United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendants Alpha Crude
Connector, LLC, Plains All American Pipeline, LP, Plains All
American GP, LLC, Plains GP, LLC, and Plains Pipeline,
LP's (collectively, “the Plains Defendants”)
Motion for Summary Judgment (Motion), filed October 10, 2018.
(Doc. 6). Plaintiff Jessica Adams filed her response in
opposition on November 16, 2018, and, in the alternative, a
Federal Rule of Civil Procedure 56(d) affidavit stating that
Adams lacks sufficient facts to adequately respond to the
Motion and seeking discovery. (Doc. 13). The Plains
Defendants filed their Reply on December 3, 2018. (Doc. 14).
Having considered the briefing, the record, and the
applicable law, the Court grants the Plains Defendants'
Motion for Summary Judgment (Doc. 6), enters judgment in
favor of the Plains Defendants, and dismisses all claims
against the Plains Defendants with prejudice.
Procedural History and Material Facts
litigation results from alleged sexual harassment and other
intentional torts directed at Adams by Mike Carrithers
(Carrithers), Danny Robertson (Robertson), and Craig Arnault
(Arnault) between fall 2015 and June 2016, and again between
August and September 2016. (Doc. 1-1). Defendant C3 Pipeline
Construction Inc. (C3) employed Adams as a pipelayer in the
northern Delaware Basin in southeastern New Mexico. The
Plains Defendants contracted with C3 as part of the Plains
Defendants' enhancement of the Alpha Crude Connector to
increase its barrels-per-day capacity. (Doc. 7) at 3
(Undisputed Material Fact (UMF) 5); (Doc. 13) at 6 (not
contesting UMF 5). C3 also employed Carrithers, Robertson,
and Arnault, who were, at various times, Adams'
supervisors. (Doc. 1-1) at ¶ 14. C3 was one of multiple
subcontractors contracted by the Plains Defendants, then
operating as Alpha Crude Connector, LLC, to work on the
515-mile Alpha Crude Connector pipeline enhancement project.
(Doc. 7) at 4 (UMFs 10, 11); (Doc. 13) at 7 (not contesting
UMF 11, agreeing C3 was a subcontractor for the Plains
the Plains Defendants used a Master Services Agreement to
govern their relationship. (Doc. 7-4). The Plains Defendants
assigned tasks to C3 and other subcontractors, and contracted
with a third-party group of inspectors to ensure the work was
done to the Plains Defendants' specifications. (Doc. 7)
at 5 (UMF 25). However, the Plains Defendants did not pay any
salary, wages, leave, or fringe benefits to employees of the
subcontractors. (Doc. 7) at 5 (UMF 22). Nor did the Plains
Defendants specify work hours, leave, or the conditions of
employment for the subcontractors' employees, meaning
that the Plains Defendants did not have the right to hire or
fire those employees. (Id.) at 5 (UMF 23).
August 30, 2018, Adams filed Plaintiff's Original
Complaint for Sexual Harassment, Common Law Tort Claims, and
Quid Pro Quo Treatment in the Workplace (Complaint) in the
First Judicial District Court for the State of New Mexico,
D-101-CV-2018-02553. (Doc. 1-1). Adams brought claims against
the Plains Defendants and C3 for discrimination and
retaliatory employment practices prohibited by Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e-3(a) (Title
VII), and the New Mexico Human Rights Act, NMSA 1978 §
28-1-7 (NMHRA). (Doc. 1-1) at ¶¶ 17, 21. She also
brought state law claims against the Plains Defendants and C3
for battery; slander and libel per se; intentional infliction
of emotional distress; negligence; gross negligence;
negligent hiring, training, retention, and supervision; and
gross negligence of the employers. (Id.) at
¶¶ 18-20, 22, 23, 26-28.
invokes the doctrines of vicarious liability, respondeat
superior, and ratification to claim the Plains
Defendants are liable for Carrithers's, Robertson's,
and Arnault's conduct. (Doc. 1-1) at ¶¶ 24, 25.
