E-Alert Case Updates

In an unpublished opinion, the Fourth Circuit affirms United States District Court of the District of Maryland ruling that Lesbian Plaintiff had not proven Defendant was her “Employer” for the purposes of Employment Discrimination under Howard County, Maryland Code §§ 12.208, I(a) and II(a)(1)

Karen E. Greene v. Harris Corporation & Harl Dan Pierce
No. 14-1601 (June 22, 2016) United States Court of Appeals for the Fourth Circuit.
by Marie Claire Langlois, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.ca4.uscourts.gov/Opinions/Unpublished/141601.U.pdf

Karen Greene originally filed a claim in the Circuit Court for Howard County under Howard County, Maryland Code §§ 12.208, I(a) and II(a)(1), claiming discrimination by an employer based on her sexual orientation and personal appearance. Upon Plaintiff’s removal to the United States District Court of the District of Maryland, Defendants filed a 12(b)(6) Motion to Dismiss stating that Plaintiff had failed to plead sufficient facts to show Defendant was in fact her “employer” under the regulation. The District Court granted the motion and Plaintiff appealed.

Greene provided janitorial services to Harris for fourteen (14) years prior to her employment with Eurest Services, Inc. (“Eurest.”) During this period of employment, in October 2008, Defendant Pierce began working for Harris in Columbia, Maryland. Pierce made multiple comments regarding Greene’s physical appearance and dress, including that she was “frumpy, dumpy, and dress[ed] like a man in flannel and jeans.” According to “eye witnesses,” Greene’s appearance “really bothered [Pierce]” and when he learned that Greene was a lesbian, Pierce appeared “visibly upset [and] disgusted.”

It was soon after learning of Greene’s sexual orientation that Pierce decided to terminate Greene’s janitorial services on the basis that she charged too much money, and asking Greene to stay on only until he could find a replacement service. Harris’ replacement contract was with Eurest, who interestingly enough, hired Greene just nine (9) months later to provide full-time services to Harris’ offices. Almost immediately after Greene’s arrival at the Harris offices, Pierce saw Green and had security escort her off the premises. Pierce placed a telephone call to Eurest stating that Harris had banned Greene from their premises, asking them to remove Greene from working at the Harris offices. Greene was subsequently terminated from working for Eurest.

The District Court dismissed both Greene’s claim for discrimination and for tortious interference. On the first claim, the court looked to Butler v. Drive Automotive Industries of America, Inc. for guidance. 793 F.3d 404, 408 (4th Cir. 2015). “Employer” is defined under Howard County, Maryland Code §§ 12.208, I(a) and II(a)(1) as analogous to the definition in Title VII of the Civil Rights Act of 1964. Therefore, the court was “guided by federal precedent in interpreting [it’s definition.]” In Butler, the Court recognized the “joint employment doctrine,” under which a person could be considered an employee of more than one employer. Greene was clearly employed by Eurest, but a question remained as to whether she had proven Harris was also her “employer.”

The court in Butler established a nine-factor test to “determine whether an employee of a staffing agency also was employed by the client to which she was assigned:”

(1) [the putative employer’s] authority to hire and fire the individual;
(2) [the] day-to-day supervision of the individual, including employee discipline;
(3) whether the putative employer furnishes the equipment used and the place of work;
(4) possession of and responsibility over the individual’s employment records, including payroll, insurance, and taxes;
(5) the length of time during which the individual has worked for the putative employer;
(6) whether the putative employer provides the individual with formal or informal training;
(7) whether the individual’s duties are akin to a regular employee’s duties;
(8) whether the individual is assigned solely to the putative employer; and
(9) whether the individual and putative employer intended to enter into an employment relationship.

Greene drew attention to four (4) distinct aspects of the contract between Harris and Eurest to support her contention that Harris was an employer: (1) Harris provided cleaning supplies to the Eurest janitorial staff, (2) Harris retained the ability to both interview and reject potential staff members “based on their experience,” (3) there was an on-site Harris employee supervisor assigned to monitor the Eurest staff, and (4) Harris selected the days Eurest staff would work. The Court did not find these aspects enough to answer the Butler test in the affirmative. Although the factors in Butler were not meant to be mechanically applied, the four (4) relevant factors in the Eurest contract only illustrated a relationship parallel to a vendor providing services to a business client.

Additionally, the Court explained that Greene had not proven the falsity of Pierce’s defaming statements, for the purpose of her tortious interference claim. Because Greene had not met her burden, both claims were dismissed.

The dissent found significant issue with the majority’s holdings. Chief Judge Traxler makes it very clear that he believes the majority failed to read the facts in favor of the Plaintiff. “For purposes of the Rule 12(b)(6) motion, all of the factual allegations in the complaint must be accepted as true, and all reasonable inferences must be drawn in favor of Greene.” See Write v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015). Judge Traxler provides a much more details recollection of the facts, drawing directly from Greene’s complaint and suggesting his preference towards a finding of discrimination. While none of the Butler factors are dispositive, the first three are the “most important,” Butler, 793 F.3d at 414, and because Harris reserved much of the first three factors for themselves, Harris retained much more than a “mere modicum of control.” Moreover, the facts in Butler did not set the outer boundary of “joint employment” relationships. For these reasons, the dissent finds dismissal of the discrimination claim to be inappropriate.

Similarly, the dissent believes that Greene has stated facts sufficient to plausibly support that Pierce engaged in intentional and willful acts to damage Greene’s work reputation with Eurest, based on his animus towards lesbians. “The majority appears to draw the factual inference that Pierce’s statement to Eurest must be true, and therefore could not be defamatory[,]” but by doing this, the majority it reading the facts most favorable to Pierce, and not Greene.

Yet, the majority leaves a window open for Greene. “[B]ecause Green did not challenge in her complaint Harris’ earlier decision, in March 2010, to terminate her longstanding contract with Harris, we have not considered any indicia of employment that may have been present in that prior relationship. Thus, we necessarily have decided only the case that Greene has set before us.” While the dissent might argue that this previous relationships has relevance to the present case, in that it helps to draw inferences regarding the nature of the second termination, the majority’s language suggests that she may still bring a new claim regarding her original termination in March 2010.