TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND.....................................1064
II. STANDARDS FOR SUMMARY JUDGMENT................................1065
A. General Standards For Summary Judgment............................1065
B. Cautions In Employment Discrimination And Retaliation Cases.........1065
III. FINDINGS OF FACT.....................................................1066
A. Uncontested Facts....................................................1066
B. Contested Facts......................................................1067
IV. LEGAL ANALYSIS.......................................................1067
A. Employment Relationship Requirement........................... 1067
B. Determination of Employee Status Under Title VII................. 1068
C. Application Of The Hybrid Test........................................1069
1. Bil-Mar’s right to control and supervise Moland.....................1070
2. Other hybrid test factors ..........................................1071
D. Indirect Employee-Employer Relationship................... 1071
1. Sexual harassment claim..........................................1071
a. Sibley line of authorities ......................................1071
b. The prompt remedial action requirement........................1074
c. Bil-Mar’s response to harassment..............................1074
2. Retaliation claim.................................................1075
y. ' CONCLUSION..................... .....................................1078
In this employment discrimination lawsuit, the present motion for -summary judgment raises what at first blush appears to be the straightforward issue of whether an employment relationship, a statutory requirement for an employment discrimination lawsuit brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.,
existed between plaintiff and defendants at the time plaintiff was assigned to work at a scale house on one of defendants’ facilities. However, closer examination reveals that the critical issue before the court in this case is one which neither the Eighth Circuit Court of Appeals, nor any other federal court, has ever addressed in a published opinion and one which the Seventh Circuit Court of Appeals has left unanswered: “whether an employee of employer X may bring a Title VII action against employer Y when Y is not his employer, but merely someone whose discriminatory conduct interferes with his employment with employer X.”
Alexander v. Rush North Shore Medical Ctr.,
I. INTRODUCTION AND BACKGROUND
Plaintiff Terri Moland filed this sex discrimination lawsuit on March 4,1996, against defendants Bil-Mar Foods and Sara Lee Corporation (collectively “Bil-Mar” unless otherwise indicated). Moland, an employee of IBP Corporation (“IBP”), had been assigned to work at Bil-Mar’s scale house at its turkey processing plant in Storm Lake, Iowa. Moland worked at the scale house until February 22, 1995, when IBP complied with a request from Bil-Mar that IBP no longer assign her to Bil-Mar’s scale house. Mo-land’s complaint alleges that she was subjected to sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Moland also alleges that defendants retaliated against her for reporting sexual harassment in the workplace in violation of Title VII. Bil-Mar answered the complaint on April 16,1996.
Bil-Mar has moved for summary judgment. In its motion, Bil-Mar asserts that there are no genuine issues of material fact and argues that no employment relationship existed between Moland and Bil-Mar. Accordingly, Bil-Mar asserts that Moland cannot invoke the protections found in Title VII. Moland filed a timely resistance to Bil-Mar’s motion. In her resistance, Moland contends that she had an employment relationship with Bil-Mar sufficient to entitle her to bring suit under Title VII. Moland also contends that an indirect employment relationship is sufficient to bring Bil-Mar within the ambit of Title VII. After the parties had submitted their initial briefs, the court
sua sponte
invited the parties to submit further briefing on two issues: first, whether the line of authorities relied on by Moland applies with equal force to Moland’s claim of sexual harassment, pursuant to 42 U.S.C. § 2000e-2(a)(l), as well as to her allegation that defendants retaliated against her for reporting sexual harassment in the workplace, in violation of 42 U.S.C. § 2000e-3(a), given the differences in the language found in those two sections; and second, whether Bil-Mar, when faced with actual or constructive knowledge of alleged sexually harassing conduct, took ‘“prompt remedial action reasonably calculated to end the harassment.’ ”
Callanan v. Runyun,
The court held telephonic arguments on Bil-Mar’s Motion For Summary Judgment on January 20, 1998. At the hearing, plaintiff Moland was represented by Steve Hamilton of Hamilton Law Firm,P.C., Storm Lake, Iowa. Defendants were represented by Margaret M. Prahl of Heidman, Redmond, Fredregill, Patterson, Plaza & Dykstra, L.L.P., Sioux City, Iowa.
