Beruflich Dokumente
Kultur Dokumente
No. 14-1601
KAREN E. GREENE,
Plaintiff - Appellant,
v.
HARRIS CORPORATION; HARL DAN PIERCE,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:13-cv-00190-MJG)
Argued:
Decided:
janitor
with
Eurest
Services,
Inc.
(Eurest).
Eurest
had
defendant,
maintained
doctrine.
also
Harris
was
Corporation
her
employer
(Harris),
under
which
joint
Greene
employment
as
required
by
the
relevant
anti-discrimination
laws.
I.
Before
janitorial
her
employment
services
for
with
Harris
Eurest,
for
14
Greene
years
had
under
provided
contracts
In
October
2008,
during
the
period
of
Greenes
Pierce
later informed Greene that her contract was being terminated for
budgetary
reasons.
Greenes
last
day
at
Harris
under
the
for
cleaning
services
under
which
Eurest
agreed
to
the
terms
of
the
Eurest-Harris
contract,
Harris
was
Harris
to the plaintiff.
Coleman v. Md. Court of Appeals, 626 F.3d
187, 189 (4th Cir. 2010).
Eurest
hired
Greene
as
full-time
Eurest
employee
on
her
first
day
at
Harris
office,
Pierce
saw
Greene
and
days
stating
later,
that
Pierce
Harris
had
placed
banned
telephone
Greene
from
call
the
to
Eurest,
premises
and
Greenes employment.
Greene filed this civil action 3 against Harris and Pierce
(the
defendants),
alleging:
(1)
discrimination
based
on
her
sexual
orientation
and
personal
appearance,
in
violation
of
Howard County, Maryland Code 12.208, I(a) & II(a)(1); 4 and (2)
a claim under Maryland law for tortious interference with her
business relationship with Eurest.
of
Civil
Procedure
12(b)(6).
The
court
concluded
that
II.
We
review
complaint
for
de
novo
failure
to
the
district
state
courts
claim
under
dismissal
Rule
of
12(b)(6).
Andon, LLC v. City of Newport News, Va., 813 F.3d 510, 513 (4th
Cir. 2016).
Id. at
Accordingly, to survive a
in
concluding
that
she
failed
to
allege
an
employment
Nevertheless,
Greene
contends
that
because
the
We disagree
relevant
here,
the
Howard
County
Code
(the
Code)
sexual
orientation
or
personal
appearance.
Howard
The Code
business,
who
has
five
or
more
full-time
or
part-time
such a person.
VII
may
be
considered
an
employee
of
more
than
one
Id. at 410.
Id. at 414.
Under
of
the
individual,
furnishes
the
(4)
possession
of
and
responsibility
over
the
individuals employment records, including payroll,
insurance, and taxes;
(5) the length of time during which the individual has
worked for the putative employer;
(6)
whether
the
putative
employer
provides
individual with formal or informal training;
(7) whether the individuals
regular employees duties;
duties
are
akin
the
to
Id. at
manager
employed
by
the
client,
8
we
concluded
that
the
assigned
Greene
exclusively
to
clean
Although
Harris
office,
Greenes complaint alleges that she worked there only for a few
hours
in
December
2010,
undermining
any
contention
that
she
(1)
Harris
provided
the
cleaning
supplies
for
Eurest
workers
provided
by
Eurest,
evaluate
Eurest
has
not
identified
in
her
9
complaint
how
the
cited
and
Under
its
effectiveness
the
terms
of
the
Eurest-Harris
on-site
supervisor
regularly
would
Eurest
janitorial
workers.
And,
of
contract,
review
notably,
Greene does not allege that she actually met with or received
any direction from any Harris supervisor during the few hours in
December
2010
that
she
was
present
at
Harris
facility.
the
contract
effectiveness
does
not
review
amount
to
provision
the
included
day-to-day
in
the
supervision
Greene also has not alleged that her duties were related to
Harris business product, or that she performed work that also
was
undertaken
by
Harris
employees.
Nor
has
she
plausibly
the
putative
employers
authority
10
to
hire
Our concern
and
fire
in
Butler
arose
from
the
client
relationship,
circumstances
namely,
that
of
the
the
staffing
client
could
agency-
terminate
In contrast,
factors
mechanical
set
forth
application,
but
in
Butler
instead
are
provide
not
a
intended
for
framework
to
the
present
case,
considering
all
the
facts
alleged
in
Eurest
and
Harris
is
not
analogous
to
the
staffing
employment
relationship
in
Butler.
Instead,
the
However,
employment
relationship
when
11
such
relationship
has
not
otherwise
been
pleaded.
Although
remedial
in
nature,
see
See, e.g.,
HCC
scheme
12.208,
I(d)
(limiting
the
Codes
remedial
to
Sys.
Servs.,
115
F.3d
256,
257-58
(4th
Cir.
