchum
never designated Plaintiff with such a title. [Doc. 54 at
¶ 13; Doc. 62 at 3].
parties agree that Plaintiff was paid an hourly rate of
$35.00. [Doc. 54 at ¶ 5; Doc. 62 at 3]. Plaintiff states
that during the three to five days per week that she worked
for Defendants, she performed her work at an office inside
FSF. [Doc. 54 at ¶ 9]. Defendants claim that she divided
the work that she performed between the FSF facility and her
own office at home, although Defendant Finchum testified that
he was not sure whether her home office or the FSF facility
was her primary working location. [Doc. 62 at 2]. Defendants
state that they did not set the hours that Plaintiff worked.
[Doc. 62 at 3]. Both parties agree that Plaintiff worked less
in the off season. [Doc. 54 at ¶ 10; Doc. 62 at 3].
Plaintiff claims that Defendants cut her hours in the off
season, while Defendants claim that they sent her less work
because FSF was in less need of payroll services during such
claims that FSF supplied her with an office, desk, computer,
printer, telephone, paper, postage and basic supplies. [Doc.
54 at ¶ 12]. As an example, she emphasizes an email that
she wrote to Defendant Finchum, stating that she had spent
approximately $653.00 at Staples purchasing office related
supplies on behalf of FSF. [Doc. 54 at ¶ 34]. Defendants
do not dispute these facts but state that Plaintiff used her
own equipment while working from home. [Doc. 62 at 8].
states that Defendants' employees were required to
complete a FSF Employee Self-Appraisal Form and that she
completed a FSF Employee Self-Appraisal Form. [Doc. 54 at
¶ 36]. Defendants deny that Defendant Finchum required
Plaintiff to complete an Employee Self-Appraisal Form. [Doc.
62 at 3]. Further, Defendants assert that Plaintiff completed
a Form 1099 for FSF but never completed a W4 or W2 for FSF.
[Id.]. In addition, they assert that FSF did not
take any taxes out of the payments made to Plaintiff, despite
the fact that they withheld taxes from every FSF employee
paycheck and that they did not provide health insurance or
holiday pay to Plaintiff. [Id.]. Finally, they
assert that Plaintiff had the authority to hire employees for
her own business without interference from FSF and that she
identified as a contract laborer on an EEOC Intake Form.
POSITIONS OF THE PARTIES
moves for partial summary judgment with respect to whether
she was Defendants' employee as opposed to an independent
contractor. Plaintiff asserts the following reasons as to why
she was Defendants' employee: (1) Defendants had a right
to control the manner by which her product was accomplished;
(2) she had to learn new skills to perform other duties
Defendants assigned to her; (3) she worked for Defendants at
least three years, working three to five days per week; (4)
Defendants assigned additional projects to her besides
bookkeeping duties; (5) Defendants had discretion over when
and how she performed her work; (6) Defendants' method of
payment to her was by the hour and not by the job performed
or on a commission basis; (7) some of her work was part of
Defendants' regular business; (8) Defendants provided her
the tools and programs used to perform her work; and (9) the
location of her work was at the office that Defendants owned
respond [Doc. 62] that Plaintiff misrepresents several key
facts in her pleadings and neglects to address voluminous
lines of key testimony from Defendant Finchum's
deposition that clearly establish genuine issues of material
fact with respect to Plaintiff's classification as an
independent contractor. Defendants argue that the facts show
that Plaintiff worked as an independent contractor.
Defendants assert as follows: (1) they did not exercise
control over when and how long Plaintiff worked; (2) prior to
working for Defendants, Plaintiff had taken college courses
in bookkeeping, worked as a bookkeeper for several
businesses, and operated her own bookkeeping business; (3)
the three to four year duration of a business relationship
does not assist Plaintiff in establishing her status as an
employee; (4) Defendant Finchum denied that Plaintiff
performed duties outside of her bookkeeping duties; (5) there
is an issue of material fact with respect to whether
Defendants had discretion over Plaintiff's duties; (6)
hourly pay is not necessarily evidence of an employment
relationship; (7) Plaintiff's work was limited to
bookkeeping responsibilities; (8) Plaintiff also used her own
equipment at her home office; (9) Plaintiff split her time
between FSF facilities and her office and that is the same
arrangement Plaintiff kept with other clients; (10) Plaintiff
was entitled to hire and pay assistants; (11) FSF provided no
employee benefits; and (12) Plaintiff's tax treatment
shows that she was treated as an independent contractor.
STANDARD OF REVIEW
judgment under Rule 56 of the Federal Rules of Civil
Procedure is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party bears the burden of establishing that
no genuine issues of material fact exist. Celotex Corp.
v. Catrett, 477 U.S. 317, 330 n. 2 (1986); Moore v.
Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir.
1993). All facts and all inferences to be drawn therefrom
must be viewed in the light most favorable to the ...