The court turns first to the standards applicable to motions for summary judgment, then to a discussion of the undisputed facts as shown by the record and the parties’
II. STANDARDS FOR SUMMARY JUDGMENT
A. General Standards For Summary Judgment
This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of recent decisions.
See, e.g., Dirks v. J.C. Robinson Seed Co.,
Suffice it to say that Rule 56 itself provides, in pertinent part, as follows:
Rule 56. Summary Judgment
(b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof.
(c) Motions and Proceedings Thereon____ The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v.
Donaldson Co.,
B. Cautions In Employment Discrimination And Retaliation Cases
When summary judgment is sought in
an
employment discrimination . case, however, the Eighth Circuit Court of Appeals has viewed such motions with caution. The court has often stated that “summary judgment should seldom be used in employment-discrimination cases.”
Crawford v. Runyon,
Furthermore, this court has observed that motions for summary judgment in retaliation cases should be viewed with similar caution. Thus, in
Delashmutt v. Wis-Pak Plastics, Inc.,
These special cautions seem to the court to be no less applicable here to Delashmutt’s retaliation ... claim[ ], because such claims also often depend upon inferences of the employer’s motive, as is shown by application of the same burden-shifting analysis to retaliation claims as is used in discrimination cases[.] [S]ee Moschetti v. Chicago, Central & Pacific R. Co.,119 F.3d 707 , 709 (8th Cir.1997) (“The order and allocation of the burden of proof in [a retaliation case under 42 U.S.C. § 2000e-3(a) ] is laid out in McDonnell Douglas Corp. v. Green,411 U.S. 792 ,93 S.Ct. 1817 ,36 L.Ed.2d 668 (1973)”); accord, Manning v. Metropolitan Life Ins. Co., Inc.,127 F.3d 686 , 692 (8th Cir.1997); Jackson v. Delta Special Sch. Dist. No. 2,86 F.3d 1489 , 1494 (8th Cir.l996)[.]
Delashmutt,
Nonetheless, there are also limits to caution, because the Eighth Circúit Court of Appeals has said that, “[although summary judgment should be used sparingly in the context of employment discrimination cases,
Crawford v. Runyon,
III. FINDINGS OF FACT
A. Uncontested Facts
Plaintiff Moland was an employee of IBP and was assigned to work in Bil-Mar’s scale house at its turkey processing plant in Storm Lake, Iowa. Moland' was first assigned a permanent part-time position' at the scale house in August 1994. Before getting the job in the scale house, Moland worked at IBP in a “sort/trim” position. Moland had to relinquish her rights in her sorfftrim position in order to take the job at the scale house.
Moland’s duties at the scale house required her to remain at the scale house in order to weigh trucks. Moland was to weigh every truck coming to or leaving the IBP plant. Although Moland’s job at the scale house was to weigh only IBP trucks, she did weigh other trucks. Moland was directed by BilMar employees to account for every weight ticket issued during her work shift. Moland determined that the best way to accomplish that requirement was to weigh every truck, regardless of ownership. Moland worked approximately thirty-two hours a week. Mo-land’s shift was 2:00 p.m. to 10:00 p.m., Monday through Thursday. On an average shift, Moland weighed approximately 100 trucks. Moland reported to her .supervisor at IBP, Sue Driver, when necessary. Moland trained a Bil-Mar employee, Susan Huseman, to perform the job requirements for the scale house position.
Bil-Mar’s scale house is located entirely on the premises of Bil-Mar’s turkey processing plant. Bil-Mar and IBP’s operations are interrelated only to the extent that Bil-Mar has agreed to permit IBP to use Bil-Mar’s scale house to weigh IBP trucks. Bil-Mar and IBP are separate and distinct companies. No common ownership or financial control of the two companies exists. There was and is no centralized control of IBP and Bil-Mar’s labor.
