ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND VACATING TRIAL DATES
This matter is before the Court on Defendant C.R. England, Inc.’s Motion for Summary Judgment. (Doc. # 55.) For the following reasons, the Motion is granted, the Final Trial Preparation Conference scheduled for September 9, 2011, and the five-day jury trial set to commence on September 26, 2011, are VACATED.
I. PROCEDURAL HISTORY
This action arises from Defendant’s termination of Plaintiff Willie Barlow, Jr. from his job as a security guard and De *1096 fendant’s termination of an oral contractual arrangement with Plaintiffs company, E & W Janitorial, for the provision of janitorial services. On October 14, 2009, Plaintiff, who initiated this action pro se, filed a motion and affidavit for leave to proceed under 28 U.S.C. § 1915. (Doc. # 1.) On October 22, 2009, Plaintiff filed a Title VII Complaint (Doc. # 8), and he amended his Complaint on October 27, 2009 (Doc. # 5). On February 21, 2010, counsel entered her appearance on Plaintiffs behalf (Doc. # 22), and on April 16, 2010, with leave of Court, Plaintiff filed a Second Amended Complaint (“Complaint”) (Doc. # 37). Plaintiff asserts the following five claims of relief: (1) racial discrimination pursuant to 42 U.S.C. § 1981(a) (Claim 1); (2) violation of the Americans with Disabilities Act (Claim 2); (3) wrongful discharge in violation of public policy (Claim 3); (4) race discrimination in violation of Title VII (Claim 4); and (5) violation of the Fair Labor Standards Act (Claim 5).
On February 25, 2011, Defendant filed the instant Motion for Summary Judgment. (Doc. # 55.) Plaintiff responded on April 7, 2011 (Doc. # 68), and Defendant replied on April 18, 2011 (Doc. # 71).
II. FACTUAL BACKGROUND 1
The site manager for Defendant’s maintenance yard, John Smith, hired Plaintiff in February 2005, as a maintenance yard security guard. Mr. Smith served as Plaintiffs supervisor. Plaintiff worked on Friday, Saturday, and Sunday nights from 6:30 p.m. until 6 a.m., at the latest. During his shifts, Plаintiff was the only security guard on duty. A man by the name of Scott Clark covered the remaining night shifts.
As a security guard, Plaintiffs duties included making rounds of the maintenance yard, which comprises an entire city block, to ensure that nothing was amiss on the property and logging the trucks that entered and left the property. Plaintiff was also responsible for reporting anything unusual, including missing company property. A majority of the maintenance yard is secured by a fence with an overhead gate for ingress and egress. In addition to keeping property, supplies, and equipment within the fence’s perimeters, Defendant also stored such items on its property outside the fenced area. Further, in April 2008, much of the property that Defendant typically stored in the secured area was kept in the unsecured area because Defendant was in the process of cleaning out one of its storerooms. Amongst these items were two trailer doors, which were left on the ground next to a Dumpster and covered by discarded pallets.
In addition to security services, in February 2007, Plaintiff started to perform maintenance services for Defendant’s office building through a company called E & W Janitorial & Maintenance Services (“E & W”) that he formed with his business partner, Ernestine Hudson. In connection with E & W, Plaintiff and Ms. Hudson obtained a cleaning license for E & W, created invoices and a separate bank account for E & W, and filed a separate income tax return for E & W.
On June 6, 2007, Plaintiff was injured while performing security guard duties, when a 300-400 pound automatic gate used to enter Defendant’s maintenance yard malfunctioned and hit Plaintiff on his head (the “June 6 Accident”). As a result of the *1097 injuries he sustained, Plаintiff claims to suffer from balance problems and disabling pain in his back, neck, head, and jaw, all of which interfere with his ability to work and make it difficult for him to stand, walk, lift, and stoop. As a result of these injuries, Plaintiffs physician imposed a lifting restriction of not more than 25 pounds. Additionally, Plaintiffs injuries made it difficult for him to perform certain tasks such as moving pallets and breaking up crates. However, Plaintiff never asked Defendant for any accommodation for his disability; rather, on occasion, Plaintiff simply asked mechanics for assistance. Additionally, Plaintiff had access to and used a forklift to move pallets and break up crates. Plaintiff did not have difficulty performing any other aspect of his job.
