Because the court concludes that no direct or de facto employment relationship existed
between Abbott and Westmont, her claims under Title VII must fail.
CONCLUSION
For the reasons stated above, Westmont’s motion for summary judgment is granted [#11].
The clerk is instructed to enter judgment in favor of the defendant. All future dates, including the

October 20, 2003, trial date, are stricken. This case is termianted.

o

JOAN HUMPHREY LEFKOW
United States District Judge

Date: September 5, 2003

13



maintains that Chiappano used sexually derogatory names in reference to her, but she was never
present when Chiappano used these terms.” (Def. L.R. 56.1 [ 41.) One co-worker told Abbott
that he heard Chiappano call her a “cunt” at least once. (PI. L.R. 56.1 7 64.) On May 8, 1995,
Abbott made a written report to Assistant Chief David Weiss of some sexually derogatory
remarks made by Chiappano. (Def. L.R. 56.1 9 48.) Abbott stated that she heard from another
employee that Chiappano wanted to catch Abbott and a co-worker “in the act,” thereby implying
that Abbott was having a sexual relationship with the co-worker. On the same day, Chiappano
allegedly ordered firefighter Larry Masa to “write up Pam.” (Pl. Ex. 5.) On another occasion,
Tim Saul, both a contract paramedic and a part-time Firefighter, referred to Abbott as “Queen
Bee” and another paramedic as “Assistant Queen Bee.” (/d.) Abbott also complained that
Chiappano constantly intimidated her by sitting with his arms folded over his chest and glared at
her. (d.)

In addition to Chiappano, Abbott also complained that Lieutenant Steve Demas allegedly
referred to her as “the tits” in late 1994. (Def. L.R. 56.1 943.) Abbott also complains of
Westmont’s Fire Chief, Frank Trout (“Chief Trout”), who she maintains often commented about
sexual matters and had a philosophy that women belonged at home barefoot and pregnant and not
in the work force. (PI. L.R. 56.1 9] 27, 32.) Abbott testified that on one occasion Chief Trout
arrived late for a meeting and joked, “Sorry that I’m late, but I was at the hot tub[] fucking my

wife, and that’s why I’m late.” (Pl. L.R. 56.1 28.) Abbott also testified that Chief Trout had

7In both her response to Westmont’s statement of material facts and her own additional statement of facts,
Abbott never details what it was Chiappano said, when he said it or how often he said it. In her complaint and in
response to Westmont’s motion for summary judgment Abbott states that she was referred to regularly as “Big Tits,”
“Tits,” “The Tits,” “Cunt,” and “Bitch.” Abbott only details these incidents of alleged harassment, however, in an
exhibit, with no foundation provided, attached to her response in opposition to summary judgment, which the court
only considers because it will afford leeway to Abbott.


The contract also provided that “other supervision, control and direction, including but not
limited to the power of discipline, shall be the responsibility of PSSI.” (/d.) This further
illustrates that the daily control an employer is able to exert over an employee was within the
power of PSSI and not Westmont.

Finally, other facts in the record point to the same conclusion, including that PSSI
decided which municipality to assign a particular employee to (Def. L.R. 56.1 4 5), no personnel
file or written work evaluation was ever performed for Abbott by anyone at Westmont (Def. L.R.
56.1 21), and PSSI supplied replacement paramedics if a PSSI paramedic was absent from duty.
(Def. L.R. 56.1925.) Accordingly, all of the above leads the court to weigh this factor against
an employer/employee relationship.

2 Necessary Skilis

“An individual’s unique work skills may indicate independent contractor status,” Worth,
276 F.3d at 263, while skills which are more mundane or that the entity provided training for
would be more reflective of an employment relationship. Kerr, 2002 WL 1477639, at *5. In this
case it was PSSI’s responsibility to insure that each paramedic assigned to Westmont was
licensed as a paramedic by the State of Illinois and was certified as a Firefighter II pursuant to the
guidelines of the State of Illinois Fire Marshall. (Def. L.R. 56.1 {| 23.) Moreover, any paramedic
hired by PSSI after the date of the contractual agreement with Westmont was required to be
certified within six months of hire, at PSSI’s expense. (/d.) Finally, ongoing training and
continuing education of PSSI paramedics was at the expense of PSSI and was not to interfere
with PSSI paramedics’ work shifts at Westmont. (Def. L.R. 56.1 426.) This factor weighs

against an employer/employee relationship.


legitimate and nondiscriminatory reasons for its actions were a pretext for discrimination.
Because the court concludes that Abbott was neither a direct or indirect employee of Westmont,
the court does not address the merits of the sexual harassment and sex discrimination claims.