1997)
complaint
Harris
earlier
decision,
in
March
2010,
to
next
her
argues
claim
that
the
under
district
Maryland
court
law
for
erred
in
tortious
12
We
state
interference
with
claim
a
under
business
Maryland
law
relationship,
for
tortious
plaintiff
must
allege:
(1) intentional and willful acts; (2) calculated to
cause damage to the plaintiffs in their lawful
business; (3) done with the unlawful purpose to cause
such damage and loss, without right or justifiable
cause on the part of the defendants (which constitutes
malice); and (4) actual damage and loss resulting.
Painters Mill Grille, LLC v. Brown, 716 F.3d 342, 354 (4th Cir.
2013) (quoting Alexander & Alexander Inc. v. B. Dixon Evander &
Assocs., Inc., 650 A.2d 260, 269 (Md. 1994)).
In presenting a
asserting
defamation
bears
the
burden
of
A plaintiff
proving
that
the
Batson v.
13
inference
that
Pierces
statement,
that
Greene
had
In her
effective
March
31,
2010,
and
that
Pierce
observing
her
at
the
office
on
December
6,
2010.
statement
in
December
2010,
regarding
Greenes
602
A.2d
at
1212.
Thus,
because
Greenes
tortious
we
conclude
that
the
district
court
properly
III.
For these reasons, we affirm the district courts judgment.
AFFIRMED
6
14
March
2010,
Dan
Pierce
terminated
Karen
Greenes
December
2010,
Greene
came
back
to
Harris
as
janitor
like
man.
To
justify
his
discriminatory
actions,
He claimed that
banned
from
Harris
premises.
That
was
false
as
this litigation.
The
two
questions
presently
before
us
are
these:
Did
Harris
terminated
in
was
joint
December
employer
2010?
And
of
did
Greene
Greene
when
she
allege
was
facts
I.
The
following
facts
are
derived
from
Greenes
34-page
of
the
Rule
12(b)(6)
motion,
all
of
the
For
factual
See
Wright v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015).
Greene
cleaned
the
Harris
office
in
Maryland,
without
of
outset,
and
in
December
comments
to
other
staff
appearance
Engineering.
and
manner
of
He
treated
2009,
members
dress.
Greene
made
about
rudely
overt
Ms.
J.A.
the
discriminatory
Greenes
75.
from
personal
According
to
J.A. 76.
J.A.
The staff members stated that Mr. Pierce did not respond,
J.A. 77.
J.A. 77.
That was
him
out
when
he
terminated
her
contract.
J.A.
80
17
required
Eurest
to
remove
any
janitor
is
not
qualified
to
Services as required.
not go well.
perform
or
is
not
performing
the
Things did
This resulted in
J.A. 83.
During
thoroughly
the
cleaned
time
the
Ms.
Greene
office,
and
worked
the
at
Harris,
she
Harris
employees
J.A. 86.
However, [w]hen Mr. Pierce saw Ms. Greene cleaning the office,
he
immediately
premises.
had
J.A. 86.
Harris
security
escort
her
from
the
To justify this
He
demanding
repeating
his
to
claims
know
that
what
is
Greene
going
was
on,
the
J.A.
woman
86,
and
whom
we
dismissed because she was charging [too much], and the woman
18
who
[had]
inappropriately
obscenities
omitted).
at
[him].
searched
[his]
J.A.
(internal
86
office
and
screamed
quotation
marks
Harris had prohibited Ms. Greene from the premises and Eurest
had to immediately remove her from working at the office.
J.A.
87.
with
Eurest,
in
turn,
presumed
Ms.
Greene
had
issues
J.A. 88.
Because
Pierces
false
employed at Harris.
J.A. 88.
information,
Greene
would
still
be
J.A. 88. 2
II.
Indus. of Am., Inc., 793 F.3d 404, 409 (4th Cir. 2015).
It
19
co-determine
those
matters
conditions of employment.
omitted).
could
governing
the
essential
terms
and
avoid
entity.
Title
VII
liability
by
hiding
behind
another
Id. at 415.
in
this
circuit,
specifically
employment
control
aims
to
relationship
over
an
are dispositive.
to
formulated
pierce
to
the
Id. at 415.
and
fire
nine-factor
legal
while
Id. at 414.
hire
determine
employee,
formalities entirely.
authority
and
test
formalities
of
that
of
the
loci
not
discounting
an
effective
those
the
individual;
(2)
day-to-day
Id.
A.
Under
the
Harris/Eurest
contract,
Eurest
was
responsible
assigned
to
Harris
worksite.
Harris,
however,
retained more than a mere modicum of control over the hiring and
firing of the individual janitors, as well as over their day-today activities.
provided that:
20
84-85.
janitor.
Harris
provided
an
on-site
supervisor
for
the
regard
to
Greene
in
J.A. 85.
particular,
she
was
assigned
J.A. 86.
21
J.A. 86.
of
Greene
when
she
was
terminated
in
December.
in
Pierces
March
discriminatory
(which
he
animus
resurrected
to
and
justify
false
her
inquiry.
the]
successor
cleaning
service
for
Harris,
J.A.
