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May 16, 1995


The opinion of the court was delivered by: DONETTA W. AMBROSE

 Plaintiff Celeste Walker ("Walker") has filed this employment discrimination action seeking compensation for the alleged discriminatory conduct of Defendants Correctional Medical Systems ("CMS") and Allegheny County (the "County") arising out of her employment as a nurse at the Allegheny County Jail. Pending before the Court is the County's Motion for Summary Judgment. For the following reasons, the County's Motion will be granted.

 The following facts are undisputed. Walker is an African-American Licensed Practical Nurse who was hired by CMS in August of 1991. At that time, CMS had entered into an agreement with the County to provide all health care services to the inmates at the Jail. The document setting forth the terms and conditions of the agreement between CMS and the County specifically states that CMS was an independent contractor and that neither CMS nor its personnel were to be considered employees of the County. (Agreement, Pl. Exh. 4 at 19.) Walker was assigned by CMS to work at the Jail and began working there in August of 1991.

 Walker performed her work without incident for several months. On March 13, 1992, however, Walker inadvertently took home a set of keys belonging to the doors to the medical department of the Jail. (Walker Dep. at 38.) Walker knew that she was prohibited from taking home any keys belonging to the Jail, but she did not realize that she had the keys in her possession until after she had arrived home. (Walker Dep. at 30, 34.) Because Walker had worked the 3:00 p.m. to 11:00 p.m. shift that day, she did not arrive home until after midnight. (Walker Dep. at 31.)

 What happened when Walker arrived home is not disputed by the County. *fn1" According to Walker, she telephoned the night nursing supervisor, Bernie Barndor, who was working at the Jail when Walker arrived home. (Walker Dep. at 35-36.) Walker told Nurse Barndor that she had accidently taken the keys home with her and that she had no way of getting back to the Jail because buses were unavailable at that time of night and because she did not have any money for a cab. (Walker Dep. at 34.) Nurse Barndor advised Walker that she had to return the keys, and Walker reiterated that she had no way of getting back to the Jail that night. Nurse Barndor asked Walker if she were scheduled to work the following day, and Walker advised Nurse Barndor that she was working the 3:00 to 11:00 p.m. shift the next day. Nurse Barndor then told Walker to bring the keys with her when Walker reported for her next shift, although Nurse Barndor did express some doubt about her ability to authorize Walker to wait until her next shift before bringing in the keys. (Walker Dep. at 29, 35.)

 Walker did not return the keys to the Jail until the following afternoon, when she reported for her 3:00 to 11:00 p.m. shift. When Walker arrived at the Jail, she found everyone in the Medical Department in a "frenzy". (Walker Dep. at 39.) Apparently the only other set of keys providing access to the narcotics cabinet had been locked inside an office by other nurses on duty, and because Walker had in her possession the only other set of keys that could unlock the office, the medical staff had no access to certain medications that had to be administered. (Walker Dep. at 40-41.) A corrections officer issued a written report about the incident, which was subsequently reviewed by the warden at the Jail, Charles Kozakiewicz. Warden Kozakiewicz, upon learning of the fact that Walker had taken Jail keys home with her and had not returned them immediately upon discovering that she had them in her possession at home, withdrew Walker's security clearance and denied Walker access to the Jail so that Walker was temporarily "locked out" of the Jail until the issue was resolved. (Walker Dep. at 43; Kozakiewicz Dep. at 39.) Warden Kozakiewicz subsequently reinstated Walker's security clearance, and Walker received a "final warning" from CMS nursing supervisor Debbie Hunt regarding the key incident. *fn2" (Walker Dep. at 38, 153.)

