By Joy P. Waltemath, J.D. Was a janitorial services company’s client a joint employer with the janitorial service when the client company’s director had a lesbian janitor summarily removed from the office, allegedly because she was a lesbian? Did it make any difference that, for the previous 14 years, the lesbian janitor’s own company had provided janitorial services to the client but, after the client hired the new director and he learned she was a lesbian, her contract was quickly terminated? In a 2-1 unpublished decision and over a vigorous dissent by Chief Judge Traxler, the Fourth Circuit found she had not pleaded a plausible joint employment relationship—after all, she worked at the client’s only a few hours before the director had her escorted from the premises, not long enough to establish an employment relationship, and the contract’s terms—the client could accept or reject any janitorial services employee or review them for effectiveness—were not the kind of day-to-day supervision it contemplated to afford joint employer status (Greene v. Harris Corp., June 22, 2016, Keenan, B.). Twice removed. The janitor had provided office cleaning services to the client, Harris, for 14 years when problems arose after a new director began working at the office in October 2008. He treated the janitor rudely, made disparaging remarks, telling others she "dressed like a man," which "bothered" him. Upon learning in February 2010 that she was a lesbian, he allegedly "appeared visibly upset and then disgusted." In March 2010, her contract was terminated by him, which he attributed to her overcharging, and a new company began providing cleaning services. The janitor obtained a full-time job with the new company and she was assigned to clean at Harris. Her first day, the director saw her cleaning and immediately had security escort her from the premises, emailed the facilities manager, and called her employer and reported that she was prohibited from the premises. She was immediately terminated. The federal district court in Maryland dismissed her sexual orientation and appearance discrimination claims under a local ordinance against Harris, finding her mere allegations of the terms of the cleaning service contract between her employer and Harris were insufficient to establish she was Harris’ employee, nor did she sufficiently allege tortious interference. After that decision, the Fourth Circuit decided Butler v. Drive Automotive Industries of America, Inc. dba Magna Drive Automotive, which established a nine-factor test for joint employment "focusing on the amount of control the client exercised over the putative employee." No plausible employment relationship. On appeal, the majority found the janitor "wholly has failed to plead plausible allegations of an employment relationship with Harris." She worked there only a few hours before she was escorted out, "undermining any contention that she developed an employment relationship with Harris over the course of an ongoing work assignment." Her allegations of the amount of control Harris had over her were based largely on the contract between the janitorial services company and Harris, and she failed to show how the contract provisions were applied to her, other than the fact that a Harris employee was named as her on-site supervisor. Her contention that the contract contained an "effectiveness review" provision for Harris to evaluate a janitor’s work did not amount to the "day-to-day supervision" necessary to find an employment relationship. Instead, said the appeals court, the contractual provisions described only a contract for janitorial services between a vendor and its business client. It found no error in the district court’s decision to dismiss her discrimination complaint because she was not Harris’ employee. Prior relationship not considered. The Fourth Circuit also pointed out that because the janitor did not challenge in her complaint Harris’ earlier decision, in March 2010, to terminate her longstanding contract with it, the court had "not considered any indicia of employment that may have been present in that prior relationship." No falsity. As for the janitor’s claim that Harris tortiously interfered with her business relationship—her job with the janitorial services company—by defaming her in falsely saying that Harris previously barred her from its premises, the court found that she had not met her burden of showing that the statement was "not substantially correct." In fact, her own complaint refuted her assertion because she said that her original contract was terminated, and that Harris security personnel escorted her from the premises when she showed up again to work onsite. Dissent. Chief Judge Traxler, in dissent, pointed out that the Harris director terminated the janitor’s 14-year stint because she is a lesbian and, in his view, dressed like a man. When she came back to Harris as a janitor through a cleaning service, he terminated her as soon as he saw her, again because she is a lesbian and dressed like a man. He viewed the complaint’s allegations as sufficient to state a claim that Harris was a joint employer of the janitor when she was terminated, since under the contract, Harris reserved much of the first three and "most important" Butler factors to itself—authority to hire and fire, day-to-day supervision, and where and how the work was to take place. Specifically, Harris retained the right to interview individual janitors, the right to evaluate their experience and qualifications to perform cleaning services, the right to accept or reject the janitors based upon their experience, the right to submit the janitors to drug testing, and the right to terminate the janitors for cause. Harris also maintained control over the day-to-day supervision of the janitors, including where and how the work would take place, and even assigned an on-site supervisor to physically accompany the janitor to certain. And Harris was charged with conducting ongoing, periodic evaluations of her work. At the very least, said the dissent, the Butler factors were fact-specific and should be applied with caution at the motion to dismiss stage. Finally, the dissent also would have held that the janitor stated a plausible tortious interference claim that, motivated by his discriminatory animus against lesbians, the Harris director engaged in intentional and willful acts that were calculated to damage her work reputation and result in her termination, and which succeeded in causing actual damage and loss to Greene by causing the janitorial services company to fire her.
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