Starting with the issue of direct employment, Westmont moves for summary judgment on
grounds that Abbott was an independent contractor employed by PSSI and, therefore, because no
employment relationship existed, she was not an employee of Westmont for Title VII purposes.
Under established Seventh Circuit precedent it is clear that an independent contractor is not
protected under Title VI. £.g., Worth v. Tyer II, 276 F.3d 249, 262 (7th Cir. 2001); EEOC v.
North Knox Sch. Corp., 154 F.3d 744, 747 (7th Cir. 1998); Alexander v. Rush N. Shore Med.
Ctr., 101 F.3d 487, 492 (7th Cir. 1996); Ost v. West Suburban Travelers Limousine, 88 F.3d 435,
440 (7th Cir. 1996); Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir.
1991). The issue of whether an individual is an employee or independent contractor under Title
VIL is a legal conclusion for the court to determine by applying a five factor test:

(1) [Thhe extent of the employer’s control and supervision over the worker,

including directions on scheduling and performance of work, (2) the kind of

occupation and nature of the skill required, including whether skills are obtained

in the workplace, (3) responsibility for the costs of operation, such as equipment,

supplies, fees, licenses, workplace, and maintenance of operations, (4) method

and form of payment and benefits, and (5) length of job commitment and/or

expectations.
Worth, 276 F.3d at 263, quoting Knight, 950 F.2d at 378-79; North Knox Sch. Corp., 154 F.3d at
747. The most important factor is the employer’s right to control the worker’s actions. Jd., citing

Knight, 950 F.2d at 378. “If an employer has the right to control and direct the work of an

individual, not only as to the result to be achieved, but also as to the details by which that result


conversations where he stated his belief that women were taking jobs that should go to men and
that women should stay home cooking and taking care of the family and children.> (Pl. L.R. 56.1
29.)

On May 18, 1995, Chief Trout wrote a memo to Abbott asking for the names of any
individuals that may have information regarding her May 8 written report about Chiappano and
the sexual comments he made behind Abbott’s back. (Def. L.R. 56.151.) Abbott apparently
never received this memo. (Pl. Resp. to Def. L.R. 56.1 451.) In any event, on the same day
Trout’s memo was written Abbott resigned from her employment with PSSI (Def. LR. 56.1
416.)

DISCUSSION

Abbott brings sexual harassment and sex discrimination claims against Westmont. With
respect to both claims, Westmont argues that Abbott’s action fails because she was an.
independent contractor who cannot recover under Title VII and because no “indirect”
employment relationship can be found. Assuming either an employer/employee or an “indirect”
employment relationship were found, however, Westmont argues that the sexual harassment
claim should be dismissed because (1) Abbott was not constructively discharged; (2) there was
no hostile work environment; (3) there was an adequate response by Westmont to any alleged
harassment; and (4) Abbott declined a transfer from PSSJ to another contract municipality.
Westmont argues that the sex discrimination claim fails as a matter of law because there is

insufficient evidence for Abbott to meet her prima facie case or to establish that Westmont’s

3 Abbott also complains of inappropriate behavior by Chief Trout toward Frederick’s wife. Abbott does not
explain how this evidence is relevant here.


Based on the court’s review of the facts as presented by the parties, this factor weighs
against a possible employer/employee relationship. The ultimate decision to terminate and/or
transfer an employee stayed with PSSI. Abbott’s argument that Westmont could “recommend”
termination implicitly proves Westmont’s point, as if Westmont can recommend changes to PSSI
it is not the ultimate decisionmaker and does not control the employment relationship.
Moreover, a review of the evidence Abbott cites to shows nothing more than if a municipality
complained of a certain paramedic, PSSI would strongly consider removing that paramedic from
that municipality. (Frederick dep. at 115-16.) This evidence does not support the notion, as
Abbott suggests, that the employee’s employment relationship with PSSI would be terminated
based on any such recommendation.