 After the key incident, Walker filed charges of discrimination with the Equal Employment Opportunity Commission because she believed she had been treated more harshly than other white nurses who had also taken keys home from the jail and had not returned them immediately. (Walker Dep. at 31, 154-155, 157-158.) Sometime after Walker filed her EEOC charge, Walker was fired from her position. The reason for the discharge, according to CMS, was that Walker had intentionally falsified medical records and had failed to follow proper procedures regarding record-keeping. (Walker Dep. at 67.) Walker, of course, believes that the reason offered by CMS was merely a pretext for the real reason, race discrimination and retaliation for filing the EEOC charge. She contends that other, white employees who allegedly made "intentional misrepresentations" in their record-keeping on a routine basis were not even scrutinized or disciplined, let alone terminated. (Walker Dep. at 111; James Aff. PP 6-7.)

 Walker subsequently filed suit in this Court pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging that Defendants discriminated against her on the basis of her race and retaliated against her when they denied her access to the Jail following the key incident, issued the "final warning", and ultimately discharged her. The County has moved for summary judgment, arguing that Walker is not an "employee" of the County for purposes of Title VII and that the evidence is insufficient to support a Title VII claim against the County.


 Summary judgment may only be granted 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. Proc. 56(c). In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact, and an issue is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Where the nonmovant will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial. Celotex, 477 U.S. at 322.

 A. Employee Status Under Title VII.

 The County first argues that summary judgment is appropriate because the evidence fails to show that Walker was an "employee" of the County for purposes of Title VII. Title VII prohibits employers from discharging an employee because of that employee's race or in retaliation for filing an EEOC charge. 42 U.S.C.A. § 2000e-2(a)(1) (1981). Because the protection of Title VII extends only to those who are "employees" and does not extend to "independent contractors," it is the plaintiff's burden to prove the existence of an employment relationship. EEOC v. Zippo Manufacturing Co., 713 F.2d 32, 35 (3d Cir. 1983).

 Clearly Title VII does not helpfully define the term "employee." It simply states that an employee is "an individual employed by an employer." 42 U.S.C. § 2000e(f). The question thus becomes whether the holding in Darden, which addressed employee status under ERISA, should be applied to determine employee status under Title VII. Several courts having addressed the issue have concluded that the holding in Darden has a broad implication for statutory construction and should be applied to employment discrimination cases. See, e.g., Wilde v. County of Kandiyohi, 15 F.3d 103, 105-106 (8th Cir. 1994) (Title VII); Frankel v. Bally, Inc., 987 F.2d 86, 90-91 (2d Cir. 1993) (ADEA); Stouch v. Brothers of the Order of the Hermitage of St. Augustine, 836 F. Supp. 1134, 1139 (E.D. Pa. 1993); Lattanzio v. Security National Bank, 825 F. Supp. 86, 89-90 (E.D. Pa. 1993) (Title VII); Cox v. Master Lock Co., 815 F. Supp. 844, 845-46 (E.D. Pa. 1993) (ADEA).

 This court believes that Darden requires application of the common-law agency test rather than a hybrid test in determining whether someone is an employee for purposes of Title VII. First, we agree that Darden was not limited in its application solely to ERISA claims but rather set forth a general rule of statutory construction in cases where Congress does not helpfully define the term "employer." Frankel, 987 F.2d at 90; Stouch, 836 F. Supp. at 1139. In addition, the definition of "employee in ERISA, "any individual employed by an employer," 29 U.S.C. § 1002(6), is identical to that used in Title VII. Moreover, the Supreme Court explicitly rejected the directive announced in United States v. Silk, 331 U.S. 704, 91 L. Ed. 1757, 67 S. Ct. 1463 (1947), the case upon which the hybrid standard is in large part based, calling Silk "feeble precedent[] for unmooring the term [employee] from the common law." Darden, 503 U.S. 318, 112 S. Ct. 1344, 1349, 117 L. Ed. 2d 581. For these reasons, we conclude that Darden requires application of the common-law agency test in determining employee status under Title VII.

 Darden set forth the factors to be applied in determining employee status under the common-law agency test:

(1) the hiring party's right to control the manner and means by which the product is accomplished;
(2) the skill required;
(3) the source of the instrumentalities ...

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