(Id.) Additional items such as radios, pagers or phones may be leased from Seko. However, independent contractors, such as Jones, are permitted to secure these items from any source available. (Id.)
Seko does not require its drivers to wear uniforms in order to perform pick-up and delivery service. (Id.) Certain assignments, however, will not be offered to a driver unless he is willing to wear Seko logo attire because certain buildings do not allow any delivery men to enter who are not in uniform. Jones relies on a single Seko memorandum, dated April 1992, which relates to customer complaints about non-uniformed drivers. This memo reminds drivers that a uniform consists of both pants and shirts and that non-compliance will result in suspension. Yet, this memorandum does not conflict in any material way with Mr. Barsano's explanation that such uniform requirements pertain only to certain delivery assignments.
On balance, the Court finds that the location of work, and source of instrumentalities and tools favors a finding that Jones is an independent contractor.
The Duration Of The Relationship Of The Parties
Jones' affidavit indicates that he has been a messenger service driver solely for Seko since 1989 and that Seko has been his only source of income for this period. (Jones Aff. P 2).
This factor favors the finding of an employee/employer relationship.
Method of Payment And Benefits
All of Seko's business records consistently treat Jones as an independent contractor. (Barsano Aff. Ex. A). For example, Jones has signed a written acknowledgment of his independent contractor status confirming that he is not entitled to any employee benefits; and Seko does not provide employee benefits to any of its drivers. (Id.) Seko's records reflect that Jones receives his compensation on a per piece delivery basis. (Id.) Seko makes no deductions for taxes or other contributions from Jones' compensation. (Id.) Most significantly, Jones has received 1099 Miscellaneous Income forms from Seko reflecting that his compensation is as an independent contractor. (Id.)
Seko's manner of payment, which is properly documented, is clear evidence that Jones is an independent contractor. These documents, which are not open to subjective interpretation and were prepared well in advance of this litigation, conclusively establish Jones' status as an independent contractor.
After analyzing each of the common law test factors, this Court concludes that Seko did not control Jones and that Jones is therefore not an employee covered by Title VII. Only two of the relevant factors tend to establish that Jones was an employee of Seko -- the length of their relationship and the lack of special skills for Jones' delivery person job. All the other common law factors, including the critical control factor, establish that Jones is an independent contractor. This Court finds no distinction between Jones' delivery person position and the Seventh Circuit's treatment of the limousine driver in Ost. Both are independent contractors.
Jones has failed to meet his burden of establishing that the defendant is an "employee" as defined by Title VII. This Court feels it is unfortunate that it cannot preside over Jones' allegations of racial discrimination. Yet, Jones' status as an independent contractor is not covered by Title VII -- which reaches only employee/employer relationships as defined by Congress. Thus, the Court has no choice but to grant the defendant's motion to dismiss. Plaintiff's complaint is hereby dismissed with prejudice and the Clerk of the Court is directed to enter judgment in favor of defendant Seko.
United States District Judge
January 29, 1997
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED Pursuant to this Court's Memorandum Opinion and Order dated January 29, 1997, Defendant Seko Messenger, Inc.'s motion to dismiss Plaintiff's complaint is granted. Judgment is entered in favor of the Defendant Seko Messenger, Inc. and against the Plaintiff Johnnie B. Jones. This case is hereby dismissed with prejudice. This cause of action is dismissed in its entirety. There being no just reason for delay, this is a final and appealable order.
January 29, 1997
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