On June 7, 2007, Plaintiff filed a workers’ compensation claim in connection with his injuries. Plaintiff continued to obtain workers’ compensation for nearly one year, until his employment with Defendant as a security guard was terminated on April 30, 2008. As time passed after the June 6 Accident, Mr. Smith got a general sense that some of Defendant’s employees, such as Darlene Niebuhr, the Workers’ Compensation Manager, and Len Klimiuk, Mr. Smith’s boss, were concerned about possible malingering due to the delay in Plaintiffs recovery from his injuries and Plaintiffs continued receipt of worker’s compensation benefits.
In December 2007, Mr. Smith terminated Defendant’s contract with E & W Janitorial, due to his concern that (1) Plaintiff was performing janitorial services during his security guard shifts and (2) in performing the janitorial services, Plaintiff was lifting weight that exceeded his twenty-five pound limitation.
During Plaintiffs security guard shift for the weekend beginning April 25, 2007, two trailer doors that had been stored outside Defendant’s secured gated area, ten feet away from a Dumpster, went missing. The doors, weighing 300 pounds each and valued at approximately $2,000.00, were located on the ground and attached to wooden pallets with a metal band. Mr. Smith noticed that the doors were missing, upon his arrival at work on the Monday morning following Plaintiffs weekend shift. In an attempt to investigate, Mr. Smith examined video recordings of Defendant’s facility from over the weekend. One of the videos captured a truck with two men arriving at Defendant’s maintenance yard and approaching the area where the trailer doors were located. Defendant represеnts that the video captured the trailer doors on the back of the truck. Plaintiff disputes this representation. However, there is no dispute that the trailer doors went missing and that Plaintiff failed to notice the truck’s arrival and departure and failed to notice that the trailer doors had disappeared.
On April 30, 2008, Mr. Smith terminated Plaintiffs employment as a security guard, as a result of Plaintiffs failure to notice and report that the trailer doors were stolen from Defendant’s property during Plaintiffs shift. Plaintiff disputes the basis for his termination and asserts that he was not responsible for taking an inventory of everything on Defendant’s property; Plaintiff maintains that he was terminated under circumstances giving rise to an inference of discrimination. Despite Plaintiffs termination and the incident giving rise thereto, Mr. Smith had favorably evaluated Plaintiffs performance and described him as “honest,” “stable,” and “dependable;” Mr. Smith had never warned Plaintiff about his performance.
In further support of his claim of race discrimination, Plaintiff points to a single instance that occurred in March 2008 where a co-worker, Randy Wimer, told a joke which repeated a Richard Pryor com *1098 edy routine and included the use of the word, “nigger” in the presence of Mr. Barlow and others. Plaintiff asserts that, after that joke, he was never again invited to lunch in Mr. Smith’s office. The parties disagree as to the reasons why Plaintiff never attended another lunch in Mr. Smith’s office. The parties also disagree as to whether Plaintiff was offended by the joke. However, Plaintiff admits that he never complained to the co-worker, Mr. Smith, Defendant’s corporate headquarters, or human resources about the joke. Nor did Plaintiff ever mentioned the joke until he filed the filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff also admits that he did not hear any other offensive jokes or use of any racial epithets during his presence while he was employed by Defendant.
III. STANDARD OF REVIEW
The purpose of a summary judgment motion is to assess whether trial is necessary.
See Celotex Corp. v. Catrett,
“The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.”
Adler v. Wal-Mart Stores, Inc.,
IV. ANALYSIS
A. CLAIM 1: RACIAL DISCRIMINATION PURSUANT TO 42 U.S.C. § 1981(a) AND CLAIM 4: RACE DISCRIMINATION IN VIOLATION OF TITLE VII
In his Complaint, Plaintiff lodges a racial discrimination claim pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff asserts that, by terminating him, Defendant subjected him to racial discrimination and disparate treatment because of his race. Further, Plaintiff alleges that Defendant deliberately and willfully discriminated against him by “modifying [his] job duties to set him up for failure, not intervening when racial jokes were told at an employee sponsored lunch, not providing [him] with transportation so that he could patrol the Commerce City facility in a timely manner, failing to evaluate [him] and make salary determinations at that time and then terminating him.” (Doc. # 37, ¶ 83.) Finally, Plaintiff asserts that his race was a “determinative factor” in Defendant’s termination decision. (Id., ¶ 85.)
