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Pavlik v. International Excess Agency

March 23, 2010


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge




Plaintiff, W. Flagg Pavlik ("Pavlik") instituted the present action by filing a complaint in civil action (Doc. No. 1) on June 6, 2009. Plaintiff's amended complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure (Doc. No. 14) was filed on July 22, 2009 and alleged that Defendants: International Excess Agency, Inc. ("International Excess"), International Excess Program Managers, Inc., Getguard Insurance, WSIB Insurance Agency, LLC, and Willcomply, LLC (collectively referred to as "Defendants"), harassed and discriminated against Plaintiff because of his sex, male, and his age, 62. Plaintiff alleged one federal claim against all Defendants, namely employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000(e) et seq. and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.. Plaintiff also alleges two state law claims, namely; Count II- Employment Discrimination by all Defendants in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. § 951 et seq., and Count III- Breach of Contract by Defendant International Excess.

Before this Court is Defendants' Motion for Summary Judgment (Doc. No. 62). Defendants' argue that Counts I and II should be dismissed because Plaintiff was not an "employee" entitled to protection under Title VII, the ADEA and the PHRA and Count III should be dismissed as Plaintiff cannot show the existence of an "original agreement" and International Excess did not breach the Independent Contractor Agreement. (Doc. No. 65). For the foregoing reasons, this Court will grantDefendants' Motion for Summary Judgment as to Count I and will dismiss counts II and III without prejudice leaving Plaintiff free to file these claims in state court. (Doc. No. 62).


Fed.R.Civ.P. 56(c) provides that on a motion for summary judgment, the "judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." "Rule 56 of the Federal Rules of Civil Procedure 'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Summary judgment is appropriate "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 a judgment as a matter of law." Woodside v. Sch. Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted).

An issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof."), citing Anderson and Celotex Corp. Recently, the United States Supreme Court "emphasized, [w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372 (2007) (internal quotations omitted), quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).

In deciding a summary judgment motion, a court must view the facts in the light most favorable to, draw all reasonable inferences, and resolve all doubts, in favor of the nonmoving party. Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001); Woodside, 248 F.3d at 130; Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir. 1999). Further, a court must not engage in credibility determinations at the summary judgment stage. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).


A. Federal Law Claim-Count I Will Be Dismissed Plaintiff Is Not an Employee under Title VII or ADEA

Title VII and the ADEA protect employees from employment discrimination with respect to an employee's age and sex among other characteristics. 42 U.S.C. §2000(e)(2). Only employees are entitled to protection under Title VII or the ADEA . See, e.g., Menkowitz, M.D. v. Pottstown Memorial Medical Center, 154 F.3d 113 (3rd Cir. 1998), Brown v. J. Kaz, Inc., 581 F.3d 175 (3rd Cir. 1975). Congress has not extended Title VII's protections and remedies for discrimination to independent contractors. Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435 (7th Cir. 1996); Walker v. Correctional Medical Systems, Inc., 886 F.Supp. 515, 519 (W.D.Pa. 1995).

Neither Title VII nor the ADEA provide a helpful definition of 'employee'. Title VII defines an employee as "an individual employed by an employer, except. . . ." for certain exceptions not here relevant. 42 U.S.C. § 2000(e)(b). The Supreme Court has adopted a common law agency test to determine if an employment relationship exists through a range of twelve factors including: the duration of the relationship, employee benefits and the hiring party's right to control manner and means by which product is accomplished. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-324 (1992), citing Restatement (Second) of Agency § 220(2).

Plaintiff was an independent contract and therefore is not entitled to Title VII or ADEA's protections.*fn1 Plaintiff admits that he signed the Independent Contractor Agreement ("agreement") and was an independent contractor as of February 2008 through the time of his termination in June 2008. (Appx. Plaintiff's Dep. 104:20-105:18). Absent an employment contract, ...

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