In addition, other evidence supports Westmont’s argument that no employer/employee
relationship existed. In this respect, the language of the contract between Westmont and PSSI
provides pertinent insight. While Abbott argues that Westmont and Chief Trout had the right to
control and direct her work, this power was granted by contract and gave Westmont’s fire chief,
or his designee, the ability to assign to PSSI paramedics “any and all lawful duties,
responsibilities and assignments.” (Def. Ex.4.) This is more an example of the parties’ freedom
of contract rather than the discretionary daily control an employer can expect to exert over an
employee. E.g., North Knox Sch. Corp., 154 F.3d at 748; see also, Mazzei v. Rock-N-Around
Trucking Inc., 246 F.3d 956, 964 (7th Cir. 2001) (“Although Mazzei accurately describes RNA’s
ability to instruct owner-drivers who accept an assignment from RNA, the control RNA exercises
over its owners-drivers amounts to little more than the basic level of supervision required to

ensure that the arrangement between RNA and its owners-drivers is of some value to RNA.”).


ye

Minute Order Form (06/97)

Lee

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Joan H. Lefkow than Assigned Judge
CASE NUMBER 02 C 2296 DATE 91/5/2003
CASE Pamela Abbott vs. Village of Westmont
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Qa Answer brief to motion due . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) o Status hearing{held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) im Trial{set for/re-set for] on at
(8) im} (Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) OLocalRule 41.1 OFRCP4I(@)(1) OFRCP41(a)(2).
ao [Other docket entry] Enter Memorandum Opinion and Order. Defendant’s motion for summary
judgment [11-1] is granted. Judgment entered in favor of the defendant. All future dates, including trial
date of 10/20/03, are stricken.
di) ff {For further detail see order attached to the original minute order.]
No notices required, advised in open court,
2
No notices required. umber of notices
VY | Notices mailed by judge’s staff. sep 0 9 7003
Notified counsel by telephone, dae dckered
Docketing to mail notices.
¥ | Mail 40 450 form. 4809 {olersia st dofihnd ccfary inva,
Copy to judge/magistrate judge. ae
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3. Duration of employment

Generally, an employment relationship is more likely when the parties have an
expectation that their relationship will continue. E.g., Hojnacki, 285 F.3d at 550; Kerr, 2002 WL
1477629, at *6. The two contracts between PSSI and Westmont ran from May 1, 1992 through
April 30, 1995 and May 1, 1995 through April 30, 1998. (Def. Ex. 3, 4.) Because the contract
was set to expire and because there is no evidence of guaranteed renewals, see North Knox Sch.
Corp., 154 F.3d at 750, this factor suggests that no employer/employee relationship existed.

Weighing all of the above factors, the court concludes that Abbott did not have an
employment relationship with Westmont. Only one of the five factors at least arguably supports
Abbott, while four of the others cut against her view, including the most important factor of
control. Thus, the court concludes that no direct employment relationship existed between
Abbott and Westmont for Title VII purposes.

In the alternative, Abbott asserts that Westmont was her employer under an indirect or
“de facto” theory. Such a de facto employment relationship exists when the employer “so far
control{s] the plaintiff's employment relationship that it was appropriate to regard the defendant
as the de facto or indirect employer of the plaintiff... .” EEOC v. State of Illinois, 69 F.3d. 167,
169 (7th Cir. 1995). The court in State of Hlinois, in the context of examining whether the state
was the “real” employer of teachers employed by local school districts, opined that the key
powers are “naturally, those of hiring and firing.” Jd. at 171. The court concluded that these
powers were in the hands of the local school districts, even if they were constrained by
provisions of the state’s school code. Id. Moreover, the court noted that “were the state pulling

the strings in the background-telling the local school districts whom to hire and fire and how

11



3. Responsibility of costs of operation

“When a person bears the costs of performing a job, such as purchasing tools of the trade,
that person is more likely to be found to be an independent contractor.” Kerr, 2002 WL
1477639, at *5. Abbott’s ambulance and paramedic equipment were provided by Westmont.
(Pl. Resp. to Def. L.R. 56.1 4 11.) However, as previously noted, PSSI was responsible for the
costs of training and licenses for its paramedics. (Def. L.R. 56.1 § 23.) Thus, this factor would
appear to be inconclusive.
4. Income and benefits

“{A] worker will be considered an employee of a company when the company pays the
person a set wage, and treats the person as an employee for tax purposes.” Kerr, 2002 WL
1477639, at *5. PSSI exclusively paid all of Abbott’s salary with the exception of a period
between January 1, 1995 through May 1, 1995, in which Abbott was paid an hourly wage by
Westmont for hours worked in the position of EMS Coordinator. (Def. L.R. 56.199.) This
amount was in addition to her salary paid by PSSI. (/d.) Moreover, while paying her this hourly
wage, Westmont issued Abbott an IRS 1099 form in the amount of $1,752.00. A 1099 form is a
form “which would be appropriate for independent contractors.” North Knox Sch. Corp.,
154 F.3d at 750. Abbott received no other benefit from Westmont and Westmont did not
withhold any money from her paycheck. (Def. L.R. 56.1 §{ 13-14.) PSSI paid all other salaries,
pensions, holiday pay, sick pay and state and federal taxes. (Def. L.R. 56.126.) Therefore, this

factor weighs against Abbott being an employee of Westmont.

