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Adams v. C3 Pipeline Construction Inc.

United States District Court, D. New Mexico

May 23, 2019

JESSICA ADAMS, Plaintiff,
v.
C3 PIPELINE CONSTRUCTION INC.; ALPHA CRUDE CONNECTOR, LLC; PLAINS ALL AMERICAN PIPELINE, LP as Successor in Interest to Alpha Crude Connector, LLC; PLAINS ALL AMERICAN GP, LLC as Successor in Interest to Alpha Crude Connector, LLC; PLAINS GP, LLC as Successor in Interest to Alpha Crude Connector, LLC; and PLAINS PIPELINE, LP, as Successor in Interest to Alpha Crude Connector, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

         This 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.

         I. Procedural History and Material Facts

         This 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 Defendants).

         C3 and 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).

         On 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.

         Adams 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.

         The 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[1], 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.

         Adams 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

         II. Standard of Review

         Summary 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.

         Rule 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).

         III. Discussion

         The 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.

         Adams 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 discovery.

         Because 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) affidavit.

         1. Joint Employer Status under Title VII

         Title 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. § 2000e-3(a)).

         Adams 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).

         Adams, 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 1218).

         “Most 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).

         Considering 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).

         The 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.

         a. Authority to Terminate

         In 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.

         Considering 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 this factor.

         Even 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.

         The 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.

         b. Paymen ...


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