                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2009

Beverly Prather v. Prudential Fox & Roa
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3374




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Beverly Prather v. Prudential Fox & Roa" (2009). 2009 Decisions. Paper 1166.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1166


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3374
                                      ___________

                                 BEVERLY PRATHER,
                                               Appellant
                                        vs.

                           PRUDENTIAL FOX & ROACH
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 07-cv-01264)
                       District Judge: Honorable Stewart Dalzell
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  June 16 2009
        Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges
                            Opinion filed: June 19, 2009

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM.

              Beverly Prather, pro se, appeals from the District Court’s grant of the

appellee’s motion for summary judgment and the denial of her own motion for summary

judgment. For the reasons that follow, we shall affirm the District Court’s order.



                                             1
              From June to November, 2005, Prather worked at Prudential Fox & Roach

(“PFR”), a real estate company, as a temporary administrative aide. She received the job

through a staffing service called OfficeTeam. In 2007, Prather filed a complaint in the

Eastern District of Pennsylvania asserting a claim under Title VII of the Civil Rights Act

of 1964. In particular, Prather alleged that she had been subject to sexual harassment in a

hostile work environment on several occasions on the PFR premises by an independent

contractor sales associate working for PFR. Both Prather and PFR filed motions for

summary judgment. PFR asserted that since Prather worked for an independent

contractor and not for PFR, she was not entitled to relief under Title VII. Prather argued

that there existed no genuine issue of material fact on her sexual harassment claim and

that she was entitled to judgment as a matter of law. On July 18, 2008, the District Court

issued an order granting PFR’s summary judgment motion and denying Prather’s motion.

A timely notice of appeal followed.

              Because summary judgment is appropriate only where there is no issue of

material fact and judgment is appropriate as a matter of law, our review of a grant of

summary judgment is plenary. Rosen v. Bezner, 996 F.2d 1527, 1530 (3d Cir. 1993)

(citing Jefferson Bank v. Progressive Cas. Ins. Co., 965 F.2d 1274, 1276 (3d Cir. 1992));

see Fed. R. Civ. P. 56(c). After reviewing the record, we will affirm the District Court’s

grant of summary judgment.

              To establish a sexual harassment claim under Title VII of the Civil Rights



                                             2
Act, Prather must first establish that she in fact was an employee of PFR, and not of

OfficeTeam, her temporary staffing agency. See Menkowitz v. Pottstown Mem’l Med.

Ctr., 154 F.3d 113, 127-28, n.5 (3d Cir. 1998) (stating that, as under Title VII,

“independent contractors are not employees within the meaning of the ADEA”) (Scirica,

J., concurring in part, dissenting in part) (citing Equal Employment Opportunity Comm’n

v. Zippo Mfg. Co., 713 F.2d 32 (3d Cir. 1983)). In order to determine whether a person is

an employee for purposes of Title VII, the common law of agency and the traditional

master-servant doctrine applies. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,

322-24 (1992).1 The court should consider:

                 the hiring party’s right to control the manner and means by
                 which the product is accomplished [;] . . . the skill required;
                 the source of the instrumentalities and tools; the location of
                 the work; the duration of the relationship between the parties;
                 whether the hiring party has the right to assign additional
                 projects to the hired party; the extent of the hired party’s
                 discretion over when and how long to work; the method of
                 payment; the hired party’s role in hiring and paying assistants;
                 whether the work is part of the regular business of the hiring
                 party; whether the hiring party is in business; the provision of
                 employee benefits; and the tax treatment of the hired party.

Id. at 323-24.

                 The District Court found that under Darden, Prather was not an employee of



   1
    As the District Court notes, Darden was an ERISA case, not a Title VII case.
However, the statutory language is identical. Furthermore, the Supreme Court has
applied Darden in other employment discrimination contexts where the statutory
definition of employee is the same as that in ERISA. See Clackamas Gastroenterology
Assocs. v. Wells, 538 U.S. 440, 444-45 (2003).

                                                3
PFR. After reviewing the record, we agree with that assessment. Prather sent her time

sheets to, and received her paycheck directly from, OfficeTeam; a W2 from 2005

identifies OfficeTeam’s parent company, Robert Half International, as Plaintiff’s

employer; OfficeTeam paid her social security taxes and worker’s compensation

insurance; Prather contacted OfficeTeam rather than PFR if she could not attend work or

had to see a doctor; PFR could only use Prather for services within the scope of the

agreement with OfficeTeam; PFR did not have the ability to terminate her employment;

and PFR was responsible to OfficeTeam for supervision of her work. The only evidence

Prather submitted was an application for a commission as a notary public in which she

listed PFR as her employer. However, as the District Court noted, this evidence is not

dispositive since it was Prather, and not PFR, who filled out the form. In conclusion, the

District Court properly granted PFR’s summary judgment motion because there existed

no genuine issue of material fact as to whether Prather was an employee of PFR. For the

same reason, the District Court properly denied Prather’s summary judgment motion.

              Finally, we will deny Prather’s “demand” for disclosure and restitution. To

the extent she seeks disclosure of the “amount of funds” this Court has received, we

remind her that all fees for appeals are payable to the District Court, not the Court of

Appeals. Her request for restitution of such funds is thus denied. Costs will be assessed

to the appellant. See Fed. R. App. P. 39(a)(2); LAR 39.




                                              4
