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Farrell v. Finchum Sports Floors

United States District Court, E.D. Tennessee, Knoxville

January 3, 2018

FINCHUM SPORTS FLOORS, a sole proprietorship, and LARRY FINCHUM, Defendant.


          C. Clifford Shirley, Jr. United States Magistrate Judge.

         This 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].

         Now 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.

         I. BACKGROUND

         The 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 Plaintiff. [Id.].

         Plaintiff 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].[1]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].

         The 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 times. [Id.].

         Plaintiff 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].

         Plaintiff 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.].[2] 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. [Id.].


         Plaintiff 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 and controlled.

         Defendants 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.


         Summary 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 ...

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