Security Guard’s Hostile Work Environment / Sexual Harassment Claim Dismissed Against Federal Government; It Was Not Plaintiff’s “Joint Employer”

In Dwyer v. Timothy O. Horne, as Acting Administrator of the General Services Administration, 12-cv-1176, 2017 WL 5197234 (E.D.N.Y. Nov. 9, 2017), the court granted defendant’s motion for summary judgment on plaintiff’s sex-based hostile work environment and retaliation claims under Title VII of the Civil Rights Act of 1964. This decision provides an overview of the “joint employment” doctrine under Title VII.

Plaintiff worked as a security guard at a federal building in Manhattan. While the building was managed by the General Services Administration (GSA), plaintiff worked for a private security company (G4S).

While defendant conceded that there were factual disputes as to whether plaintiff was subjected to a sex-based hostile work environment and retaliation, the court dismissed the case because plaintiff could not show that GSA was plaintiff’s “joint employer” along with G4S.

The court provides us with the following summary of the law (paragraphing modified):

Where a plaintiff is not a direct employee of a defendant, a defendant may still be liable under Title VII under one of several theories. In Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 197 (2d Cir. 2005), the Circuit stated that, in the context of Title VII, there are two “recognized doctrines that enable an employee in certain circumstances to assert liability against an entity that is not formally his or her employer.” Arculeo presented those doctrines as (1) the “single employer” or “single integrated employer” doctrine; and (2) the “joint employer” doctrine. Id. “A ‘single employer’ situation exists ‘where two nominally separate entities are actually part of a single integrated enterprise’ … In a ‘joint employer’ relationship, in contrast, ‘there is no single integrated enterprise. A conclusion that employers are ‘joint assumes that they are separate legal entities, but that they … handle certain aspects of their employer-employee relationship jointly.’ ” Id. at 198 (quoting Clinton’s Ditch Cooperative Co. v. NLRB, 778 F.2d 132 (2d Cir. 1985)). Relying on Arculeo, plaintiff primarily argues that GSA and G4S were her joint employers. (Pl’s Mem. at 9-11.)9
In Shifflet, the Circuit stated that it has “not yet ‘fully described a test for what constitutes joint employment in the context of Title VII.’ ” Shifflet v. Scores Holding Co., Inc., 601 Fed. Appx. 28, 30 (2d Cir. 2015) (quoting Arculeo, 425 F.3d at 199 n.7). The Circuit did, however, note that courts have looked to “commonality of hiring, firing, discipline, pay, insurance, records, and supervision” in determining whether entities constitute joint employers.

Applying the law, the court explained:

Even if GSA, via Sarnecky, requested that plaintiff be transferred, and even if its request was acted upon by G4S, that is not in and of itself sufficient to show a commonality of discipline and/or supervision between G4S and GSA. See, e.g., Gonzalez v. Allied Barton Sec. Servs., 2010 WL 3766964 at *4 (S.D.N.Y. Sept. 7, 2010), report and recommendation adopted 2010 WL 3766954 (S.D.N.Y. Sept. 27, 2010) (While DOT was permitted to request that a guard not be assigned to its sites, AlliedBarton made the final decision about all transfers. DOT’S ability to request reassignment did not constitute an employer relationship); McCray v. City University of New York, 2011 WL 1197467 at *4 (“that a government entity requests that a security guard no longer be assigned to its work sites does not in itself give rise to an employer-employee relationship”); Cf. Jiggetts v. New York City Dep’t of Citywide Admin. Servs., 2012 WL 231566, at *7 (S.D.N.Y. Jan. 6, 2012), report and recommendation adopted, 2012 WL 614310 (S.D.N.Y. Feb. 27, 2012) (declining to dismiss on joint employment grounds where plaintiff alleged that the defendant agency had the right to interview security guards, reject proposed guards, request retraining or replacement of guards, and demand removal of guards). The contract and Statement of Work make it clear that GSA has no direct role in supervising, hiring, disciplining, or firing PSOs, and while Sarnecky made a request to G4S, and G4S complied, plaintiff puts forth no evidence to dispute defendant’s assertions that G4S had final say over plaintiff’s employment. No matter how forceful Sarnecky’s request was, G4S retained final authority over whether plaintiff would be transferred and what hours she would work.


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