971 F. Supp. 2d 862
E.D. Wis.2013Background
- Love, an African-American construction foreman, worked for Union Contracting, Inc. (UCI), a subcontractor on a City Hall renovation where J.P. Cullen & Sons, Inc. (Cullen) was general contractor.
- Love’s duties included supervising laborers and masons; he was paid by and received a W-2 from UCI and expected ongoing employment with UCI after the project.
- Cullen contracted with EMI (a subcontractor) and required subcontractors to use union labor, controlled site access, safety rules, and occasionally supplied bulk materials.
- Cullen’s superintendent, Don Berendsen, decided Love should be removed from the project after an on-site altercation; Love’s last day was February 28, 2008.
- Love sued Cullen under Title VII alleging race discrimination/retaliation, arguing Cullen was his de facto/indirect employer because it controlled his employment; Cullen moved for summary judgment asserting it was not Love’s employer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cullen can be treated as Love’s de facto/indirect employer under Title VII | Cullen exercised sufficient control over Love (site rules, safety training, removal from site, union requirements) to be an indirect employer | Cullen did not hire/pay Love, did not issue W-2 or hire/fire for UCI; its site control and contract provisions do not create an employment relationship | Court held Cullen was not Love’s employer for Title VII purposes; summary judgment for Cullen granted |
| Proper test to determine de facto employer status | Use an "economic realities"/control-focused test (amount of control) | Argues a five-factor test (control, occupation/skill, costs, payment/benefits, job commitment) drawn from independent-contractor context | Court applied a control-focused analysis while finding the five-factor elements useful; control is central |
| Effect of Cullen’s removal of Love from the site | Removal equates to termination and shows Cullen had power to end Love’s employment | Cullen had authority only to remove workers from the site for safety/productivity, not to terminate employment with UCI | Court found Cullen removed Love from the site but did not have authority to terminate UCI employment; that fact alone did not establish employer status |
| Significance of union hiring requirement, safety rules, site access, bulk purchases | These demonstrate Cullen dictated wages, hours, benefits, and controlled conditions of employment | Such requirements are typical general-contractor project controls and do not equate to hiring, paying, or firing responsibility | Court found those factors insufficient to create an employment relationship under Title VII |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burdens)
- Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir.) (multiple entities may be an employee’s employer under Title VII)
- EEOC v. State of Illinois, 69 F.3d 167 (7th Cir.) (focus on amount of control for indirect employer analysis)
- Ost v. W. Suburban Travelers Limousine, Inc., 88 F.3d 435 (7th Cir.) (use of multi-factor test in employment-status analysis)
- Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377 (7th Cir.) (multi-factor test guidance)
- Kerr v. WGN Cont’l Broad. Co., 229 F. Supp. 2d 880 (N.D. Ill.) (control-focused test applied to de facto employer question)