Adams also invokes the joint employer doctrine to claim that
the Plains Defendants were her co-employer, along with C3,
and are liable to Adams on her employment claims.
(Id.) at ¶¶ 29-32. Put another way, Adams
contends that C3 did not operate as an independent contractor
for the Plains Defendants and that, in fact, Adams,
Carrithers, Robertson, and Arnault were employed by the
Plains Defendants due to the degree of control the Plains
Defendants exercised over their work.
Plains Defendants timely removed the case to federal court on
October 3, 2018, based on federal question jurisdiction.
(Doc. 1). On October 10, 2018, the Plains Defendants filed
their Answer to Adams' Complaint. (Doc. 4).
Contemporaneously to their Answer, the Plains Defendants
filed their Motion, seeking summary judgment on all claims
and asserting that C3, Carrithers, Robertson, Arnault, and
Adams were, at all times, independent contractors and/or
vendors for whom the Plains Defendants cannot be held liable.
(Doc. 6). The Plains Defendants attached their Master
Services Agreement with C3 (Doc. 7-4), as well as affidavits
from Kenneth Benton, Vice President of Engineering for
Frontier Energy Services, LLC, who was responsible for
overseeing the overall construction of the pipeline project
at issue and managing the subcontractors (Doc. 7-1); Jason
Pottridge, formerly the Construction Manager for Frontier
Energy Services, LLC, and a contract construction manager and
inspector for Renegade Gas Services, LLC, another
subcontractor on the pipeline project (Doc. 7-2); and Patrick
James “P.J.” Radtke, a contract construction
manager on the project who provided work orders and
construction specifications to other subcontractors (Doc.
7-3). All three affiants state that neither the Plains
Defendants nor the independent contractor inspectors or
construction managers had the authority to manage, supervise,
or direct the subcontractors' employees. (Doc. 7-1) at
¶¶ 20, 22-24, 29, 35-39; (Doc. 7-2) at ¶¶
16-18, 24-28; (Doc. 7-3) at ¶¶ 15, 16-18, 24.
opposes the Motion and submitted her own affidavit, stating
the harassment at issue took place on the jobsite, that she
“repeatedly alerted various representatives and
management of” the Plains Defendants about the
harassment, including “Casey, ” “Dave,
” “Tyler, ” and “Blake.” (Doc.
13) at 18, ¶¶ 9-10. Adams further states that
“[n]o one at [the Plains Defendants] did anything to
stop the abuse” and instead “they” told her
to get back to work. (Id.) at 18, ¶ 11.
Finally, Adams alleges that the Plains Defendants
“acted like they were my bosses by often giving me
specific instructions on how and when to do my job.”
(Id.) at 18, ¶ 13. Alternatively, Adams
submitted a Rule 56(d) affidavit from her attorney stating
that allowing discovery would give Adams “the
opportunity to gather additional evidence to further develop
genuine issues of material fact” and that she
“would propound written discovery and set depositions
for multiple topics, ” to include the relationships
between the defendants, actions of the defendants in
determining the terms and conditions of Adams' employment
and general employment on the jobsite, ownership of the
jobsite, defendants' knowledge of Adams' complaints,
and defendants' actions or inaction after learning of
those complaints. (Doc. 13) at
Standard of Review
judgment is appropriate if there is no genuine dispute as to
a material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). “When applying this
standard, [the Court] view[s] the evidence and draw[s]
reasonable inferences therefrom in the light most favorable
to the nonmoving party.” Scull v. New Mexico,
236 F.3d 588, 595 (10th Cir. 2000) (internal quotation marks
omitted). The movant bears the initial burden of showing the
absence of a genuine issue of material fact, then the burden
shifts to the non-movant to provide evidence of a genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986); Bacchus Indus., Inc. v. Arvin
Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). A fact
is “material” if, under the governing law, it
could influence the outcome of the lawsuit, and
“genuine” if a reasonable jury could return a
verdict for the non-movant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Hardy v. S.F.
Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir.
