United States District Court, N.D. Illinois, Eastern Division
October 20, 2004.
WILLIAM TURNER, Plaintiff,
MONY LIFE INSURANCE COMPANY, Defendant.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Mony Life
Insurance Company's ("Mony") motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the
reasons stated below we deny Mony's motion to dismiss the Title
VII claim (Count I) and we deny Mony's motion to dismiss the
Section 1981 claim (Count II).
Plaintiff William Turner ("Turner") alleges that he was a
Registered Sales Representative for Mony from August of 2000
through October of 2002. Turner claims that Mony employed him "on
inferior and different terms than non-Black Registered Sales Agents, including but not limited to denying
[Turner] the resources and information necessary to succeed at
[Mony], denying [Turner] the opportunity to sell [Mony's]
securities and systematically rejecting virtually every insurance
application from [Turner's] Black clients." (Compl. Par. 7).
Turner specifically contends that he was not able to perform his
job properly because he was not provided with a properly
functioning computer and he was denied consistent access to Mony
computer network which is necessary for obtaining pertinent
information. Turner alleges that he was excluded from Mony
training programs. Turner alleges that the Mony securities
department did not respond to his requests for information.
Turner claims that he asked David Ruter, a manager for Mony, to
assist him in obtaining a response from the securities
department, but Turner received no call from the securities
department. Turner claims that Mony routinely corresponded with
Turner's "Black applicants, without notice to [Turner] but did
not do so with White applicants of White sales employees."
(Compl. Par. 31). Turner alleges that Mony terminated his
employment on October 27, 2001, and that Mony indicated to him
that the termination was due to "insufficient production" on his
part. (Compl. par. 39). Turner filed a complaint in the instant
action alleging discrimination in violation of Title VII of the
Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. (Count I),
and civil rights violations in violation of 42 U.S.C. § 1981
("Section 1981"). LEGAL STANDARD
Federal Rule of Civil Procedure 12 (b)(1) requires a court to
dismiss an action when it lacks subject matter jurisdiction.
United Phosphorus, Ltd. v. Angus Chemical Co. 322 F.3d 942, 946
(7th Cir. 2003). When reviewing a motion to dismiss brought under
Rule 12(b)(1), this court "must accept as true all well-pleaded
factual allegations, and draw reasonable inferences in favor of
the plaintiff." Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.
1995) (citing Rueth v. United States Environmental Protection
Agency, 13 F.3d 227, 229 (7th Cir. 1993)); United Transp. Union
v. Gateway Western Ry. Co., 78 F.3d 1208, 1210 (7th Cir.
1996) (stating that "[i]n considering a motion to dismiss for
lack of subject matter jurisdiction, the district court must
accept the complaint's well-pleaded factual allegations as true
and draw reasonable inferences from those allegations in the
plaintiff's favor."). This court "may properly look beyond the
jurisdictional allegations of the complaint and view whatever
evidence has been submitted on the issue to determine whether in
fact subject matter jurisdiction exists." Ezekiel,
66 F.3d at 897 (quoting Capitol Leasing Co. v. Federal Deposit Insurance
Corp., 999 F.2d 188, 191 (7th Cir. 1993); Transp. Union,
78 F.3d at 1210(stating that the court may consider evidence "at the
dismissal stage when the question raised is one of subject matter
jurisdiction."). The burden of proof in a Rule 12 (b)(1) motion
lies with "the party asserting jurisdiction." United,
322 F.3d at 946.
In ruling on a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the court must draw all reasonable inferences that
favor the plaintiff, construe the allegations of the complaint in
the light most favorable to the plaintiff, and accept as true all
well-pleaded facts and allegations in the complaint. Thompson v.
Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.
2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.
1991). The allegations of a complaint should not be dismissed for
a failure to state a claim "unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). Nonetheless, in order to withstand a motion to
dismiss, a complaint must allege the "operative facts" upon which
each claim is based. Kyle v. Morton High School, 144 F.3d 448,
445-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168
(7th Cir. 1992). Under current notice pleading standard in
federal courts a plaintiff "need to plead facts that, if true,
establish each element of a "cause of action."' See Sanjuan v.
American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251
(7th Cir. 1994) (stating that a "[a]t this stage the
plaintiff receives the benefit of imagination, so long as the
hypotheses are consistent with the complaint" and that
"[m]atching facts against legal elements comes later."). The
plaintiff need not allege all of the facts involved in the claim
and can plead conclusions. Higgs v. Carter, 286 F.3d 437, 439
(7th Cir. 2002); Kyle, 144 F.3d at 455. However, any
conclusions pled must "provide the defendant with at least
minimal notice of the claim," Id., and the plaintiff cannot
satisfy federal pleading requirements merely "by attaching bare
legal conclusions to narrated facts which fail to outline the bases of [his] claim." Perkins,
939 F.2d at 466-67.
Mony argues that Turner was merely an independent contractor
for Mony and that since Turner was not an employee of Mony, the
Title VII claim (Count I) should be dismissed for lack of subject
matter jurisdiction. Mony also argues that the Section 1981 claim
(Count II) should be dismissed for lack of subject matter
jurisdiction to the extent that it contains allegations of
employment-related discriminatory practice and that the Section
1981 claim should be dismissed for failure to state a claim.
I. Title VII Claim (Count I)
Mony argues that Turner cannot succeed on his Title VII claim
because Turner was merely an independent contractor for Mony
rather than an employee.