82,
he
could
evad[e]
liability
[for
his
bigotry]
by
hiding
According to
janitor
for
any
discriminatory
reason
race,
color,
is
wholly
inconsistent
with
the
That premise, I
remedial
principles
justified
because
the
Harris/Eurest
contract
is
mere
Although
If anything,
we
inquiry
recognized
the
fact-specific
23
nature
of
the
and
F.3d
at
413-14;
id.
at
414
(noting
that
See Butler,
an
employer-
of
the
working
relationship
between
the
parties
(quoting Hunt v. State of Mo., Dept of Corr., 297 F.3d 735, 741
(8th Cir. 2002)); id. at 415 (noting that no one factor is
determinative, and the consideration of factors must relate to
the
particular
relationship
under
consideration
(quoting
Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir.
1997)).
client
for
janitorial
services
would
allow
for
the
Greenes
somewhere
considered
allegations
between
in
the
Butler
place
staffing
and
the
At a minimum, I believe
Harris/Eurest
agency-client
simple
contract
contract
relationship
for
we
janitorial
And because
On
can
best
be
assessed
after
factual
development.
Id.
the
pleadings;
otherwise,
plaintiffs
should
be
given
an
be
allowed
another entity.
to
avoid
liability
by
hiding
behind
Somehow, Greene is
faulted for not having worked longer in December and for not
having established more evidence of supervision and control by
Harris.
You lose your job because of how you look, where you come from,
or
for
national
some
other
origin,
orientation
and
immutable
religion,
the
way
characteristic.
sex,
you
or,
dress
25
as
mean
in
this
Race,
color,
case,
sexual
everything;
and
job
case.
Accordingly,
would
vacate
the
district
courts
claim
for
tortious
interference
with
her
economic
recognizes
tort
action
for
maliciously
or
Alexander
& Alexander Inc. v. B. Dixon Evander & Assocs., Inc., 650 A.2d
260,
268
(Md.
1994)
(internal
quotation
marks
omitted).
To
v.
Brown,
716
F.3d
342,
354
(4th
Cir.
2013)
(quoting
with
economic
is
or
malicious
interference
by
interference
conduct
26
that
is
independently
wrongful
or
unlawful,
quite
apart
from
common
defamation,
law
injurious
torts
effect
on
the
and
falsehood
its
violence
or
other
or
intimidation,
fraud,
violation
of
Alexander, 650
In addition,
malice
interference.
is
the
primary
factor
that
motivates
the
Id.
B.
terminated
orientation
her
contract
(Lesbian)
offensive to him.
and
in
March
2010
appearance/manner
Greenes
of
sexual
dress
were
J.A. 100.
that
supported
by
were
calculated
legitimate
to
justify
employment
his
reasons.
action
as
one
Pierce
falsely
informed Moodie that Greene was the woman that he had dismissed
in March 2010 for budgetary reasons and repeated his false claim
27
that
Greene
had
inappropriately
screamed
obscenities
(internal
quotation
at
[him]
marks
searched
before
[his]
she
omitted).
office
left.
Pierce
J.A.
then
and
98
falsely
the
premises,
J.A.
70,
leading
Eurest
to
reasonably
believe that Greene had issues with Harris when she cleaned for
them directly, J.A. 100.
Harris
and
Eurest
gave
Harris
the
right
to
remove
Eurest
J.A. 70.
at
minimum
implied
that
Greene
had
done
something
Eurest
December.
1983)
(A
fitness
immediately
remove
her
from
the
position
in
for
the
that
proper
adversely
conduct
of
affect[s]
his
[an
business
employees]
.
[is]
that
the
judgment
of
28
those
firing
the
person
was
contractual
right
to
terminate
Greene
for
cause,
J.A. 84.
that
Pierce,
motivated
by
his
discriminatory
animus
29
C.
The majority is of the opinion that Greenes claim must be
dismissed under Rule 12(b)(6) because Greene acknowledged in her
complaint that Harris had terminated her original contract in
March and that Pierce had Harris security escort her from the
premises
upon
seeing
acknowledgments,
the
her
in
December.
majority
appears
Building
to
draw
upon
the
these
factual
plainly
that
it
had
alleged
to
that
Pierce
immediately
falsely
remove
Ms.
informed
Greene
from
her and her contract [in March], Mr. Pierce asked [her] to stay
and clean another month until he obtained a successor cleaning
service,
and
[n]either
Mr.
Pierce
nor
anyone
else
at
the
[Harris] office ever told Ms. Greene she was barred from the
premises.
J.A. 99.
For the reasons set forth above, I also disagree with the
majoritys view that Pierces representation to Eurest that
Greene had been banned or barred from Harris premises after
her earlier stint with them, even if false, was not defamatory.
Such a statement, from one employer to another, could hardly
have any connotation other than that Greene was not worthy of
enjoying a good opinion or reputation as an employee.
31