Plaintiff also lodges а claim of race discrimination in violation of Title VII of the Civil Rights Act of 1964, which prohibits an employer from discriminating against any individual on the basis of race, color, religion, sex, or national origin. In support, Plaintiff alleges that Defendant treated him “differently than other similarly situated employees outside his protected class and created a hostile work environment.” (Id., ¶ 113.) As with his § 1981, Plaintiff asserts that Defendant’s stated reasons for his termination were pretextual and that his termination was racially motivated. (Id. ¶ 114.)
“Section 1981 forbids all intentional racial discrimination in the making or enforcement of private or public contracts. In particular, § 1981 protects employees from racial discrimination both in entering into an employment contract and in еnjoying the benefits, privileges, terms and conditions of employment.”
Exum v. U.S. Olympic Comm.,
To establish a claim for wrongful termination under § 1981, a plaintiff must show (1) membership in a protected class; (2) that he suffered an adverse employment action; and (3) that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination.
E.E.O.C. v. PVNF, L.L.C.,
If the plaintiff meets this burden of establishing
a prima facie
case, the burden
*1100
shifts to the defendant to articulate a legitimate, nondiscriminatory reason- for the termination.
1. Plaintiff has failed to establish a prima facie case of unlawful termination on grounds of racial discrimination
Conducting the aforementioned analysis, the Court finds that Plaintiff has failed to establish a prima facie ease of unlawful termination. There is no dispute that Plaintiff belongs to a protected class and that he was terminated. However, Plaintiff has not identified competent evidence that, if taken as true, would establish circumstances giving rise to an inference of discrimination. Tellingly, Plaintiff fails to address whether he has met his burden of establishing a prima facie case at the first step of the aforementioned thrеe-step burden shifting test. Moreover, Plaintiff fails to point the Court’s attention to record evidence that enables him to satisfy his burden. Rather, Plaintiff immediately jumps to the final stage of the three-part test and asserts that “there is ample evidence of pretext.” (Doc. # 68 at 19.)
The reasons for Plaintiffs attempt to sidestep his first-step burden are obvious: there is no evidence in the record that Mr. Smith, the undisputed decision maker, had a discriminatory motive for terminating Plaintiff or for purportedly “modifying” Plaintiffs job duties, 3 not giv *1101 ing him performance evaluations, 4 and getting rid of a company vehicle that Plaintiff used to patrol Defendant’s facility 5 (the “Employment and Business Decisions”). Plaintiff’s suggestions to the contrary are conelusory and speculative. The record contains evidence of only one pоtentially racially-charged situation during Plaintiffs more than three years of employment at C.R. England, Inc., namely an ill-advised joke that involved the N-word, which joke was told by another C.R. England employee in Plaintiffs presence and in Mr. Smith’s office during a workplace lunch.
Although Mr. Smith was not the teller of the joke, Plaintiff intimates that Mr. Smith endorsed the joke and any racial sentiments contained therein because “Mr. Smith did not say anything about the joke being inappropriate at the time.” (Doc. # 55, ¶ 28.) However, such evidence is far too tangential, conelusory, and speculative to support an inference of discrimination underlying Mr. Smith’s decision to terminate Plaintiff. Moreover, even if the teller of the joke had discriminatory views, Plaintiff has failed to present evidеnce that such discriminatory views were held by Mr. Smith, the maker of the at-issue employment decisions, or were so pervasive as to infect the company’s culture or office environment. Further, that Mr. Smith encouraged Plaintiff to work additional hours by providing cleaning services for Defendant through a company Plaintiff owned, undercuts Plaintiffs assertion that Mr. Smith harbored a discriminatory animus and that Plaintiffs termination was racially motivated. Moreover, Plaintiff has not shown a nexus between the purportedly offensive joke and Mr. Smith’s decision to terminate Plaintiff or the other Employment and Business Decisions.'
See Cone v. Longmont United Hosp. Ass’n,
2. Defendant’s Presentation of a Legitimate, Non-Discriminatory Reason
Even if Plaintiff had established a prima facie ease of discriminatory termination, the Court finds that Defendant is entitled to summary judgment on Plaintiffs § 1981 and Title VII claims because it presented evidence of a legitimate, non-discriminatory reason for Plaintiffs termination, and Plaintiff has failed to establish that Defendant’s proffered reason was pretextual.
