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Faush v. Tuesday Morning, Inc.

United States District Court, Third Circuit

January 23, 2014

MATTHEW FAUSH
v.
TUESDAY MORNING, INC

MEMORANDUM

L. FELIPE RESTREPO, District Judge.

Plaintiff, Matthew Faush, initiated this action against defendant, Tuesday Morning, Inc. ("Tuesday Morning"), seeking redress for racial discrimination.[1] Specifically, the Complaint alleges, "Plaintiff and other African American coworkers were terminated by Defendant because of their race." See Pl.'s Compl. ¶ 34. Plaintiff seeks equitable relief, as well as compensatory and punitive damages, against Tuesday Morning under (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), (2) 42 U.S.C. § 1981, and (3) the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. § 951, et seq. See Pl.'s Compl. ¶¶ 1-44. Count I of plaintiff's Complaint includes allegations of unlawful racial discrimination under Title VII. Id . ¶¶ 35-37. In Count II, under § 1981, plaintiff alleges that he suffered damages by way of denial of benefits of a contractual relationship with defendant as a result of intentional discrimination on the basis of his race. Id . ¶¶ 39-41. Count III alleges racial discrimination under the PHRA. Id . ¶¶ 42-44.

Before the Court is defendant's motion for summary judgment, defendant's brief in support thereof, plaintiff's response, and defendant's reply. For the following reasons, defendant's summary judgment motion is granted.

1. BACKGROUND

Plaintiff alleges that a Tuesday Morning manager, Keith Davis, and one of defendant's female employees, who were both Caucasian, acted in a way constituting racial discrimination against plaintiff and his coworkers at Tuesday Morning. See Compl. ¶¶ 17-37. Plaintiff worked for several days at a Tuesday Morning store in Bucks County, Pennsylvania ("the Store"). See id. ¶¶ 12-14. He alleges that Tuesday Morning, through the actions of Mr. Davis, terminated plaintiff and other African American coworkers, resulting in damages to plaintiff. Id . ¶ 14. Labor Ready ("the staffing company"), the national staffing company who assigned plaintiff to work at the Store, and Tuesday Morning are two separate and distinct companies. See Decl. of Theresa Kirk-Fowler, Def.'s Senior H.R. Mgr., dated 5/20/13, ¶ 3. Defendant, Tuesday Morning, is a retail company operating over 800 stores in 43 states. Id . ¶ 2. It sells home and gift closeout merchandise. Id.

On November 22, 2010, Labor Ready and Tuesday Morning entered into an Agreement to Supply Temporary Employees ("Agreement") for services to be provided in 2011 (attached to Kirk-Fowler Decl. as Ex. A). The Terms and Conditions to the Agreement ("Terms and Conditions") (attached to Kirk-Fowler Decl. as Ex. B) were fully incorporated into the Agreement itself.

Pursuant to the Agreement, Labor Ready assigned several of its employees, including plaintiff, to work at the Tuesday Morning Store in Chalfont, Pennsylvania to assist Tuesday Morning with preparing its Store for opening in June 2011. Id . ¶ 6. Plaintiff worked at the Store on May 9, 10, 12, 23, 24, 25, 26, 27, 28, and 29 in 2011. Id . ¶ 9.

Tuesday Morning has no record that plaintiff has ever applied for employment with Tuesday Morning, Tuesday Morning has never paid any wages to plaintiff or provided any employment benefits to him, and it also has never entered into any contracts with him. Id . ¶ 2. Under the Agreement and the incorporated Terms and Conditions, Labor Ready was solely responsible for the payment of wages to the temporary employees it assigned to Tuesday Morning. Id . ¶ 5. Labor Ready was also solely responsible for paying all required taxes and social security on behalf of such employees, and it was solely responsible for either self-insuring or maintaining workers compensation insurance for the employees it provided to work on Tuesday Morning projects. Id . Tuesday Morning never provided any Labor Ready workers assigned to work at the Store with a key to the Store. Tuesday Morning never intended to utilize any of the Labor Ready employees who worked at the Store as Tuesday Morning employees. Id.

Labor Ready gave a time card to all of its employees, including plaintiff, that were assigned to work at the Store, and once the amount of time they spent working at the Store was recorded, the time cards were returned to the Labor Ready office. Labor Ready charged Tuesday Morning an hourly fee for each of the temporary employees it provided to work at the Store, Labor Ready sent an invoice to Tuesday Morning listing the number of hours each Labor Ready employee worked at the Store, and Tuesday Morning paid the amount of the invoice to Labor Ready. Id . ¶¶ 8-9.

Labor Ready was solely responsible for setting the pay rate and paying the wages of the employees, including plaintiff, that they assigned to work at the Store. Id . ¶ 10. Indeed, Labor Ready has never sent plaintiff's social security number to Tuesday Morning. Id.

Plaintiff was not expected to contact any Tuesday Morning employee if he was not able to report to work at the Store. Id . ¶ 11. Furthermore, when plaintiff worked at the Store in May 2011, he only could perform work that was within the scope of the Agreement that Tuesday Morning had with Labor Ready. Id.

Tuesday Morning has never had the authority to terminate plaintiff's employment with Labor Ready. Id . ¶ 12. Accordingly, after plaintiff ended his work at the Store in May 2011, Tuesday Morning never received any claim for unemployment compensation benefits from plaintiff naming Tuesday Morning as his employer. Id.

In support of its summary judgment motion, defendant argues that plaintiff is not entitled to relief under Title VII and the PHRA because plaintiff was not an employee of Tuesday Morning. See Def.'s Br. 2. Similarly, defendant further argues that plaintiff's claim under § 1981 should be dismissed ...


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