Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 93 C 842--Robert L. Miller, Jr., Judge.
Before CUMMINGS, FLAUM and MANION, Circuit Judges.
ARGUED SEPTEMBER 29, 1995
DECIDED FEBRUARY 22, 1996
Warren Bratton ("Mr. Bratton") delivered packages as an independent contractor for Roadway Package System, Inc. ("RPS") from February 1990 until February 1994. For several years Mr. Bratton's wife, Eugenia Bratton ("Mrs. Bratton"), assisted Mr. Bratton by delivering packages in vehicles owned by the Brattons. In February of 1994, RPS terminated Mr. Bratton's contract, and the instant suit followed against RPS and several of its employees (the defendants will be referred to collectively as "RPS"). Mr. Bratton alleged breach of contract, race discrimination under 42 U.S.C. sec. 1981, a first amendment violation, and failure to pay vacation pay. Mrs. Bratton alleged race and sex discrimination under 42 U.S.C. sec. 1981. The district court granted summary judgment in favor of RPS on all counts. The Brattons appeal the district court's decision with respect to the breach of contract claim and the race and sex discrimination claims.
As we are reviewing a grant of summary judgment, we present the facts in the light most favorable to the Brattons, the non-moving party. Zenith Electronics Corp. v. Panalpina, Inc., 68 F.3d 197, 201 (7th Cir. 1995). Warren Bratton, an African American, entered into a written contract with RPS to pick up and deliver packages in the Elkhart, Indiana area. The contract, drafted by RPS, was entitled "Agreement for Leased Equipment and Independent Contractor Services" ("the Agreement") and was dated February 26, 1990. In the Agreement, RPS identified itself as a "duly licensed common and contract carrier by motor vehicle" operating under authority from the Interstate Commerce Commission and state agencies. Mr. Bratton was identified as an independent contractor.
Pursuant to the Agreement, RPS leased from Mr. Bratton a certain vehicle listed on an addendum to the Agreement, namely a 1990 step van owned by Bratton ("leased equipment"). Mr. Bratton was specifically required to maintain the leased equipment in "accordance with the safety and equipment standards specified in applicable" federal, state, and municipal laws, and Department of Transportation ("DOT") regulations. In fact, many of the provisions in the contract referred exclusively to the leased equipment, including sections on equipment identification requirements, insurance coverage, operating expenses, and liability. However, paragraph eleven of the Agreement stated generally that "[RPS] and [Bratton] each agree to abide by all applicable federal, state and municipal laws and regulations." There is no reference to leased equipment in this section. In addition, in paragraph two of the Agreement, Mr. Bratton agreed to "be responsible for the proper performance of [the] Agreement in accordance with all applicable federal, state and municipal laws, regulations and orders."
Paragraph twelve permitted Mr. Bratton to employ persons to assist him in performing his contractual obligations, but required that "[a]ll persons so employed by [Bratton] shall be qualified pursuant to U.S. Department of Transportation safety standards." The section further provided that such qualified persons:
shall be considered employees or agents of [Bratton], . . . and shall be subject to [Bratton]'s exclusive direction and control including the selection, hiring, firing, supervising, directing, training, setting of wages, hours and working conditions. . . . [Bratton] further agrees to:
A. Bear all expenses associated with qualifying persons employed including, without limitation, the cost of physical examinations, drug screen tests and securing motor vehicle records. . .
Paragraph thirty-two of the Agreement granted Mr. Bratton the right to terminate the contract upon thirty days written notice, and either party the right to terminate the contract "if the other party breaches this Agreement."
Shortly after Mr. Bratton entered the Agreement with RPS, he determined that it would be helpful in meeting his service goals to have Mrs. Bratton, also an African American, deliver packages in another vehicle. To that end, from February of 1990 until August of 1993, Mrs. Bratton would often drive the Brattons' 1984 Ford Ecoliner van to the RPS Elkhart terminal and load it with RPS packages. She would then deliver the packages in a borrowed RPS uniform.
During this time Mr. Bratton did not assemble any documentation of Mrs. Bratton's qualifications, Mrs. Bratton did not submit a DOT application, and RPS did not approve Mrs. Bratton as an authorized driver or have any records of her employment. Mrs. Bratton did not participate in any pre-employment drug screening, nor did she keep any driving log or mileage chart. The van used by Mrs. Bratton was not approved by RPS as a second vehicle. However, it is evident from the record that the RPS Elkhart terminal manager, Fred Coffman, knew of and approved (if not encouraged) the employment of Mrs. Bratton and the use of the Ford Ecoliner. White contractors also used their personal vehicles to deliver RPS ...