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Kurdyla v. Pinkerton Security


October 13, 2000


The opinion of the court was delivered by: Cooper, District Judge



Attorneys for Defendants Exxon Research and Daryl Swiniski This matter comes before the Court on the motion of defendants Exxon Research *fn1 and Daryl Swiniski *fn2 under Federal Rule of Civil Procedure Rule 12(b)(6) to dismiss Counts I through IV of plaintiff Christine Kurdyla's Second Amended Complaint insofar as the counts contain claims against Exxon Research and Daryl Swiniski. Plaintiff asserts claims against Pinkerton Security ("Pinkerton"), Exxon Research, Daryl Swiniski, and unknown employees of Pinkerton and Exxon Research under the New Jersey Law Against Discrimination ("NJLAD"). Exxon Research and Daryl Swiniski seek the dismissal of these claims on the grounds that plaintiff is not an employee of Exxon Research and therefore is not protected by the NJLAD. For the reasons expressed below, this motion to dismiss is denied.


Christine Kurdyla began working for "Exxon/Pinkerton" on October 1, 1995 as a "life safety operator,"(Second Am. Compl. Count I, ¶ 3.), or security guard. *fn3 (Pl.'s Br. in Opp. at 4.) While working as a guard, plaintiff allegedly suffered from sexual harassment, (Second Amended Complaint Counts I-III), gender discrimination, (id. Count IV), and a Federal Family and Medical Leave Act violation, (id. Count V). "After working at Exxon/Pinkerton for two (2) years," plaintiff was terminated. (Id. Count IV, ¶ 2.)

Christine Kurdyla originally filed her action in the Superior Court of New Jersey, Law Division, Somerset County on or about October 9, 1999. (Not. of Removal ¶ 1.) In her Second Amended Complaint filed on or about April 19, 2000, Christine Kurdyla for the first time asserted a claim under federal law, specifically the Federal Family and Medical Leave Act. *fn4 (Id. ¶ 3). In response, Pinkerton, with the consent of the attorney for Exxon Research and Daryl Swiniski, filed a Notice of Removal with this Court on or about May 17, 2000.

Plaintiff's Second Amended Complaint contains a number of allegations concerning her relationship with Exxon Research. Plaintiff worked at "Exxon/Pinkerton as a life safety operator." (Second Am. Compl. Count I, ¶ 3.) Daryl Swiniski and the unknown defendants are also "employees of Pinkerton & Exxon." (Id. ¶ 6.) Plaintiff further alleges that Exxon Research is "the ultimate parent corporation of Pinkerton." (Id. ¶ 2.) She asserts that "[u]pon information and belief, Exxon maintains control over the operations, business and practices of Pinkerton." (Id.) Both Pinkerton and Exxon Research are allegedly "employers" as defined by the NJLAD. (Id. ¶¶ 4-5.)

Exxon Research and Daryl Swiniski argue that dismissal is required because Christine Kurdyla is not an employee of Exxon Research and therefore cannot sue the company under the NJLAD. They contend that the NJLAD only protects employees and not independent contractors. (Def.'s Br. in Supp. at 11.) Relying almost exclusively on materials other than the pleadings, (id. at 13-16), defendants argue that "[p]laintiff simply cannot set forth any set of facts that would render her an employee" of Exxon Research or Swiniski, (id. at 18). Therefore, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be granted because plaintiff can never make out a claim entitling her to relief under the NJLAD. (Id.)

Also relying heavily on materials outside of the pleadings, (Pl.'s Br. in Opp. at 8-14), Christine Kurdyla responds that: (1) the evidence to date at least establishes "a genuine material issue" of fact on the question of whether an employer-employee relationship existed between herself and Exxon Research and Daryl Swiniski,(id. at 13.); and (2), because she has yet to begin discovery, granting this motion would be inappropriate considering the likelihood that she may uncover even more materials, such as insurance, tax, and health benefits evidence, indicating the existence of an employer-employee relationship, *fn5 (Id. at 1-2, 11-12).


A. Rule 12(b)(6) Motions to Dismiss and Reference to Mattters Outside the Pleadings

When confronted with a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, a court generally may only consider allegations in the complaint, exhibits attached to the complaint, and public records. See, e.g., Beverly Enters., Inc. v. Trump, 182 F.3d 183, 190 n.3 (1999), cert. denied, 120 S. Ct. 795 (2000); Childs v. Meadowlands Basketball Assocs., 954 F. Supp. 994, 997 (D.N.J. 1997) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)). A court has discretion to convert a Rule 12(b)(6) motion into a motion for summary judgment by considering materials extrinsic to the pleadings. *fn6 See Fed. R. Civ. Pro. 12(b); see also Childs, 954 F. Supp. at 997 (citing Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992)). A court should not convert a motion, however, when little or no discovery has occurred. See, e.g., id.; Brennan v. National Tel. Directory Corp., 850 F. Supp. 331, 335-36 (E.D. Pa. 1994) (citations omitted).