Moland was assigned to work at the scale house during hours when it was not being used by Bil-Mar. During the second shift,
IBP paid Moland’s wages. Bil-Mar did not pay Moland nor did it provide her with benefits. Moland was not given leave by Bil-Mar, nor did Moland accumulate retirement benefits at Bil-Mar. Bil-Mar did not pay employment taxes for Moland.
Moland was subject to IBP’s rules and regulations while she was employed by IBP. IBP had the ability to maintain Moland’s employment or to discharge her. IBP scheduled Moland’s work at the scale house, not Bil-Mar, and supervised her work. Bil-Mar did not directly employ Moland. No one from Sara Lee ever directed Moland’s activities while she was working at Bil-Mar’s scale house.
At one point during her tenure at the scale house, Moland had trouble with a truck driver who shoved her out of the way in order to weigh his truck himself. Dave Sanders, a Bil-Mar supervisor, wrote a letter to the truck driver informing him that Moland was responsible for weighing the trucks at the scale house.
Russell Camerer, a Bil-Mar employee, complained about Moland smoking while working in the scale house. Camerer also accused Moland of starting fires in the scale house. Following Camerer’s complaints, a “No Smoking” sign was put up in the scale house. On another occasion, Camerer reported his suspicions that Moland was stealing sand buckets from the scale house. Dale Carver, Bil-Mar’s human resources supervisor, investigated Camerer’s allegation that Moland had stolen Bil-Mar property and concluded that Moland had not stolen any property from Bil-Mar.
Moland’s conflict with Camerer dates back several years to when Camerer sexually groped Moland while she was working at Darrell’s Food Town in Ata, Iowa. When Moland started working at Bil-Mar’s scale house, Camerer started a rumor that he had had sexual intercourse with Moland. When Moland told Bil-Mar employees that Camerer’s claims were false, Camerer told Moland that he was going to do whatever he could to get Moland fired from her job at the scale house. No actions were taken by Bil-Mar regarding Camerer’s harassment until January 1995, when Greg Steenblock orally reprimanded Camerer. When Moland complained of further harassment by Camerer in February 1995, Bil-Mar responded to Moland’s complaint of harassment by giving Camerer a written warning. Bil-Mar then contacted IBP and requested that Moland no longer be assigned to work in Bil-Mar’s scale house. IBP subsequently told Moland that she would no longer be assigned to work at BilMar’s scale house due to Bil-Mar’s request that she not be assigned there.
Moland remained on the seniority employment rolls at IBP after she was removed from her scale house position. Moland was told by IBP personnel that she would be reassigned to another position at IBP. How-, ever, no positions were made available to Moland. Ater one year she was dropped from IBP’s seniority role and her employment was terminated.
B. Contested Facts
1. Whether Moland reported to Bil-Mar the sexual nature of Camerer’s harassment?
2. Whether Moland complained to BilMar in August 1994, that she was being harassed by Camerer?
IV. LEGAL ANALYSIS
A. Employment Relationship Requirement
Moland’s claims for relief allege unlawful' sexual discrimination under Title VII of the
Defendants assert that they were not Moland’s employer for purposes of Title VII. Moland concedes that she cannot prevail against defendants on her discrimination claims unless she can demonstrate the existence of an employer-employee relationship with defendants. Moland, however, contends that the extent and nature of the control asserted by defendants over the work and workplace establishes an employer-employee relationship between her and defendants for Title VII purposes. As several federal courts of appeals have recognized, “whether a person is ‘an employee under Title VII is a question of federal law.’ ”
Broussard v. L.H. Bossier, Inc.,
B. Determination of Employee Status Under Title VII
Title VII defines an “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person ...” 42 U.S.C^OOOelb). 1 An “employee” is defined as “an individual employed by an employer.” 42 U.S.C. § 2000e(f).
Courts have adopted three tests for determining whether an individual is ah employee: (1) the common-law agency test, first set forth in
Community for Creative Non-Violence v. Reid,
The Eighth Circuit Court of Appeals has expressly repudiated application of the economic realities test in Title VII cases.
