Beverly Prather v. Prudential Fox & Roa , 326 F. App'x 670 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-19-2009
Beverly Prather v. Prudential Fox & Roa
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3374
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"Beverly Prather v. Prudential Fox & Roa" (2009). 2009 Decisions. Paper 1166.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3374
___________
BEVERLY PRATHER,
Appellant
vs.
PRUDENTIAL FOX & ROACH
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 07-cv-01264)
District Judge: Honorable Stewart Dalzell
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 16 2009
Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges
Opinion filed: June 19, 2009
___________
OPINION
___________
PER CURIAM.
Beverly Prather, pro se, appeals from the District Court’s grant of the
appellee’s motion for summary judgment and the denial of her own motion for summary
judgment. For the reasons that follow, we shall affirm the District Court’s order.
1
From June to November, 2005, Prather worked at Prudential Fox & Roach
(“PFR”), a real estate company, as a temporary administrative aide. She received the job
through a staffing service called OfficeTeam. In 2007, Prather filed a complaint in the
Eastern District of Pennsylvania asserting a claim under Title VII of the Civil Rights Act
of 1964. In particular, Prather alleged that she had been subject to sexual harassment in a
hostile work environment on several occasions on the PFR premises by an independent
contractor sales associate working for PFR. Both Prather and PFR filed motions for
summary judgment. PFR asserted that since Prather worked for an independent
contractor and not for PFR, she was not entitled to relief under Title VII. Prather argued
that there existed no genuine issue of material fact on her sexual harassment claim and
that she was entitled to judgment as a matter of law. On July 18, 2008, the District Court
issued an order granting PFR’s summary judgment motion and denying Prather’s motion.
A timely notice of appeal followed.
Because summary judgment is appropriate only where there is no issue of
material fact and judgment is appropriate as a matter of law, our review of a grant of
summary judgment is plenary. Rosen v. Bezner, 996 F.2d 1527, 1530 (3d Cir. 1993)
(citing Jefferson Bank v. Progressive Cas. Ins. Co., 965 F.2d 1274, 1276 (3d Cir. 1992));
see Fed. R. Civ. P. 56(c). After reviewing the record, we will affirm the District Court’s
grant of summary judgment.
To establish a sexual harassment claim under Title VII of the Civil Rights
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Act, Prather must first establish that she in fact was an employee of PFR, and not of
OfficeTeam, her temporary staffing agency. See Menkowitz v. Pottstown Mem’l Med.
Ctr., 154 F.3d 113, 127-28, n.5 (3d Cir. 1998) (stating that, as under Title VII,
“independent contractors are not employees within the meaning of the ADEA”) (Scirica,
J., concurring in part, dissenting in part) (citing Equal Employment Opportunity Comm’n
v. Zippo Mfg. Co., 713 F.2d 32 (3d Cir. 1983)). In order to determine whether a person is
an employee for purposes of Title VII, the common law of agency and the traditional
master-servant doctrine applies. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
322-24 (1992).1 The court should consider:
the hiring party’s right to control the manner and means by
which the product is accomplished [;] . . . the skill required;
the source of the instrumentalities and tools; the location of
the work; the duration of the relationship between the parties;
whether the hiring party has the right to assign additional
projects to the hired party; the extent of the hired party’s
discretion over when and how long to work; the method of
payment; the hired party’s role in hiring and paying assistants;
whether the work is part of the regular business of the hiring
party; whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired party.
Id. at 323-24.
The District Court found that under Darden, Prather was not an employee of
1
As the District Court notes, Darden was an ERISA case, not a Title VII case.
However, the statutory language is identical. Furthermore, the Supreme Court has
applied Darden in other employment discrimination contexts where the statutory
definition of employee is the same as that in ERISA. See Clackamas Gastroenterology
Assocs. v. Wells, 538 U.S. 440, 444-45 (2003).
3
PFR. After reviewing the record, we agree with that assessment. Prather sent her time
sheets to, and received her paycheck directly from, OfficeTeam; a W2 from 2005
identifies OfficeTeam’s parent company, Robert Half International, as Plaintiff’s
employer; OfficeTeam paid her social security taxes and worker’s compensation
insurance; Prather contacted OfficeTeam rather than PFR if she could not attend work or
had to see a doctor; PFR could only use Prather for services within the scope of the
agreement with OfficeTeam; PFR did not have the ability to terminate her employment;
and PFR was responsible to OfficeTeam for supervision of her work. The only evidence
Prather submitted was an application for a commission as a notary public in which she
listed PFR as her employer. However, as the District Court noted, this evidence is not
dispositive since it was Prather, and not PFR, who filled out the form. In conclusion, the
District Court properly granted PFR’s summary judgment motion because there existed
no genuine issue of material fact as to whether Prather was an employee of PFR. For the
same reason, the District Court properly denied Prather’s summary judgment motion.
Finally, we will deny Prather’s “demand” for disclosure and restitution. To
the extent she seeks disclosure of the “amount of funds” this Court has received, we
remind her that all fees for appeals are payable to the District Court, not the Court of
Appeals. Her request for restitution of such funds is thus denied. Costs will be assessed
to the appellant. See Fed. R. App. P. 39(a)(2); LAR 39.
4