1999); Kaul v. Stephan, 83 F.3d 1208, 1212 (10th
Cir. 1996) (citation omitted). A party cannot avoid summary
judgment simply by resting upon the mere allegations or
denials of its pleadings. Bacchus Indus., Inc., 939
F.2d at 891.
56(d) allows for limited discovery in the face of a motion
for summary judgment. Courts treat liberally the question of
whether to grant a Rule 56(d) application under the principle
that summary judgment should be denied where the nonmoving
party has not had the opportunity to discover facts at the
heart of her opposition and where the application is not
“dilatory or lacking in merit.” Price v. W.
Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000). More
specifically, narrow discovery may be permissible when the
claim turns wholly or in part on a determinative factual
question regarding which the court requires more facts to
answer. See Herrera v. Santa Fe Pub. Sch., 2012 WL
6846393, at *6 (D.N.M. 2012); Todd v. Montoya, 2011
WL 5238900, at *5 (D.N.M. 2011). A Rule 56(d) affidavit must
“explain why facts precluding summary judgment cannot
be presented, ” including an identification of probable
facts that are not available and the steps taken to obtain
those facts. Comm. for the First Amendment v.
Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992).
Plains Defendants argue that they are not liable for any acts
or omissions of C3, Carrithers, Robertson, or Arnault. As to
Adams' state law claims (i.e., battery; slander
and libel; intentional infliction of emotional distress;
negligence; gross negligence; negligent hiring, training, and
supervision; and grossly negligent hiring, training, and
supervision) the Plains Defendants contend that they cannot
be held vicariously liable because C3 and its employees were
independent contractors - and not employees - of the Plains
Defendants. As to Adams' Title VII and NMHRA claims
(retaliation, discrimination, and quid pro quo
sexual harassment), the Plains Defendants assert that they
cannot be held liable because they were not Adams'
employer or joint employer.
argues that summary judgment is inappropriate because the
Plains Defendants operated as an employer of all C3
employees, including Carrithers, Robertson, Arnault, and
Adams. Adams also asserts a new claim for premises liability
against the Plains Defendants, which the Court construes as a
motion to amend the Complaint. Alternatively, Adams requests
that the Court delay ruling on or deny the Plains
Defendants' Motion and grant Adams time to conduct
Adams submitted a substantive response to the Plains
Defendants' Motion as well as a Rule 56(d) affidavit, the
Court first addresses the substantive Motion and response,
and then considers the sufficiency of Adams' Rule 56(d)
Joint Employer Status under Title VII
VII “makes it unlawful for an ‘employer' to
‘discriminate against any individual with respect to
[her] compensation, terms, conditions, or privileges of
employment' on account of sex.” Knitter v.
Corvias Military Living, LLC, 758 F.3d 1214, 1225 (10th
Cir. 2014) (quoting 42 U.S.C. § 2000e-2(a)(1)).
Similarly, an employer “may not ‘discriminate
against any of his [or her] employees . . . because [the
employee] has opposed any [unlawful employment]
practice.'” Id. (quoting 42 U.S.C. §
bears the initial burden of proving the Plains Defendants
were her employer before proceeding with a Title VII claim.
Id.; see also Lockard v. Pizza Hut, Inc.,
162 F.3d 1062, 1069 (10th Cir. 1998). Depending on the
circumstances, the Tenth Circuit chooses among three tests
when determining whether a defendant is an
“employer”: (1) the hybrid test, (2) the joint
employer test, and (3) the single employer test.
Knitter, 758 F.3d at 1225-26. The hybrid test
applies when distinguishing between an employee and an
independent contractor. Id. at 1226; see also
Oestman v. Nat'l Farmers Union Ins. Co., 958 F.2d
303, 305 (10th Cir. 1992). The joint employer test is
appropriate “to use when an employee of one entity
seeks to hold another entity liable as an employer.”
Knitter, 758 F.3d at 1226; see also Bristol v.
Bd. of Cty. Comm'rs, 312 F.3d 1213, 1218 (10th Cir.
2002) (en banc). Finally, the single employer test applies
when a plaintiff employed by one entity seeks “to hold
another entity liable by arguing that the two entities
effectively constitute a single employer.”