2
See
Under both tests, all aspects of the working relationship are considered. The Restatement’s list of common-law factors used ■ in both tests is nonexhaustive, and consideration of the additional economic factors does not broaden the traditional common-law test. Indeed, by adding employee benefit and tax treatment factors to the Restatement factors in its explanation of the common-law test, the Supreme Court recognized the common-law test encompasses economic factors.
Id.; see Lambertsen v. Utah Dep’t of Corrections,
C. Application Of The Hybrid Test
The Eighth Circuit Court of Appeals has instructed that “[u]nder the hybrid test, the term ‘employee’ is construed in light of general common-law concepts, taking into account the economic realities of the situation.”
Wilde,
This [hybrid] test calls for application of general principles of the law of agency to undisputed or established facts. Consideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative. Nevertheless, the extent of the employer’s right to control the “means and manner” of the worker’s performance is the most important factor to review here, as.it is at common law.... If an employer has the right to control and direct the work of an individual, not only as to the result to beachieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist.
Spirides,
(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the “employer” or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the “employer”; (9) whether the worker accumulates retirement benefits; (10) whether the “employer” pays so- • cial security taxes; and (11) the intention of the parties.
Id.
at 832;
accord Oestman,
1. Bil-Mar’s right to control and supervise Moland
In its motion for summary judgment, Bil-Mar asserts that it exercised little, if any, control over Moland. As the court indicated above, the employer’s right to control the “means and manner” of the worker’s performance is the most important factor in the analysis under either the hybrid test or the common law test.
Alexander,
Here, Moland was directly employed by IBP. Bil-Mar agreed to permit IBP to use Bil-Mar’s scale house to weigh IBP trucks. Pursuant to this arrangement, IBP assigned Moland to work at Bil-Mar’s scale house. Moland’s job at the scale house was to weigh only IBP trucks coming to or leaving the
2. Other hybrid test factors
Bil-Mar did not compensate Moland for her work in the scale house. Moland’s hourly wage was paid by IBP. Additionally, Bil-Mar makes no deductions for taxes or other contributions from Moland’s compensation. These activities are handled by IBP. Furthermore, Bil-Mar did not provide her with benefits. Moland was not given leave by Bil-Mar nor did Moland accumulate retirement benefits at Bil-Mar).
Moreover, Moland cannot dispute that she had considerable latitude in how she conducted the operations of the scale house. She had no direct supervision from Bil-Mar employees, and the only requirement placed on her by Bil-Mar was that she had to observe the no smoking prohibition in the scale house and that she was required to account for all tickets issued during her shift. As to whether Moland’s work was an integral part of BilMar’s regular business, Moland’s position required her to weigh only IBP’s trucks. Thus, in no way could Moland’s position be deemed to be an integral part of Bil-Mar’s business. While Moland had what appears to be daily contact with Bil-Mar employees, her level of contact with Bil-Mar employees indicates that Moland had significant independence, as opposed to the kind of direct supervision and control that is typical of an employer-employee relationship.
Cf. Zippo Mfg. Co.,
While the hybrid test for determining employee status under Title VII cannot be applied with mathematical precision, after analyzing the applicable hybrid test factors the court concludes that neither Bil-Mar nor Sara Lee controlled Moland, and that Moland can not be deemed an employee of either defendant for the purposes of Title VII. This conclusion, however, does not end the court’s inquiry for Moland has also alleged that an indirect employment relationship may be sufficient to bring Bil-Mar within the ambit of Title VII.
See Sibley Mem’l Hosp. v. Wilson,
D. Indirect Employee-Employer Relationship
1. Sexual harassment claim
a. Sibley line of authorities
A few courts have deemed, a defendant an “employer” if the defendant has a sufficient degree of control over plaintiffs access to the job market, i.e., sufficient control over plaintiffs employment opportunities. See Sibley Mem’l Hosp., 488 F.2d 1338. The seminal case in this area is the decision in Sibley, 488 F.2d 1338. In Sibley, a male .nurse brought suit under Title VII alleging that the defendant hospital discriminated on the basis of séx by refusing to refer male nurses to female patients. The defendant there argued that “since no direct employment relationship between itself and (plaintiff) was ever contemplated by either of them, it is not an employer under the Act with respect to him.” Id. at 1340. The court, in addressing the problem of discrimination in access to employment, observed:
Control over access to the job market may reside, depending upon the circumstancesof the case, in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited.
