calendar weeks in the current year or preceding calendar year, and any agent of such a person . . . ." 42 U.S.C. § 2000e(b).
Defendant avers through affidavits that some of the people plaintiff lists as defendant's employees were merely consultants, volunteers or working for independent contractors and, therefore, defendant does not employ the requisite number of people to fall within the purvue of Title VII.
However, courts construe the term "employer" liberally. Trevino v. Celanese Corp., 701 F.2d 397, 403 (5th Cir. 1983); Baker v. Stewart Broadcasting Company, 560 F.2d 389, 391 (8th Cir. 1977).
When deciding whether a worker is an employee or an independent contractor for Title VII purposes, the most important factor to consider is an employer's right to control that person's work. Spirides v. Reinhardt, 613 F.2d at 831-32; Perry v. City of Country Club Hills, 607 F. Supp. 771, 773 (E.D. Mo. 1983).
Defendant fails to address the issue of control and, thus, does not establish the absence of material facts in issue. The Court must deny summary judgment on that basis. See Adickes v. S. H. Kress and Company, 398 U.S. at 160.
There is also a question of fact regarding the defendant's discharge of plaintiff, specifically, whether it was related to plaintiff's filing of a charge of discrimination against the defendant. Therefore, summary judgment is not appropriate on that issue.
It is true that claims of sex discrimination are not cognizable under 42 U.S.C. § 1981. Runyon v. McCrary, 427 U.S. 160, 167, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976) (court speaking in dictum). Therefore, the Court will grant summary judgment for the defendant on plaintiff's claims brought under § 1981.
An appropriate Order will be issued.
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