10


is achieved, an employer/employee relationship is likely to exist.” Worth, 276 F.3d at 263, citing
Spirides v. Reinhardt, 613 F.2d 826, 831-32 (D.C. Cir. 1979).
i. Employer Control

The relevant inquiry here is the type of control that is exerted, as “freedom of contract
permits contracting parties to ‘control’ each other by detailing obligations in their agreement.”
Kerr v. WGN Cont’l Broad. Co., No. 01 C 7196, 2002 WL 1477629, at *4 (N.D. IIL. July 9,
2002), citing Hojnacki v. Klein-Acosta, 285 F.3d 544, 551 (7th Cir. 2002) (“one can ‘control’ the
conduct of another contracting party by setting out in detail his obligations; this is nothing more
than the freedom of contract.”). Such contractual control is “different in kind from the type of
discretionary daily control that employers routinely exert over employees.” Jd., citing Hojnacki,
285 F.3d at 551; see also, North Knox Sch. Corp., 154 F.3d at 748.

Abbott has the burden of proof on this issue, see Ost, 88 F.3d at 438, and she has not
submitted detailed factual evidence showing the degree of control and supervision Westmont
maintained over her work. She states that she was under the direct contro! and supervision of the
Westmont Fire Department, specifically Assistant Chief Weiss, because (1) Westmont had the
right to control and direct her work, (2) Westmont could have recommended her termination to
PSSI, (3) Chief Trout had control over the functions and the duties of the department and (4) the
highest ranking member of Westmont’s Fire Department was in charge of any particular scene
and Abbott would be under this individual’s supervision and control. Westmont responds that
the contract entered into between PSSI and Westmont provided that the supervision, control and

direction, including the power of discipline of the PSSI paramedics, rested with PSSI.


recommend and request that PSSI terminate her employment relationship. (Pl. Resp. to Def. LR.
56.14 15.) Westmont did not maintain a personnel file for Abbott nor did it perform any written
work performance evaluations for her. (Def. L.R. 56.1 9 20-21.) When Abbott resigned from
PSSI, she submitted her resignation to Gary Frederick (“Frederick”), the President of PSSI, and
did not inform anyone at Westmont. (Def. L.R. 56.1 4] 17-18.) With the exception of the
additional hours Abbott worked for Westmont from January 1, 1995 through May 1, 1995, PSSI
paid all of Abbott’s salary, pension, holiday pay, sick pay, state and federal taxes and all other
benefits.' (Def. L.R. 56.1 427.)

In November 1994 PSSI promoted Abbott to the position of EMS Coordinator, with the
responsibilities of supervising the work of the other PSSI contract paramedics at Westmont.
(Def. L.R. 56.1 § 29.) Westmont has three fire stations located at three separate locations:
Station #1, Station #2 and Station #3. (Def. L.R. 56.1 $30.) Abbott, while working for PSSI and
assigned to Westmont, worked out of Station #1, where all the contract paramedics always
worked while on shift. (Def. L.R. 56.1 431.) Firefighters employed by Westmont were part-
time firefighters who worked out of Station #2 or #3. (Def. L.R. 56.1 § 32.) The contract
paramedics employed through PSSI would have contact with the part-time firefighter employees
of Westmont at fire class or at daily fire drills. (Def. L.R. 56.1 { 33.)

Firefighter Al Chiappano was a part-time employee of Westmont during 1994 and 1995.
(Def. L.R. 56.1 4 34.) He was not one of Abbott’s supervisors, but could serve in a supervisory

position over Abbott at fire or automobile scenes. (Pl. Resp. to Def. L.R. 56.1 38.) Abbott

'The parties dispute who paid any overtime Abbott incurred. The court does not view this dispute as
material.


party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Jd. at 324; Insolia
v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome
determinative under the governing law. Jnsolia, 216 F.3d at 598-99. Although a bare contention
that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp.,
200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to
the nonmoving party as well as view all reasonable inferences in that party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS STATED IN A LIGHT MOST FAVORABLE TO PLAINTIFF