Id. at 1341.
Thus, while no direct employment relationship existed between plaintiff and the hospital, the hospital’s recommendation was in practice necessary to the employment because the hospital “control(led) the premises upon which those services were to be rendered, including (plaintiffs) access to the patient for purposes of the initiation of such employment.” Id. at 1342. The Court of Appeals for the District of Columbia therefore held that, although there did not exist any employment relationship between the plaintiff nurse and the defendant hospital “in the sense of the usual indicia of such employment,” the plaintiff had standing to pursue his Title VII claim. Id.
“Sibley
standing” has since realized widespread attention, though not universal acceptance.
See generally Vakharia v. Swedish Covenant Hosp.,
The Eighth Circuit Court of Appeals has not addressed the question of whether an individual may bring a Title VII action against an employer who has interfered with that person’s employment opportunities with a third party. Although all of the decisions adopting the
Sibley
line of authority come from sister circuit courts of appeals and are not binding precedent in this district court, these decisions do- constitute persuasive authority.
See Colby v. J.C. Penney Co., Inc.,
Although the Eighth Circuit Court of Appeals has not addressed the issue of whether the obligations and rights created under Title VII would extend beyond the immediate employer-employee relationship, other federal courts have held that, based on the language of §. 2000e-2(a)(l), Congress clearly intended that Title VII would extend beyond the immediate employer-employee relationship under certain circumstances.
Zaklama v. Mt. Sinai Medical Ctr.,
“Control over access to the job market may reside, depending upon the circumstances of the case, in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited.”
Zaklama,
Although, as Bil-Mar points out in its brief, the
Sibley
line of authority typically has been applied in cases arising in a hospital setting, several courts, including district courts in this circuit, have extended the doctrine to other factual situations.
See, e.g., Magnuson v. Peak Tech. Sery.,
Guided by Sibley, and those decisions following Sibley, the court concludes that 42 U.S.C. § 2000e-2 applies where an employer controls an individual’s access to employment opportunities and denies that access based on unlawful criteria even though the individual is not an employee of that employer. Here, Moland’s authorized employment at BilMar’s weight station was terminated. She contends that her authorization to work at the weight station was revoked because of her unwillingness to work in a sexually hostile work environment. She further contends that the termination of her authorization to work at the weight station interfered with her employment at IBP. Accordingly, the court concludes that this segment of defendants’ motion for summary judgment as to Moland’s first cause of action is denied.
' Bil-Mar also asserts in its supplemental brief that it is entitled to summary judgment on Moland’s sexual harassment claim because it took prompt remedial action when it learned of Moland’s complaint of harassment. “Once an employee complains to her employer about sexual harassment by a coworker, the employer is on notice and must take proper remedial action to avoid liability under Title VII.”
Hathaway v. Runyon,
Options for appropriate remedial action include taking disciplinary action to stop the harassment; transferring the alleged harasser to a different area where he or she would not come in contact with the complainant; scheduling the individuals involved on different shifts; putting a signed written warning or reprimand in personnel files; or placing the offending employee on probation pending any further complaints.
Id.
(citing
Knabe,
c. Bil-Mar’s response to harassment
The court concludes that Moland has generate a genuine issue of material fact as to whether Bil-Mar’s response was sufficiently “prompt.” Fed.R.CivP. 56(e) (to avoid summary judgment, the non-movant must generate a genuine issue of material fact based on affidavits, “depositions, answers to interrogatories, and admissions on file”);
Celotex,
The court concludes that Moland has generated material questions of fact as to whether Bil-Mar’s remedial actions were taken only after repeated complaints, thus raising a question of fact as to whether Bil-Mar knew or should have known about the harassment and failed to undertake a proper investigation at an earlier date. Because Moland has generated a genuine issue of material fact that Bil-Mar’s response to her complaints regarding Camerer were not sufficiently prompt or were not reasonably calculated to end the harassment, Bil-Mar is not entitled to summary judgment on Moland’s claim for
2. Retaliation claim
In Moland’s second cause of action, she alleges that Bil-Mar requested her removal from the weight station in retaliation for her reporting sexual harassment in the workplace in violation of 42 U.S.C. § 2000e-3(a). 42 U.S.C. § 2000e-3(a) provides in pertinent part:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this sub-chapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subehapter.