In support of Mony's contention that Turner was an independent
contractor, Mony points out that Turner signed a Career Contract
that included the following language:
[I]t is the intent of this contract, that you be an
independent contractor. . . . Accordingly, nothing in
this contract, or any rule or regulations established
by the Company, shall create, or be interpreted to
create, the relationship of employee and employer
between you and the Company.
(Career Contract Par. 2(a)). Turner also signed a Registered
Representative Contract which included the language: "[n]othing herein shall be construed
to create the relationship of employer and employee between the
Company and the Representative." (Registered Representative
Contract Par. 2(a)). Title VII defines an "employee" as "an
individual employed by an employer. . . ." 42 U.S.C. § 2000e(f).
The Seventh Circuit has held that "[i]ndependent contractors are
not protected by Title VII." Knight v. United Farm Bureau Mut.
Ins. Co., 950 F.2d 377
, 380 (7th Cir. 1991). In order to
determine whether the plaintiff was an employee or independent
contractor of the defendant employer the court must consider the
following 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 operations, such
as equipment, supplies, fees, licenses, workplace, and
maintenance of operations, (4) method and form of payment and
benefits, and (5) length of job commitment and/or expectations."
Worth v. Tyer, 276 F.3d 249
, 262-63 (7th Cir. 2001). The
most important factor is the degree of control over the
plaintiff's work. Id. (stating that "[i]f an employer has the
right to control and direct the work of an individual, not only
as to the result to be achieved, but also as to the details by
which that result is achieved, an employer/employee relationship
is likely to exist.") (quoting Spirides v. Reinhardt,
613 F.2d 826, 831-32 (D.C. Cir. 1979)).
Turner and Mony provide considerably different versions of the
facts regarding Turner's work for Mony. For instance, Mony claims that
it did not pay for any of Turner's business expenses such as
postage and Turner claims that "Mony bore virtually all of
[Turner's] expenses, excluding his auto expenses and long
distance telephone calls." (P. Ans. Mem. 11). Turner claims that
Mony provided him with an office, a computer, office supplies,
phone for local calls, usage of a fax machine, and postage. Mony
claims that it did not control or supervise Turner's work. Mony
claims that it did not exercise any control over the customers
and potential customers located and contacted by Turner, and did
not control what Mony products Turner offered to customers, or
the sales methods used by Turner. Mony also claims that Turner
was not required to formally report to a supervisor at Mony on a
daily basis. On the other hand Turner claims he was provided with
an office and was required to spend "regular and significant time
in that office" and that there was significant supervision of his
work. (P. Ans. Mem. 9). Turner also claims that he was required
to use a Mony employee as a secretary, that he was only allowed
to sell exclusively for Mony within a territory designated by
Mony, and that Turner was regularly required to access the Mony
website for information. Turner also argues that he was required
to meet minimum sales levels, attend quarterly status meetings at
Mony to report on current and projected sales, and submit the
paperwork for all sales to Mony. Finally, Turner contends that
when Mony thought it warranted Mony would directly contact
prospective customers located by Turner. These are only some of
the clearly disputed facts involved in Turner's work for Mony. Mony argues that we are bound to accept its version of the
facts because it has put its facts in signed affidavits whereas
Turner's allegations remain unsworn allegations. As indicated
above, although for a motion to dismiss based on lack of subject
matter jurisdiction we can consider evidence, nothing requires or
permits us to rule based on the evidence submitted by Mony alone.
It is at the summary judgment stage that the plaintiff may no
longer rely on his pleadings, Fed.R. Civ. P. 56(e), not at the
Mony claims that Knight v. United Farm Bureau Mut. Ins. Co.,
950 F.2d 377 (7th Cir. 1991) is "extremely similar to the
present" case and asks the court to follow the court's reasoning
in Knight. (Mem. 6). The district court which was affirmed in
Knight concluded that the plaintiff was an independent
contractor, but the district court did not make such a ruling at
the pleadings stage. In fact it was not until after a two day
Bench trial that the district court made its findings. Id. at
377; see also Taylor v. ADS, Inc., 327 F.3d 579, 581 (7th
Cir. 2003) (affirming district court's grant of the defendant's
motion for summary judgment because the plaintiff was an
independent contractor); Vakharia v. Swedish Covenant Hosp.,
190 F.3d 799, 802 (7th Cir. 1999) (affirming district court's
grant of summary judgment based on independent contractor issue).
We are cannot based upon the materials before us find that Turner
was an independent contractor. We are not finding that Turner was
an employee, but are only ruling that it is premature at this
juncture to make a determination on this issue. Therefore, we
deny Mony's motion to dismiss the Title VII claim.
II. Section 1981 Claim (Count II)
Mony argues that Turner has failed to state a Section 1981
claim because Turner bases his claim upon insurance contracts
between Mony and insureds. Section 1981 states that "[a]ll
persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other."
42 U.S.C. § 1981(a). Mony argues that since Turner was not a party to the
contracts, Turner did not have his right to contract impacted by
the contracts. Turners explains however, in his answer brief that
his Section 1981 claim is based upon the contracts formed between
Turner and Mony. Mony also argues that since Turner was not an
employee of Mony Turner's Section 1981 claim cannot succeed.
However, as indicated above such arguments are premature at this
juncture. Therefore, we deny Mony's motion to dismiss the Section
1981 claim (Count II).
Based on the foregoing analysis, we deny Mony's motion to
dismiss the Title VII claim (Count I) and we deny Mony's motion to dismiss the
Section 1981 claim (Count II).
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