Abbott is a female firefighter/paramedic who was employed by Public Safety Services,
Inc. (“PSSI”) from 1989 to 1992 and 1993 to May 18, 1995, when she resigned. (Def. L.R. 56.1
{{ 1, 53.) Westmont is a municipal corporation existing under the laws of the State of Illinois
and maintains a fire department. (Def. L.R. 56.1 2.) PSSI is a company that contracts licensed
paramedics to a large number of municipalities in the Chicago area. (Def. L.R. 56.1 J] 4-5.)
PSSI contracted licensed paramedics to the Westmont Fire Department from 1992 through 1998.
(Def. L.R. 56.16.) From 1993 through December 1994 Abboit was exclusively employed by
PSSI. (Def. L.R. 56.1 ] 8.) From January 1, 1995 through May 1, 1995, Westmont paid Abbott
an hourly wage for additional hours worked in her position of EMS Coordinator, which
supplemented her regular salary paid by PSSI. (Def. L.R. 56.199.) After May 1, 1995 Abbott
was once again paid exclusively by PSSI for her work. (Jd.)

No employee of Westmont had the authority to terminate Abbott’s employment

relationship with PSSI, although Abbott maintains that Westmont had the authority to


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
PAMELA ABBOTT, )
)
Plaintiff, y ;
)
vs. ) No. 02 € 2296 yew
) Judge Joan H. Lefkow NN ANS
VILLAGE OF WESTMONT, ILLINOIS, ) 99
) ev
Defendant. )
)

MEMORANDUM OPINION AND ORDER

In this action filed by plaintiff, Pamela Abbott (“Abbott”), alleging sexual harassment
(Count 1) and sex discrimination (Count II) under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000(€) et seq., defendant, Village of Westmont, Illinois (“Westmont”),
has moved under Rule 56, Fed. R. Civ. P., for summary judgment. The court has jurisdiction
over the claims pursuant to 28 U.S.C. § 1331 and 42 U.S.C § 2000e5-(f). For the reasons set
forth below, the motion is granted.

SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The
party seeking summary judgment bears the initial burden of proving there is no genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving

YP



much to pay them~a point would soon be reached at which the state was the de facto employer
and the local school districts merely its agents. That point was not reached here.” Jd. at 171-72.
See also, Kerr, 2002 WL 1477629, at *8 (concluding that no de facto or indirect theory was
present, noting that the “only control [defendant] exerted over Kerr was the control authorized by
the contract between [defendant] and [independent contractor].”).

Abbott has not put forth enough facts to show that Westmont so far controlled the
necessary aspects of her employment to establish that it was her de facto employer. While
Abbott claims that she was under the direct control and supervision of Westmont, she presents
nothing to suggest that this was anything other than the control authorized by the parties’
contract. In addition, as the court discussed above, there is no evidence that Westmont had the
power to hire or fire PSSI personnel. Abbott again argues that certain recommendations could be
made to PSS] by Westmont, but even if the court were to indulge such an argument, Abbott has
presented little evidence to actually show that Westmont “pulled the strings” on such
employment decisions. Indeed, Abbott testified that when she resigned, she submitted her
resignation to PSSI and never even notified Westmont. (Def. LR. 56.1 4 17-19.) These facts

make it clear that no de facto employment relationship exists.*

“The court notes that Abbott does not argue, and the court need not address, any aider or abetter or
“interference” theory of liability under Title VII. Hypothetically such a situation would take place when an
“employee of employer X . . . bring[s] a Title VII action against employer Y when Y is not his employer, but merely
someone whose discriminatory conduct interferes with his employment of employer X.” EEOC v. Foster Wheeler
Constructors, Inc., No. 98 C 1601, 1999 WL 515524, at *5 (N.D. Ill. July 14, 1999). The Seventh Circuit has
strongly implied, but not yet decided, that such a theory would not be allowed under federal antidiscrimination laws.
See State of Illinois, 69 F.3d at 169 (“We think it very doubtful that laws which forbid employers to discriminate
create a blanket liability to employees of other employers for interference with their employment relationships.”)
(emphasis in original). At least two cases in this court after State of Ilinois have disagreed about whether such a
theory exists. Compare Wheeler, 1999 WL 515524, at *10 (concluding that such an “interference” theory does
exist) with Kerr v. WGN Cont'l Broad. Co., 229 F. Supp. 2d 880, 887 (N.D. Ill. 2002) (holding that no
“interference” theory is available under Title VII).

12