Christine Kurdyla clearly asserts in her brief that she "has not even begun the discovery process," and she further claims that she may "uncover additional and various insurance, tax and health benefit issues" indicating the existence of an employer-employee relationship between herself, Exxon Research, and Daryl Swiniski. (Pl.'s Br. in Opp. at 11.) While certain facts do support a conversion of this motion to a motion for summary judgment, *fn7 this case is at the beginning of the discovery process. Even the parties' use of materials other than the pleadings does not mandate a conversion. See, e.g., Childs, 954 F. Supp. at 997 (refusing to convert motion to dismiss to motion for summary judgment even though both parties submitted affidavits); Morris v. Azzi, 866 F. Supp. 149, 149 (D.N.J. 1994); Brennan, 850 F. Supp. at 335-36. Therefore, the Court will not convert the motion to a motion for summary judgment, and it will not consider the additional materials submitted by the parties. *fn8

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court "accept[s] as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view[s] them in the light most favorable to the nonmoving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Dismissal is inappropriate unless it clearly appears that plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). In order to survive a Rule 12(b)(6) motion, "it is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim." Morris, 866 F. Supp. at 152 (citing Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977)).


The NJLAD protects only employees and does not cover independent contractors. Carney v. Dexter Shoe Co., 701 F. Supp. 1093, 1101-1102 (D.N.J. 1988); Pukowsky v. Caruso, 312 N.J. Super. 171, 178-80, 711 A.2d 398, 402-03 (App. Div. 1998). The NJLAD defines the terms "employer" *fn9 and "employee" *fn10 generally without much guidance on how to resolve this issue. In Pukowsky v. Caruso, 312 N.J. Super. 171, 178-80, 711 A.2d 398, 402-03 (App. Div. 1998), the Appellate Division of the New Jersey Superior Court determined, based largely on a review of the judicial interpretation of comparable federal and state anti-discrimination enactments, that the NJLAD does not protect independent contractors. Pukowsky, 312 N.J. Super. at 178-80, 711 A.2d at 178-80. *fn11 This decision affirmed the earlier view of the federal district court in Carney v. Dexter Shoe Co., 701 F. Supp. 1093, 1101-1102 (D.N.J. 1988). The Carney court concluded that "[b]ecause the proscriptions [of the NJLAD] apply to an `employer,' -- as they do under the terms of ADEA -- it is inescapable that the `individual' on the receiving end of the employer's conduct must be an employee or prospective employee in order for the statute to apply." Id. at 1102. Like the Appellate Division, the court bolstered its conclusion by examining case law on the federal Age Discrimination in Employment Act and the New York Human Rights Law. Id. *fn12

Though the NJLAD requires a distinction between employees and independent contractors, the proper basis for this distinction is unsettled. Tests have been developed to characterize individuals as employees and independent contractors under a variety of statutes. See, e.g., Pelliccioni v. Schuyler Packing Co., 140 N.J. Super. 190, 196-202, 356 A.2d 4, 7-10 (App. Div. 1976) (Federal Employers' Liability Act); Blessing v. T. Shriver & Co., 94 N.J. Super 426, 429-434, 228 A.2d 711, 713-15 (App. Div. 1967) (workers' compensation).

The Carney and Pukowsky courts discussed federal anti-discrimination statutes in developing a test to be used under the NJLAD. Carney, 701 F. Supp. at 1098-1102; Pukowsky, 312 N.J. Super. 171, 182-83, 711 A.2d 404-05. The Carney court relied on the multi-factor test developed by the Third Circuit in E.E.O.C. v. Zippo Mfg. Co., 713 F.2d 32 (3d Cir. 1983), for Age Discrimination in Employment Act ("ADEA") cases, Carney, 701 F. Supp. at 1098-1100. This test represents a "hybrid" approach combining the traditional common law focus on the defendant's right to control the alleged employee's efforts with the more contemporary emphasis on the economic realities of the relationship between the parties. Zippo Mfg. Co., 713 F.3d at 36-38. Under this method, "[t]he extent of the empoloyer's right to control the `means and manner' of the worker's performance is the most important factor." Carney, 701 F. Supp. at 1098 (quoting Zippo Mfg. Co., 713 F.2d at 37) (citation omitted). The Court, however, must also consider: (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the `employer' pays social security taxes; and (11) the intention of the parties. Id. at 1098 (quoting Zippo Mfg., Inc., 713 F.2d at 37). *fn13

The Pukowsky court quoted the same basic multi-factor test, *fn14 but it did not adopt any particular test because it found that the tests developed by the federal courts are very similar and that the plaintiff failed to qualify as an employee under any variation. 312 N.J. Super. at 182-83, 711 A.2d at 404-05.