42 U.S.C. § 2000e-3(a).
The court thus must confront an issue which it raised sua sponte: whether the Sibley line of authority applies with equal force to Moland’s claim that defendants retaliated against her for reporting sexual harassment in the workplace, in violation of 42 U.S.C. § 2000e-3(a), given the differences in the language found in § 2000e-2(a)(l) and the language found in § 2000e-3(a). Specifically, the court notes that § 2000e-3(a) refers to discrimination “against any of his employees” while § 2000e-2(a)(l) speaks about discriminatory actions against “any individual.” The Court of Appeals for the District of Columbia noted the distinction between the terms “employee” and “any individual” in Sibley:
The Act defines “employee” as “an individual employed by an employer,” but nowhere are there words of limitation that restrict references in the Act to “any individual” as comprehending only an employee of an employer. Nor is there any good reason to confine the meaning of “any individual” to include only former employees and applicants for employment, in addition to present employees.
Sibley,
In response to the court’s inquiry, Moland has directed the court’s attention to the Sixth Circuit Court of Appeals decision in
Christopher v. Stouder Mem’l Hosp.,
Stouder argues that Sibley, Gomez, and Doe are distinguishable because all of those eases were actions brought under § 2000e-2, which allows a broader range of persons to sue than § 2000e-3 upon which Christopher relies____
While Stouder’s position has some logical appeal at first glance, we find it is ultimately not persuasive. First, while the courts in Doe, Gomez, and Sibley Mem. Hosp. do rely, to some extent, on the “any individual” language of § 2000e-2, this language is not the sole basis of these holdings. For example, in Sibley Mem. Hosp., the court makes much of the fact that the general remedial section of Title VII doesnot refer only to any “employee” but provides recourse to “persons aggrieved.” See 42 U.S.C. § 2000e-5(b); 488 F.2d at 1341-42 ; see also Gomez,698 F.2d at 1021 . The court states: “The fact that the Act purports to provide remedies for a class broader than direct employees is a strong indication that the proscriptions contemplated by [ § 2000e-2] reach beyond the immediate employment relationship.” Sibley Mem. Hosp.,488 F.2d at 1341 . It is important to note that the remedial section to which the court refers, § 2000e-5, applies 'equally to plaintiffs suing under § 2000e-2 and § 2000e-3. Thus, the courts in reaching their conclusions in Sibley and Gomez, were not relying on the “any individual” language of § 2000e-2, but rather, were discerning the meaning of “employee” in the Title VII context hy looking to the intent and scope of Title VII as a whole.
Christopher,
Finally, the court went on to discuss its rationale for extending the holding of the Sibley line of authorities to Christopher’s retaliation claim:
As the goal of Title VII is to preserve employment opportunity, we can see no reason to conclude that Congress intended Title VII to prohibit discrimination by a non-employer defendant on the basis of race or sex, and to allow the same non-employer defendant to discriminate against a person who engages in protected activity under Title VII. In both instances the acts of the non-employer defendant have the effect of denying the plaintiff employment based upon impermissible grounds under the Act. Thus, we find that the trial court had jurisdiction to hear Christopher’s § 2000e-3 claim based upon the principles and reasoning articulated in Sibley Mem. Hosp. and its progeny.
Id. at 876-77.
Again, although the
Christopher
case, as a decision of a sister circuit court of appeals, is not binding precedent in this district court, it is persuasive authority. See
Colby,
E. Certification For Interlocutory Appeal
The court finds that this matter should be certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). That statute provides, in pertinent part, as follows:
(b) When a district judge, in making in a civil action an order not otherwise appeal-able under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so ■ state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: - Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
In a recent decision, the Eighth Circuit Court of Appeals considered the standards applicable to an interlocutory appeal pursuant to § 1292(b).
