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OSHIVER v. LEVIN

January 11, 1996

SHERRY OSHIVER
v.
LEVIN, FISHBEIN, SEDRAN & BERMAN



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 JANUARY 11, 1996

 Sherry Oshiver is an attorney who began work for the law firm of Levin, Fishbein, Sedran and Berman (the Firm) in 1989. Her initial contact with the Firm was a telephone call she made to partner Howard Sedran to inquire about any possible openings for an associate. He told her that the Firm was not hiring associates at that time, but that if she would like, she could do hourly work for the Firm indexing complex litigation discovery documents when that type of work was available. She would earn $ 25.00 an hour and if an associate position became available, she would be considered for it. Oshiver accepted this offer and began work.

 Over the next year, Oshiver worked on several different cases, rarely in the Firm's offices. Rather, she would travel to the offices of the Firm's various co-counsel where the documents were located. She would make handwritten indices/summaries of the documents that she submitted to the Firm on a fairly regular basis. Every few weeks, she would submit an invoice to the Firm on her own letterhead indicating the number of hours she worked and demanding payment for services rendered.

 At the end of both 1989 and 1990, the Firm submitted IRS Forms 1099 on her behalf. This is the form used for independent contractors, as opposed to a Form W-2, which is used for employees. In 1989, Oshiver paid her income tax under the independent contractor/self employed theory and filed a Schedule C with her return. The Firm did not pay any taxes on her behalf, provide her with any benefits or give her an office space.

 In 1990, the Firm told Oshiver that it had no more work for her. Oshiver sought unemployment benefits, but was denied them following a judicial finding that she was an independent contractor, not an employee. At the unemployment hearing, she learned that shortly after she was told there was no more work, the Firm hired a male hourly worker. Later, she learned that in 1991, the Firm hired a man as an associate even though she was supposed to have been considered for any associate openings. She then brought this lawsuit alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e--2000e-17 (1994) and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §§ 951-963 (1991) (PHRA).

 In this Motion to Dismiss, the Firm contends that this Court has no subject matter jurisdiction over the Title VII claim because the Firm is not an "employer" under Title VII because it did not have enough employees during the relevant time periods and also that Oshiver was not an employee, but an independent contractor.

 On a motion to dismiss under Rule 12(b)(1), the plaintiff has the burden to show jurisdiction. Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); Lattanzio v. Security Nat'l Bank, 825 F. Supp. 86, 88 (E.D. Pa. 1993). We may consider the pleadings as well as evidence outside the pleadings, and may "weigh the evidence and satisfy [ourselves] as to [our] power to hear the case." Mortensen, 549 F.2d at 891.

 The standard for determining whether one is an employee has been established by the Supreme Court. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 117 L. Ed. 2d 581, 112 S. Ct. 1344 (1992). The standard is a flexible one in which a court considers the totality of all the factors before making a determination. Id. at 323. We will first consider the question whether Oshiver fits that standard. If we determine that she was not an employee, then we will not venture into the split between the Circuits to decide how to count workers for finding "employer" status. Compare Zimmerman v. North Am. Signal Co., 704 F.2d 347 (7th Cir. 1983) with Thurber v. Jack Reilly's, Inc., 717 F.2d 633 (1st Cir. 1983), cert. denied, 466 U.S. 904, 80 L. Ed. 2d 153, 104 S. Ct. 1678 (1984) (payroll method).

 Under Darden, we determine a hired person's status by considering "the hiring party's right to control the manner and means by which the product is accomplished." 503 U.S. at 323. In addition, we consider the following non-exclusive factors:

 1) skill required,

 2) source of the instrumentalities ...


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