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JONES v. SEKO MESSENGER

January 29, 1997

JOHNNIE B. JONES, Plaintiff,
v.
SEKO MESSENGER, INC., Defendant.



The opinion of the court was delivered by: CASTILLO

 Plaintiff, JOHNNIE B. JONES, ("Jones"), brings a one-count complaint against defendant, SEKO ROCKET ENTERPRISES, INC., d/b/a SEKO MESSENGER, INC., ("Seko") based upon an alleged violation of 42 U.S.C. § 2000(e), Title VII of the Civil Rights Act of 1964. Jones generally alleges that as an employee of Seko he was subject to workplace racial discrimination by disparate impact and treatment. Defendant Seko has filed a motion to dismiss, which is currently pending before the Court. Defendant Seko contends that this Court lacks jurisdiction, based on Jones' inability to show that he was an employee covered by Title VII. For the reasons that follow, defendant Seko's motion is granted.

 STANDARDS

 Seko seeks the dismissal of this action based in part on the affidavit of its corporate secretary, James Barsano. Plaintiff has opposed the motion by relying on his own affidavit. While the Court is ordinarily limited to an analyzing of the complaint on a motion to dismiss, we may nevertheless consider these affidavits without converting the motion to one for summary judgment because Seko is asserting that the court lacks jurisdiction over the plaintiff's claims. Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986); Castor v. United States, 883 F. Supp. 344, 348 (S.D. Ind. 1995). When confronted with a jurisdictional dispute, the district court is entitled to receive appropriate evidentiary submissions to resolve it -- "any rational mode of inquiry will do." Crawford, 796 F.2d at 929. It must then decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue. "The only exception is in instances when the jurisdictional issue is 'so bound up with the merits that a full trial on the merits may be necessary to resolve the issue.'" Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990) (quoting Crawford, 796 F.2d at 929). That exception is not triggered by the facts of this case.

 Since Seko seeks a case-dispositive outcome based on its motion and has filed evidentiary materials supporting it, Jones has been notified of the proper manner in which to contest Seko's evidentiary materials and the consequences of failing to do so. English v. Cowell, 10 F.3d 434 (7th Cir. 1993). Jones has been afforded "a full opportunity to present contradicting affidavits or materials in order to cure a jurisdictional or party defect not capable of being resolved on the words of the complaint." Id. at 437 (citing Fountain v. Filson, 336 U.S. 681, 69 S. Ct. 754, 93 L. Ed. 971 (1949)). Indeed, Jones has submitted such materials to the court for its consideration in ruling on the instant motion, after being given an opportunity to proceed with formal discovery, including the deposition of James Barsano. Therefore, it is appropriate for the Court to decide the pending motion based on the parties' submissions.

 ANALYSIS

 The issue before the Court is whether Jones is Seko's "employee", a status protected under Title VII, or whether he is merely an independent contractor. The Seventh Circuit recently addressed the distinction between an employee and an independent contractor in Alexander v. Rush North Shore Medical Center, 101 F.3d 487 (7th Cir. 1996). In Alexander, the Seventh Circuit reaffirmed its prior holdings in Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377 (7th Cir. 1991) and Ost v. Western Suburban Travelers Limousine, Inc., 88 F.3d 435 (7th Cir. 1996) and reiterated two principles that apply to this case: (1) a plaintiff must prove the existence of an employment relationship in order to maintain a Title VII action and (2) independent contractors are not protected by Title VII.

 In Ost, which involves facts remarkably similar to this lawsuit, the Seventh Circuit used a common law test to determine that a limousine driver was an independent contractor rather than an employee of a dispatching company. This common law test requires a Court to focus on five factors:

 
(1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations.

 The Supreme Court recently authorized applying a similar control-oriented agency test to determine whether an individual is an employee under the Employee Retirement and Income Security Act ("ERISA"), a statutory codification that defines "employee" at 29 U.S.C. § 1002(6) in the same circular manner as Title VII at 42 U.S.C. § 2000e(f). In Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24, 112 S. Ct. 1344, 1348, 117 L. Ed. 2d 581 (1992), the Supreme Court explained:

 
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are 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. (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S. Ct. 2166, 2178-79, 104 L. Ed. 2d 811 (1989)).

 This Court will independently examine each of the five common law control test factors to evaluate ...


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