Knitter, 758 F.3d at 1227 (quoting Bristol,
312 F.3d at 1218).
appropriately, invoked the joint employer test and admits
that she was employed by C3, but seeks to hold the Plains
Defendants liable as her employer. Under this test,
“two entities are considered joint employers if they
‘share or co-determine those matters governing the
essential terms and conditions of employment.'”
Id. at 1226 (quoting Bristol, 312 F.3d at
important to control over the terms and conditions of an
employment relationship is the right to terminate it under
certain circumstances . . . .” Bristol, 312
F.3d at 1219. However, additional factors courts consider
when evaluating control under the joint employer test
“include the ability to promulgate work rules and
assignments, and set conditions of employment, including
compensation, benefits, and hours; . . . day-to-day
supervision of employees, including employee discipline; and
. . . control of employee records, including payroll,
insurances, taxes and the like.” Knitter, 758
F.3d at 1226 (quotation omitted).
the facts in the light most favorable to Adams, no reasonable
jury could find that the Plains Defendants were Adams'
employer. The Plains Defendants have shown a lack of evidence
from which a reasonable jury could conclude that the Plains
Defendants and C3 “share[d] or codetermine[d] those
matters governing the essential terms and conditions of
[Adams'] employment.” Bristol, 312 F.3d at
1218; see also Lockard, 162 F.3d at 1069 (stating
plaintiff has burden to prove defendant was her employer).
following shows that the Plains Defendants (1) did not have
the authority to terminate Adams' employment; (2) did not
pay Adams directly; and (3) did not have the authority to
supervise and discipline Adams beyond the confines of a
vendor-client relationship. Taking these factors together,
the Court concludes that Adams was a vendor or the employee
of a vendor providing a service rather than an employee of
the Plains Defendants.
Authority to Terminate
determining whether the Plains Defendants had the authority
to terminate Adams' employment, the Court considers the
affidavits of Kenneth Benton, who oversaw the overall
construction of the 515-mile pipeline project on behalf of
the Plains Defendants (Doc. 7-1); Jason Pottridge, who worked
as a contract inspector, contract construction manager, and
ultimately a construction manager for the Plains Defendants
on the pipeline project (Doc. 7-2); Patrick James
“P.J.” Radtke, an independent contractor who
worked as a construction manager on the project (Doc. 7-3);
and Adams (Doc. 13) at 17-19. Benton averred that the Plains
Defendants “had no authority or right to hire, retain,
fire, discipline, or otherwise manage the employees of the
pipeline contractors, ” including C3. (Doc. 7-1) at
¶¶ 39-40. Pottridge stated that, as a contract
inspector on the project, he “had no ability to hire or
fire the employees of the pipeline contractors, ”
including C3. (Doc. 7-2) at ¶ 17. Similarly, Radtke
stated as an independent contractor construction manager, he
“had no ability to hire or fire the employees of the
pipeline contractors, ” including C3. (Doc. 7-3) at
¶ 17. Adams' affidavit does not contradict these
statements. Instead, Adams states that the Plains Defendants
- without specifying who - “acted like they were my
bosses.” (Doc. 13) at 18, ¶ 13. Adams made no
other assertions with respect to the Plains Defendants'
ability to fire her.
these affidavits together, the Court concludes that
Adams' sole, conclusory statement regarding the behavior
of the Plains Defendants as a whole, without any information
regarding an ability to terminate her employment, is too
vague to raise more than a scintilla of doubt with respect to
though the ability to terminate may not be the sole factor to
consider under the joint employer test, it is particularly
compelling in this case and weighs heavily against Adams.
Notably, Adams does not assert any facts or make any argument
regarding how the Plains Defendants were able to fire her.
No. reasonable jury could find the Plains Defendants had the
ability to terminate Adams' employment.
Court finds no genuine dispute that control over the most
important condition of Adams' employment under the joint
employer test-the ability to terminate her employment- did
not lay with the Plains Defendants. Indeed, the Plains
Defendants did not share in this power as a joint employer.