See White v. Nix,
The court is of the opinion that this decision presents an “exceptional case” in which immediate interlocutory appeal should be permitted.
Id.
The court finds that this order involves a controlling question of law, specifically, whether the Eighth Circuit Court of Appeals will recognize jurisdiction to entertain discrimination claims brought pursuant to 42 U.S.C. § 2000e-2 and /or retaliation claims made pursuant to 42 U.S.C. § 2000e-3 where the defendant is in a position to interfere with the plaintiffs employment opportunities even though the plaintiff is not an employee of the defendant. If the Eighth Circuit Court of Appeals does not recognize such claims then defendants are entitled to have judgment entered for them and against Moland on her Title VII claims. It is also clear to the court that “there is substantial ground for difference of opinion,”
id.,
since the scope of the
Sibley
line of authority has not yet been fully developed nor has any circuit court of appeals specifically answered the .question left unanswered by the Seventh Circuit in
Alexander,
V. CONCLUSION
The court initially concludes that neither defendant Bil-Mar nor defendant Sara Lee was an “femployer” of plaintiff Moland within the provisions of Title VII. However, the court further finds that the rights created under Title VII extend beyond the immediate employer-employee relationship and apply to discrimination claims brought pursuant to 42 U.S.C. § 2000e-2 and/or retaliation claims made pursuant to 42 U.S.C. § 2000e-3 where the defendant is in a position to interfere with the plaintiffs employment opportunities even though the plaintiff is not an employee of the defendant. The court further concludes that Moland has generated material questions of fact as to whether Bil-Mar’s took prompt remedial actions, thus defendants are not entitled to summary judgment on Moland’s claim for sexual harassment. Therefore, defendants’ Motion For Summary Judgment is denied. This order is certified for interlocutory appeal, and this matter is stayed while any such interlocutory appeal is pending. 28 U.S.C. § 1292(b).
IT IS SO ORDERED.
Notes
. There is no dispute in this case that both BilMar and Sara Lee employ the requisite number of employees to constitute employers for the purposes of Title VII. Instead, the issue of contention between the parties is whether Moland was an employee of Bil-Mar and Sara Lee.
. The Supreme Court developed the economic reality test in a Fair Labor Standards Act ("FLSA”) case.
See Goldberg v. Whitaker House Coop.,
. The similarity between the hybrid test and the common law test is demonstrated by similarity in the factors to be considered under each test. The - Supreme Court, in
Reid
and
Darden
approved consideration of the following factors in an analysis of whether an individual is an employee under the general common law of agency: 1) the hiring party's right to control the manner and means by which the product is accomplished; 2) the skill required by the hired party; 3) the source of instrumentalities and tools; 4) the location of the work; 5) the duration of the relationship between the parties; 6) the hiring party’s right to assign additional projects; 7) the hired party's discretion over when and how long to work; 8) the method of payment; 9) the hired party's role in hiring and paying assistants; 10) whether the work is part of the hiring party’s regular business; 11) whether the hiring party is .in business; 12) the hired party's employee benefits; and 13) tax treatment of the hired party's compensation.
Darden,
. In
Vakharia,
the district court reasoned that to permit an employer to discriminatorily deny individuals access to employment opportunities with third parties, while preventing such conduct with regard to its own employees, would be to sanction the very behavior Title VII sought to eliminate.
Vakharia,
. In
Zaklama
v.
Mt. Sinai Medical Ctr.,
While it is true that it was Jackson Memorial that discharged Zaklama from the residency program, it does not follow that Mt. Sinai is immune from liability____It is clear from the language of the statute that Congress intended that the rights and obligations it created trader Title VII would extend beyond the immediate employer-employee relationship.
Id. at 294.
. Because § 1292(b) provides for appeal of orders otherwise unappealable, and thus provides an avenue for resolving disputed and controlling questions of law, the resolution of which will materially further the litigation, the appellate court reviews
de novo
the questions of law certified by the district court.
Simon v. G.D. Searle & Co.,
Simon,