Defendant has presented evidence that Mr. Smith terminated Plaintiff be *1102 cause Plaintiff “failed to notice and report the stolen trailer doors, and more importantly, failed to accept that his position as a security guard made him responsible for being aware of what was on the C.R. England property, and to report missing property.” (Doc. # 55 at 13.) Although Plaintiff asserts that, as a security guard, he was “not required to know each specific item that was on the property but to monitor and patrol the property and report anything unusual,” (Doc. # 68, at 7, ¶ 45), Plaintiff admits that his security duties included “mak[ing] sure everything on the property was in order, and to log the trucks that came in and out of the property.” (Doc. # 55 at 2, ¶ 5; Doc. # 68 at 4, ¶ 5.) Accordingly, the Court finds that Defendant has presented a legitimate, nondiscriminatory reason for Plaintiffs termination.
3. Plaintiff’s Failure to Establish Pretext
A reason to terminate is not pretextual “unless it is shown both that the reason was false, and that discrimination was the real reason.”
St. Mary’s Honor Ctr. v. Hicks,
Plaintiff asserts that Defendant’s proffered reason for terminating him is pretextual. Specifically, Plaintiff asserts that “the evidence permits a reasonable inference that [Mr. Smith] acted with an ulterior motive and engineered and manufactured the reasons proffered for terminating” Plaintiff. (Doc. # 68 at 19.) However, Plaintiff fails to cite to any evidence concerning racial discrimination in support of this theory. Rather, Plaintiffs theory rests on his filing for workers’ compensation, which has nothing to do with his § 1981 claim. Additionally, Plaintiff baldly asserts that “[i]t is simply implausible that after three years of good service and no complaints[,] Smith would seriously began [sic] to question that Mr. Barlow was not adequately performing his job and would not have informed him of the missing doors had he been aware of them.” (Id. at 21.) Finally, although Plaintiff alleges in his Complaint that he was treated differently from similarly-situated employees, Plаintiff fails to identify a similarly-situated employee who engaged in a similar lapse at work but was more favorably treated by Defendant. In sum, Plaintiff has failed to present evidence that Defendant’s stated reason for Plaintiffs termination was false and that discrimination was the real reason.
Accordingly, the Court finds that summary judgment in Defendant’s favor is warranted in connection with Plaintiff’s first claim for racial discrimination pursuant to 42 U.S.C. § 1981(a) and fourth claim for race discrimination in violation of Title VII.
B. CLAIM 2: VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
In support of the Americans with Disabilities Act (“ADA”) claim, Plaintiff as *1103 serts, in pertinent part, that: (1) he was a person with a disability within the meaning of the ADA, 42 U.S.C. § 12102(2); (2) Defendant knew of Plaintiffs disability and/or regarded Plaintiff as having a disability; (3) Plaintiff was a qualified individual with a disability within the meaning of 42 U.S.C. § 12111(8) in that he was able to perform thе essential functions of the position either with or without a reasonable accommodation; (4) Plaintiffs disability and/or Defendant’s belief that Plaintiff was disabled was a substantial and/or motivating factor in Defendant’s decision to fire Plaintiff; (5) Defendant’s stated reasons for firing Plaintiff were pretextual in that Defendant concocted a false and unjustified reason for firing Plaintiff while at the same time falsely advising Plaintiff and his physician that Defendant had found another job for Plaintiff in a nursing home; (6) Defendant failed and/or refused to provide a reasonable accommodation for Plaintiff’s disability; and (7) Defendant insulted and belittled Plaintiff for his perceived disability.
In the absence of direct evidence of discrimination on the basis disability, courts apply the
McDonnell Douglas
burden-shifting analysis.
MacKenzie v. City & Cnty. of Denver,
In order to establish a
prima facie
case of disability discrimination under the ADA, a plaintiff must demonstrate that he “(1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employer because of that disability.”
Justice v. Crown Cork and Seal Co., Inc.,
In his quest to survive summary judgment, Plaintiff asserts that he “does not claim an actual disability as defined by the ADA. However, [Defendant] did regard him as having a disability.” (Doc. # 68 at 22.) 7 For the following reasons, the Court finds that summary judgment in Defendant’s favor is warranted.
