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Butler v. Drive Auto. Industries of America, Plaintiff - Appellant, v. DRIVE AUTOMOTIVE INDUSTRIES OF AMERICA, INCORPORATED, d/b/a Magna Drive Automotive, Defendant -- Appellee, and EMPLOYBRIDGE OF DALLAS INCORPORATED, d/b/a ResourceMFG; STAFFING SOLUTIONS SOUTHEAST INCORPORATED, d/b/a ResourceMFG

United States Court of Appeals, Fourth Circuit

July 15, 2015

BRENDA BUTLER, Plaintiff - Appellant,
v.
DRIVE AUTOMOTIVE INDUSTRIES OF AMERICA, INCORPORATED, d/b/a Magna Drive Automotive, Defendant -- Appellee, and EMPLOYBRIDGE OF DALLAS INCORPORATED, d/b/a ResourceMFG; STAFFING SOLUTIONS SOUTHEAST INCORPORATED, d/b/a ResourceMFG, Defendants

Argued January 29, 2015

Appeal from the United States District Court for the District of South Carolina, at Greenville. (6:12-cv-03608-JDA). Jacquelyn D. Austin, Magistrate Judge.

ARGUED:

Jeffrey Parker Dunlaevy, STEPHENSON & MURPHY, LLC, Greenville, South Carolina, for Appellant.

Stephanie E. Lewis, JACKSON LEWIS P.C., Greenville, South Carolina, for Appellee.

ON BRIEF:

Brian P. Murphy, BRIAN MURPHY LAW FIRM, PC, Greenville, South Carolina, for Appellant.

Wendy L. Furhang, JACKSON LEWIS P.C., Greenville, South Carolina, for Appellee.

Before KEENAN, FLOYD, and HARRIS, Circuit Judges. Judge Floyd wrote the opinion, in which Judge Keenan and Judge Harris joined.

OPINION

FLOYD, Circuit Judge:

In this Title VII employment discrimination action, Brenda Butler seeks to recover for sexual harassment she allegedly experienced while working at a Drive Automotive Industries (Drive) factory. In the proceeding below, Drive argued that Butler was actually employed by a temporary staffing agency, ResourceMFG, and therefore Drive was not an " employer" subject to Title VII liability. Although the district court acknowledged that in some instances an employee can have multiple " employers" for Title VII purposes, it concluded that in this case ResourceMFG was Butler's sole employer. Accordingly, the district court granted summary judgment to Drive on Butler's claims.

Like the district court, and several of our sister circuits, we agree that Title VII provides for joint employer liability. We further conclude that the so-called " hybrid" test, which considers both the common law of agency and the economic realities of employment, is the correct means to apply the joint employment doctrine to the facts of a case. The district court did not explicitly use the " hybrid" test in its opinion. Under our de novo standard of review, we articulate the hybrid test for the joint employment context and apply it to the facts of this case, concluding that Drive was indeed Butler's employer. Accordingly, we reverse and remand for consideration of Butler's Title VII claims on the merits.

I.

Appellant Brenda Butler was hired by ResourceMFG,[1] a temporary employment agency, to work at Drive Automotive Industries in Piedmont, South Carolina. Drive manufactures doors, fenders, and other parts for automotive companies. The company hires some employees directly and employs others through temporary employment agencies.

Drive and ResourceMFG each exercised control over various aspects of Butler's employment. For example, Butler wore ResourceMFG's uniform, was paid by ResourceMFG, and parked in a special ResourceMFG lot. ResourceMFG also had ultimate responsibility for issues related to discipline and termination. Drive, however, determined Butler's work schedule and arranged portions of Butler's training. Drive employees supervised Butler while she worked on the factory floor. Butler said she was told by ResourceMFG that she worked for " both" Drive and ResourceMFG. J.A. 36-37 (" They always told me that both of them w[ere] our employers. . . . [W]e w[ere] considered to be working for both." ).

Butler claims that one of her Drive supervisors, John Green, verbally and physically harassed her throughout her time at Drive. Specifically, Butler alleges that Green made repeated comments about Butler's physical features, such as " You sure do have a big old ass" ; " I wish my girlfriend had a big old ass like yours" ; " Boy, I love women with big old asses" ; and calling her a " big booty Judy." J.A. 94, 103, 132. Green also rubbed his crotch against Butler's buttocks. J.A. 98-100. Butler reported Green's conduct to ResourceMFG's on-site representative, Ryan Roberson, and to Green's supervisor at Drive, Lisa Gardner Thomas. According to Butler, however, neither took any action to curb the harassment.

The harassment culminated on December 19, 2010, when Green directed Butler to work on a particular machine called " the laser." Butler refused, saying she was tired from working overtime the night before. Green said that his supervisor had said " hell no." J.A. 86. Green continued, " You have to run it. If you can't fucking run it, take your ass home. . . . [Y]our assignment has ended." Id. He also called her " big booty Judy" again. Id. When Butler objected to Green's language, he informed her that she was a temp and could be easily fired.

When Butler informed Thomas of the encounter, Thomas asked another supervisor at Drive that Butler be terminated. J.A. 383. The request was then sent to ResourceMFG. A few days later, Green called Butler and implied that he could save her job by performing sexual favors for him. Butler refused. A ResourceMFG supervisor then called her to tell her she had been terminated from Drive.

In November 2012, Butler filed suit against both Drive and ResourceMFG in South Carolina state court. After Drive timely removed the case to federal court, the parties agreed to dismiss the case against ResourceMFG, leaving Drive as the sole remaining defendant. In April 2013, the district court granted Drive's motion for summary judgment,[2] finding that Drive did not exercise sufficient control over Butler's employment such that it could be liable as her employer under Title VII. Butler now appeals the district court's grant of summary judgment.

II.

Pursuant to 28 U.S.C. § 636(c)(3), we have jurisdiction of this appeal from the judgment of the magistrate judge. We review the district court's grant of summary judgment de novo, drawing " reasonable inferences in the light most favorable to the non-moving party." Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). We also review de novo questions of statutory interpretation--in this case, the proper construction of " employer" in Title VII. Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).

Summary judgment is proper " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To overcome a motion for summary judgment, however, the nonmoving party " 'may not rely merely on allegations or denials in its own pleading' but must 'set out specific facts showing a genuine issue for trial.'" News & Observer Publ'g Co. v. Raleigh--Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (quoting Fed.R.Civ.P. 56(e)).

III.

An entity can be held liable in a Title VII action only if it is an " employer" of the complainant. Title VII of the Civil Rights Act of 1964 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 a person." 42 U.S.C. § 2000e(b). In turn, an " employee" is " an individual employed by an employer." Id. § 2000e(f). As the Supreme Court has noted, definitions of " employer" and " employee" in federal law are often circular and " explain[] nothing." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992).

The parties do not dispute that ResourceMFG employed Butler. The dispositive question on appeal is whether Drive also employed Butler for Title VII purposes. In answering this question, we first must consider the threshold issue of whether an employee can have multiple " employers" under Title VII. Our review of this question of law is de novo. Cilecek v. Inova Health Sys. Servs.,115 F.3d 256, 261 (4th Cir. 1997) (citing MacMullen v. S.C. Elec. & Gas Co.,312 F.2d 662, 670 (4th Cir. 1963)). The district court accepted the possibility that both entities could in theory be Butler's " employer" for Title VII purposes pursuant to the joint employment doctrine. As set ...


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