Labor & Employment Law Daily Company retained control of staffing agency worker’s employment conditions and could be sued under Title VII
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Thursday, October 24, 2019

Company retained control of staffing agency worker’s employment conditions and could be sued under Title VII

By Tulay Turan, J.D.

The court disagreed that company was not the worker’s employer because the company directed his tasks at the facility, he had to report to a supervisor at the facility to complain about alleged harassment, and it made the ultimate decision to not let him go back to work.

An order puller hired through a staffing agency can proceed with his race discrimination and sexual harassment claims where his complaint’s allegations plausibly showed the company where he was assigned to work was his employer because it had retained sufficient control of the terms and conditions of his employment, ruled a federal district court in Alabama. The court also denied the company’s motion to dismiss for failure to name the staffing agency and alleged harasser as defendants because their absences had no impact on the ability to give complete relief on the claims (Smith v. W.L. Petrey Wholesale Company, Inc., October 21, 2019, Bowdre, K.).

Request for oral sex. In June 2018, the order puller, “a man of African ancestry,” began working for Petrey through a staffing agency. A forklift driver for Petrey propositioned the order puller for oral sex. When the order puller refused, the driver pursued the order puller throughout the facility, repeatedly grabbed his thigh, and repeated his request. After the order puller rejected the additional advances, the driver said he would not pull any of his orders until he agreed to oral sex.

Left work. The order puller reported the driver to his supervisor at Petrey and said that he wanted to leave for the day. The supervisor spoke to the driver in Spanish and the driver became angry and pointed at the order puller in a threatening manner. The order puller left the facility for the day out of fear that the driver wanted to fight him. The next day, the staffing agency that placed the order puller at Petrey called and told him that he was not allowed back on the Petrey’s property because Petrey accused him of walking off the job.

The order puller brought claims against Petrey for race discrimination and sexually hostile work environment under Title VII and Section 1981, retaliation under Title VII, and the tort of outrage under Alabama law. Petrey filed a motion to dismiss for failure to state a claim and, in the alternative, a motion to dismiss for failure to name indispensable parties or for joinder.

Sufficient control of terms and conditions. Denying Petrey’s motion to dismiss for failure to state a claim, the court found the order puller’s complaint plausibly showed Petrey was his employer under Title VII and Section 1981 because it retained for itself sufficient control of the terms and conditions of his employment. The order puller asserted that Petrey directed his tasks at the facility, he had to report to a supervisor at Petrey’s facility to complain about the alleged harassment from the forklift driver, and Petrey made the ultimate decision to not let him go back to work.

Unnamed defendants weren’t indispensable parties. The court also denied Petrey’s motion to dismiss for failure to name as defendants the order puller’s staffing agency, the alleged harasser, and the alleged harasser’s staffing agency. Under FRCP 19, an absent person is an indispensable party to an action if the person’s absence would prevent the court from giving complete relief among existing parties, impede the absent person’s ability to protect his own interest, or subject an existing party to multiple or inconsistent obligations because of the absent person’s interest. The court found that no such circumstances existed in this case. Because Title VII and Section 1981 extend liability to an employer for its employees’ violative conduct, the alleged harasser’s and the staffing agencies’ absences have no impact on the court’s ability to give complete relief on those claims.

In addition, the order puller could not state a Title VII claim against the alleged harasser because individual employees are not subject to Title VII liability. He also could not state a Title VII or Section 1981 claim against the staffing agencies because the agencies did not decide to terminate him or control his work environment. “[The order puller’s] staffing agency simply was not involved in the events that occurred at Petrey’s facility and resulting decisions,” the court wrote.

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