*1104
First, Plaintiff bears the burden of “articulating] with precision the impairment alleged and the major life activity affected by that impairment, and the court is to analyze only those activities identified by the plaintiff. Whether the plaintiff has an impairment within the meaning of the ADA is a question of law for the court to decide. Whether the conduct affected is a major life activity for purposes of the Act is also a legal question for the court.”
Doebele v. Sprint/United Mgmnt. Co.,
Prior to the 2008 amendments which more clearly defined the words, “regardеd as,” a plaintiff had to “show that an employer has mistaken beliefs about the plaintiffs abilities: the employer ‘must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.’ Moreover, the employer must mistakenly believe that the impairment substantially limits the employee in one or more major life activities.”
Jones v. United Parcel Serv., Inc.,
In the instant case, Plaintiff appears to identify the 25-pound lifting restriction as his impairment and lifting or working as the major life activity affected by that impairment. (See Doc. # 68 at 22; Doc. # 37, ¶ 93). Additionally, in the Complaint, Plaintiff asserts that Defendant “regarded Plaintiff as substantially limited in his ability to lift or in his ability to work at England as well as in а class of jobs or a broad range of jobs in various classes in the geographic area surrounding the Commerce City facility.” (Doc. #37, ¶ 93.) However, Plaintiffs own statement of facts greatly undermines his claim that Defendant regarded him as disabled. In particular, Plaintiff states and Defendant admits that, “on March 13, 2008, [and again on April 10, 2008,] Mr. Barlow gave Smith a copy of his physicians [sic] report with a 25 pound lifting restriction. Smith told Barlow that there was nothing wrong with him and he needed to do his job.” (Doc. # 68 at 13, ¶ 39; 14, ¶ 43; Doc. # 71 at 12, ¶ 39; 13, ¶ 43.) Additionally, Plaintiffs deposition testimony reveals that moving pallets and breaking up crates were the only aspects of his job which he had difficulty performing and, when he needed help, he would ask the mechanics for assistance or use a forklift. (Doc. # 55-2 at 95:11-96:20; 170). Moreovеr, Plaintiff does not genuinely dispute that he never requested any accommodation for any disability during the time he worked at C.R. England. (Compare Doc. # 55 at 7, ¶ 37 with Doc. # 68 at 7, ¶ 37.) Finally, because the record fails to demonstrate that Mr. Smith, the at-issue decision maker, regarded Plaintiff as disabled, the record fails to establish a causal link between the termination decision and Plaintiffs purported disability.
Therefore, based on the undisputed facts, Defendant did not regard Plaintiff as disabled. Accordingly, because the record demonstrates that Defendant did not regard Plaintiff as disabled and Plaintiff acknowledges that he was not actually disabled as defined by the ADA, the Court finds that summary judgment in Defendant’s favor is warranted in connection with Plaintiffs ADA claim.
See Endlich v. Yellow Corp.,
C. CLAIM 3: WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
In support of his wrongful discharge in violation of public policy claim, Plaintiff asserts that Defendant terminated him in retaliation for his filing a workers’ compensation claim, pursuant to the Workers’ Compensation Act of Colorado, Colo.Rev. Stat. § 8^10-101, et seq. Though not entirely clear, Plaintiffs- wrongful discharge claim appears to be premised on both the decision to end the janitorial-services contract in November 2007 and the decision to terminate Plaintiff from his security guard employment in April 2008.
To establish a
prima facie
case for wrongful discharge, an at-will employee must present evidence that: (1) the employer directed the employee to perform an illegal act as part of the employee’s work-related duties or prohibited him from performing a public duty or exercising an important job-related right or privilege; (2) that the action directed by the employer would violate a specific statute on the public health, safety, or welfare, or would undermine a clearly expressed public policy relating to the employee’s basic responsibility as a citizen or his right or privilege as a worker; (3) the employee was terminated as the result of refusing to perform the act directed by the employer or for exercising the privilege to which the employee was entitled; and (4) that the employer was aware or reasonably should have been aware that the employee’s refusal to comply with the employer’s order was based on the employee’s reasonable belief that the action ordered was illegal, contrary to clearly expressed statutory policy related to the employee’s duty as a citizen, or violative of the employee’s legal right or privilege as a worker.
