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Bernhard v. TRC Global Solutions

October 13, 2010


The opinion of the court was delivered by: Ambrose, District Judge


Plaintiff, John Bernhard ("Plaintiff" or "Bernhard"), brought this action against Defendant TRC Global Solutions, Inc. ("Defendant" or "TRC"), alleging employment discrimination on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. ("PHRA"). Defendant has filed a motion for summary judgment in an attempt to dismiss Plaintiff's claims. (Docket No. 23). Plaintiff opposes Defendant's motion. After careful consideration of the parties' submissions and for the reasons set forth below, Defendant's motion is denied.


A. Factual Background

Unless otherwise indicated, the following material facts are undisputed.

Defendant TRC Global Solutions, Inc., provides third-party relocation services for both the new and existing employees of businesses. TRC generates business by contacting prospective clients, providing information about TRC's services, negotiating rates and terms of service, and then executing a contract. Paul Haislmaier formed TRC, and he served as the company's president from 1987 through 2006.

Haislmaier met Plaintiff at a conference, and they subsequently became friends. In 1991, Plaintiff began providing services for TRC on a commission basis in the Pittsburgh area. Haislmaier and Plaintiff had an arrangement in which Plaintiff would contact Pittsburgh corporations and attempt to sell TRC's relocation services. Plaintiff would then turn over the corporations' information to TRC, and TRC would follow up on these leads. Plaintiff's employment had no definitive timeframe or agreed upon date for termination.

Plaintiff also operated a business called Bernhard Realty. Plaintiff claims that he was the owner and the only person involved in Bernhard Realty. TRC disputes this characterization and claims that Plaintiff ran Bernhard Realty as an independent contractor who at one point contracted to provide relocation services for RRI, another relocation service provider. With respect to RRI, Plaintiff asserts that he performed some services without compensation for RRI prior to 1994. Plaintiff also provided financial services for a variety of clients, including Advisors Capitol Management.

TRC alleges that Plaintiff, with the exception of sales meetings, could choose his own hours, the number of hours he worked, whether he employed assistants, the companies he cold-called, and the number of companies that he cold-called. Plaintiff admits that TRC did not impose required work hours or minimum contact requirements, but states that none of the members of TRC's sales team were required to punch in or punch out, or log the hours that they worked. Michelle Wiggetman, later hired as the leader of the sales team, testified that, while the sales team was expected to work full-time hours, usually from eight-thirty in the morning until five o'clock at night, there was absolutely no method to track the employees' hours. If any sales person hired an assistant, TRC would only pay for the assistant if the hiring was pre-approved.

Additionally, the sales team members worked from their homes, and Plaintiff performed his services from his Bernhard Realty offices. TRC did not pay for or contribute toward the cost of Plaintiff's office. TRC purchased a computer and monitor for Plaintiff's use. Plaintiff states that prior to 2000, he was paid directly, and 1099s were issued in his name. From 2000 through the time that his services were discontinued, all of his commissions were paid to Bernhard Realty. TRC did not afford Plaintiff any employee benefits, such as insurance, sick days, or vacation days. TRC also did not withhold any taxes from Bernhard Realty's commission checks, and Plaintiff paid self-employment taxes on commissions paid by TRC.

Plaintiff's name was included on internal company documents along with the names of other employees, including a telephone directory, and Plaintiff was held out as an employee of TRC on marketing materials. Plaintiff points to his business cards as evidence that he held three different titles while employed by TRC. He also points to deposition testimony that other members of TRC's sales team held the position of Director of Global Business Development. TRC disagrees, claiming that Plaintiff created his own titles solely for his independent contractor "door- knocker" services.

The sales team members' services, including Plaintiff's, were not supervised on a daily basis. The sales team members also were required to use their own initiative to identify new clients and generate business. Although Defendant asserts that Plaintiff did not have a direct supervisor at TRC to whom he was required to report and that no one dictated the terms of his provision of services, Plaintiff claims that he reported to Paul Haislmaier and that an organizational chart shows him reporting to Michelle Wiggetman.

Defendant further alleges that Plaintiff was not treated like the other employees because Haislmaier and Wiggetman did not have the right to control how Plaintiff performed his cold-calls. Plaintiff disagrees, claiming that he was provided with outlines to use during his presentations to prospective clients, and that Haislmaier provided him with potential clients.

In October 2006, Haislmaier hired Douglas Berto as Vice President to oversee the sales force and "learn the business." Berto testified that one of the first things he identified that TRC needed was a full time sales force with a sales leader. In 2007, TRC hired Michelle Wiggetman as a sales leader on Berto's recommendation. Wiggetman was born in 1970 and is thirty years younger than Plaintiff who was born in 1940. Berto eventually was promoted to the position of President and Haislmaier took the position of Chief ...

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