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Brown v. J. Kaz

September 11, 2009


On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 2-07-cv-00859) District Judge: Honorable Gary L. Lancaster.

The opinion of the court was delivered by: Sloviter, Circuit Judge.


Argued July 8, 2009

Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges


Appellant Kimberly Brown appeals the District Court's grant of summary judgment in favor of appellee J. Kaz, Inc., d/b/a Craftmatic of Pittsburgh ("Craftmatic"), on her employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. §§ 951 et seq.

We will affirm the District Court's grant of summary judgment on Brown's claims under Title VII and the PHRA because, as the District Court concluded, Brown was an independent contractor, rather than an employee, of Craftmatic and therefore outside the protections of those statutes. In contrast, Brown's claim under section 1981 requires more extended consideration, as that claim presents us with a matter of first impression in this circuit.


Craftmatic is a distributor of adjustable beds. Craftmatic sells its products through sales representatives who visit potential customers' homes to demonstrate the beds and attempt to make sales. In the summer of 2006, Brown, an African-American female, responded to a Craftmatic advertisement seeking sales representatives and spoke twice by telephone with Jay Morris, Craftmatic's recruiting manager, regarding a job.

Morris invited Brown to attend a training session at Craftmatic's Pittsburgh, Pennsylvania, office in August 2006. During these conversations, Brown, a resident of Cleveland, Ohio, told Morris that she would take the bus to Pittsburgh because she preferred not to drive in unfamiliar places. Morris testified at his deposition that he was concerned about Brown's ability to meet the transportation requirements of the sales representative position in light of Brown's unwillingness to drive to Pittsburgh, but nonetheless invited her to training because she was well-spoken and showed enthusiasm for the position.

Brown attended a training session, which was held from August 8-10, 2006, with two other trainees, Ronald Gibbs and Daryl Rinehart, neither of whom was African-American. Brown, Gibbs and Rinehart were met at Craftmatic by Morris. Brown contends that, during that initial meeting, Morris stated that "I know she [Brown] is going to be a problem" and that "She's going to be a headache. She asks a lot of questions." App. at 324.

Craftmatic's training manager, Daniel Pesta, conducted the training session, during which the trainees were introduced to the product they would be selling and Craftmatic's business practices. As part of the training, Pesta gave the trainees an assignment to complete between the first and second days of training and another assignment between the second and third days; the assignments required the trainees to complete standard sales contracts and similar activities. According to Pesta, Brown failed to complete both assignments. However, Craftmatic's owner, John Girty, testified at his deposition that Pesta told him that Brown completed her assignments; Brown also contends that she completed her assignments. In any event, Pesta provided Brown with a copy of Craftmatic's "Independent Contractor Agreement" at the end of the second day of training, and Brown signed the agreement on the final day of training.

Later the final training day, Brown, Gibbs and Rinehart took a break on a deck outside of Craftmatic's office. Morris approached them, extended his hand to all three, shook hands with Gibbs and Rinehart, and exchanged pleasantries with them. However, for reasons that are unclear, Brown refused to shake Morris' hand.

The details of what happened next are disputed, although it is undisputed that Brown and Morris had a heated argument. According to Brown, after she refused to shake his hand, Morris stated, "Well, you ain't nothing but a black person anyway" and "Well, you ain't nothing but the N word." App. at 329. Brown states that, after she asked, "Are you calling me a nigga," Morris "smirked and shook his head." App. at 329-30. Morris, on the other hand, testified at his deposition that he told Brown that "not shaking a man's hand is like calling a black person a derogatory name" and that "it's like calling a black person the Nword." App. at 157-58. After this exchange, as summarized by the District Court, "the two engaged in some discussion about slapping or hitting people, although it is unclear, but irrelevant, as to who initiated this topic of discussion." App. at 4.

Brown thereafter returned to the training room. Morris entered the room and told Brown that, if he had anything to say about it, she would not work for Craftmatic. Morris then reported the incident to Girty and told him that he did not want Brown to be a sales representative. Girty told Morris that he had used a bad choice of words. Pesta, who was not present at the incident, also met with Girty following the incident and also believed that Brown should not be permitted to act as a sales representative for Craftmatic, although it is unclear whether he so informed Girty at that meeting.

After meeting with Morris and Pesta, Girty decided that Craftmatic would not use Brown as a sales representative. Pesta informed Brown of Girty's decision and provided a check from Craftmatic to reimburse her for the ...

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