Roe v. Cheyenne Mountain Conference Resort, Inc.,
In the instant case, Plaintiff identifies twenty-three facts in the record that he contends support his claim of wrongful discharge in violation of public policy and allow the claim to withstand summary judgment., (See Doc. # 68 at 24-26.) In sum, these facts concern the misgivings of Darlene Niebuhr, Defendant’s Workers’ Compensation Manager and a third-party claims adjuster, in connection with Plaintiffs workers’ compensation claims, the length of time Plaintiff was taking to heal, and Plaintiffs changing stories about the incident leading to his injuries. However, nothing in the record indicates that Ms. Niebuhr or the third-party claims adjuster were involved in Mr. Smith’s termination decision or that Mr. Smith was involved in the рrocessing or handling of Plaintiffs workers’ compensation claim. Plaintiff only vaguely, and without any factual support, intimates through his recitation of the facts that Ms. Niebuhr influenced Mr. Smith’s termination decision.
Additionally, Plaintiff mistakenly represents that Mr. Smith “fired Mr. Barlow [from his janitorial services], in part ‘because of the workman’s comp issue. It was starting to put both of us in an *1106 unfavorable light.’ ” (Id. at 26, ¶ 19) (citing to paragraph 28 of Plaintiffs Statement of Additional Disputed Facts). However, a review of the original source of this “unfavorable light” remark (i.e., Mr. Smith’s deposition testimony) reveals that Plaintiff has taken the remark out of context to support his theory. First, Mr. Smith was discussing his November 2007 decision to terminate Defendant’s contract with Plaintiff for the provision of janitorial services through Plaintiffs own company; Mr. Smith was not discussing the April 2008 termination of Plaintiffs employment as an employee on Defendant’s payroll. Thus, because Plaintiff did not perform janitorial services as an at-will employee, Defendant’s decision to end the janitorial services contract is irrelevant to his wrongful discharge claim. Second, in explaining his rationale for terminating the contract, Mr. Smith noted that, in providing janitorial services, Plaintiff was required to lift a five-gallon mop bucket, which exceeded Plaintiffs 25-pound lifting restriction, and which requirement would “come back on both of us” as a result of “the workman’s comp issue.” (See Doc. # 68-2 at 66: 14-24.) In other words, Plaintiffs provision of janitorial services would only serve to aggravate his injuries for which he was then receiving workers’ compensation as a security guard employee. Mr. Smith also noted instances in which Plaintiff “double-dipped” by providing janitorial services during his security guard shifts. Therefore, the Court finds that no reasonable jury could find that Mr. Smith ended the janitorial services contract in retaliation for Plaintiffs workers’ compensation claims as a security guard employee. Regarding the April 2008 decision to terminate Plaintiff from his employment with Defendant as a security guard, Plaintiff has not presented any evidence that establishes a causal connection between his workers’ compensation claim and his termination. As previously noted, Plaintiff has failed to present any evidence that Mr. Smith’s termination decision was influenced by anyone involved in the processing and handling of Plaintiffs workers’ compensation claims, that the decision was premised upon Plaintiffs workers’ compensation claim filings, or that Mr. Smith interfered in any way with Plaintiffs filing for workers’ compensation.
Accordingly, for the foregoing reasons, the Court finds that summary judgment in Defendant’s favor is warranted in connection with Plaintiffs wrongful discharge in violation of public policy claim.
D. CLAIM 5: VIOLATION OF FAIR LABOR STANDARDS ACT
In support of his violation of the Fair Labor Standards Act (“FLSA”) claim, Plaintiff asserts that, in his duties as a security guard and provider of janitorial services, he was “required by Defendant to work long hours during the course of his employment and was not appropriately compensated for the hours of employment, contrary to the provisions of the FLSA,” and that Defendant has “deprived [him] of the statutory compensation required by the FLSA and as a direct or proximate result of the Defendant’s action, Plaintiff has lost wages and benefits.” (Doc. # 37, ¶¶ 121,122.)
In support of its Motion for Summary Judgment, Defendant asserts that, with respect to the provision of janitorial services, Plaintiff was an independent contractor and, therefore, the FLSA does not apply. (Doc. # 55 at 22-24.) For the reasons discussed below, the Court agrees.
It is well-established that the FLSA’s overtime compensation provision applies only to employees, not independent contractors.
See Weisgerber v. Allstate Ins. Co.,
No. 99-S-2073,
The Tenth Circuit has identified an “economic reality test” to detеrmine whether a worker is an employee or an independent contractor.
Baker v. Flint Eng’g & Constr. Co.,
(1) the worker’s opportunity for profit or loss;
(2) who supplied the instrumentalities, tools, and place of work;
(3) the worker’s role in hiring and paying assistants;
(4) the degree of skill involved;
(5) the method of compensation;
(6) length of time for which services are to be performed;
(7) intent of the parties;
(8) whether the work performed is part of the principal’s regular business; and
(9) benefits and tax treatment.
Id. Because no single factor is conclusive, courts must look to the totality of circumstances surrounding the parties’ relationship. Id. at 1441.
In the instant case, the record contains evidence that Plaintiff and his business partner provided janitorial services to Defendant through a company that Plaintiff had formed with another person and for which he obtained a cleaning license. Pursuant to that business relationship, Plaintiff invoiced Defendant for the provided services, and Defendant issued checks made payable to Plaintiffs company for the services rendered. Additionally, Plaintiffs company had its own bank account and filed a separate corporate tax return as a limited liability company. Although the record demonstrates that Mr. Smith met with Plaintiff to inform him of the janitorial tasks that needed to be performed, Plaintiffs deposition testimony reveals that he had the freedom to decide how to accomplish thosе tasks. (Doc. # 55-2 at 54-55.) Such input or exercise of control is not inconsistent with one’s status as an independent contractor and may be necessary to ensure that the end result contracted for is reached.
Weisberger,
y. CONCLUSION
Accordingly, IT IS ORDERED THAT:
(1) Defendant’s Motion for Summary Judgment (Doc. # 55) is GRANTED;
(2) This case is DISMISSED WITH PREJUDICE;
(3) The parties shall bear their own fees; and
(4) The Final Trial Preparation Conference, set for September 9, 2011, and *1108 the five-day jury trial, set to commence on September 26, 2011, are VACATED.
Notes
. Unless otherwise noted, the following facts are undisputed and are taken from the parties’ pleadings, briefs, and attached exhibits. Additionally, at the outset, the Court will provide a limited recitation of the facts and will discuss additional facts, as needed, when addressing the merits of Plaintiff's claims.
. While the parties need not present evidence "in a form that would be admissible at trial, [] the content or substance of the evidence must be admissible.”
Thomas v. Int'l Bus. Machs.,
. Interestingly, in the Complaint, Plaintiff fails to articulate the basis for his allegation that Defendant modified Plaintiff’s job duties "to set him up for failure.” Elsewhere in the Comрlaint, Plaintiff alleges that "the security guard duties were modified to include a portion of the janitorial duties.” (Doc. # 37, ¶ 42.) However, Plaintiff’s own statement of facts in opposition to Defendant’s Motion for Summary Judgment, citations to the record, and Defendant’s responses thereto reveal that Plaintiff was to provide janitorial services through his own company, separate and apart from his guard duties. Further, there is no dispute that this arrangement was made for economic reasons, i.e., to provide Plaintiff with additional income and to enable Defendant to manage its overtime costs. (Doc. # 68, ¶¶ 6-9; Doc. # 71, ¶¶ 6-9.)
. Although Plaintiff alleges in the Complaint that Defendant failed to give him performance evaluations, it is undisputed that Mr. Smith had favorably evaluated Plaintiff's performance in the past; described him as "honest,” “stable,” and “dependable;” and never previously warned Plaintiff about his performance. (Doc. # 68, ¶ 72; Doc. # 71, ¶ 72.)
. Also in the Complaint, Plaintiff alleges that, on April 25, 2008, Mr. Smith told him that he had to patrol Defendant's facility on foot, he could no longer patrol Defendant’s facility using a company truck because the truck was either out of commission or on loan to another employee. (Doc. # 37, ¶ 58.) However, in opposition to Defendant’s Motion for Summary Judgment, Plaintiff fails to provide any evidence in support of these allegations or explain how these allegations support his § 1981 and Title VII claims.
. "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
. Plaintiff relies on the 2008 amendments to the ADA, which further define “regarded as.” Pursuant to that amendment, an individual is regarded as having an impairment "if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added). Impairments will not be "regarded as” a disability if they are “transitory”
(i.e.
expected to last for six months or less) or "minor.” The 2008 amendments became effective on January 1, 2009. However, these amendments do not apply retroactively to the at-issue Employment Decisions, which concluded with Plaintiff's termination on April 30, 2008.
See, e.g., Johnson v. Weld County, Colo.,