This Court finds it unnecessary to adopt a particular test given the context of this case and the similarity between the alternative tests. We will use the Zippo standard for purposes of analysis. However, because the United States Supreme Court has called into question the validity of the hybrid test and in order to provide a complete analysis, *fn15 the Court will also take into account the additional considerations of the common-law agency test such as how employee benefits were provided. *fn16 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989)).

A plaintiff may be an employee of more than one entity. Courts have recognized that an individual may be an employee of multiple employers under a particular statute, including anti-discrimination enactments. See, e.g., Gryga v. Ganzman, 991 F. Supp. 105, 108 (E.D.N.Y 1998), certification for appeal granted, No. 97 CV 3929, 1998 WL 229127 (E.D.N.Y. Apr. 7, 1998) (Title VII); *fn17 Walker v. Correctional Med. Sys., 886 F. Supp. 515, 519-22 (W.D. Pa. 1995) (finding prison nurse to be employee of county for purposes of Title VII even though she was employed by medical services contractor); Blessing, 94 N.J. Super. at 429-30, 228 A.2d at 713 (New Jersey's workers' compensation statute); cf. Hebard v. Basking Ridge Fire Co., 164 N.J. Super. 77, 83-84, 395 A.2d 870, 873 (App. Div. 1978) (stating in NJLAD case that members of volunteer fire company are employees of both township and fire company because township has substantial fiscal and supervisory control over company).

Christine Kurdyla's claims are sufficient to withstand defendants' motion to dismiss for failure to state a claim. The Second Amended Complaint, while not specifically addressing the employer-employee relationship, does allege: (1) "Exxon is an `employer' as defined by N.J.S.A. 10:5-1 et. seq.," (Second Am. Compl. Count I, ¶ 5); (2) Christine Kurdyla "commenced working at Exxon/Pinkerton as a life safety operator," (id. ¶ 3); (3) "Exxon Research is the ultimate parent corporation of Pinkerton," (id. ¶ 2); (4) "Exxon maintains control over the operations, business and practices of Pinkerton," (id.); and (5) Daryl Swiniski as well as the unknown defendants are "employees of Pinkerton & Exxon," (id. ¶ 6). *fn18 Because a person may be an employee of multiple employers, it is possible for Christine Kurdyla to have been an employee of both Exxon Research and Pinkerton. While plaintiff's allegations are not phrased in terms of the multi-factor test, we can reinterpret them in terms of the various test factors. For instance, the allegation that Exxon Research controls Pinkerton's activities leads to the inference that it controls plaintiff's activities as well. Cf. Hebard, 164 N.J. Super. at 83-84, 395 A.2d at 873 (stating in NJLAD case that volunteer firefighters are employees of township because of control exercised by township over fire company). This allegation therefore indicates that the important "right to control" factor has been satisfied. See, e.g., Carney, 701 F. Supp. at 1098 (quoting Zippo Mfg. Co., 713 F.2d at 37) (citation omitted). Though these allegations could be insufficient to prove that Christine Kurdyla is an employee of Exxon Research, they are sufficient to overcome a Rule 12(b)(6) motion to dismiss because they prevent the Court from concluding that it clearly appears that plaintiff can prove no set of facts in support of her claim for relief. Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). *fn19

NJLAD case law does not mandate a different conclusion. In both Carney and Pukowsky, the respective courts were not confronted with a motion to dismiss. The plaintiff in Pukowsky had appealed a directed verdict for the defendant. 312 N.J. Super. at 172, 711 A.2d at 399. In Carney, the defendant had moved for summary judgment. 701 F. Supp. at 1095. In this case, however, plaintiff has not even begun discovery. Given the fact-intensive nature of the analysis and the number and range of factors to consider, this Court concludes that it is inappropriate to grant a motion to dismiss at this early stage. Cf. Jean Anderson Hierarchy of Agents v. Allstate Life Ins. Co., 2 F. Supp. 2d 688, 693 (E.D. Pa. 1998) (denying motion to dismiss due to absence of information in record from which Court could apply common-law agency test in Federal Labor Standards Act/Equal Pay Act case); Hudson v. Radnor Valley Country Club, No. CIV. A. 95-4777, 1996 WL 172054, at *4 (E.D. Pa. Apr. 11, 1996) (refusing to grant motion to dismiss even though Title VII plaintiffs did not allege that defendant controlled access to employment and then foreclosed employment by unlawful discrimination and did not allege facts from which one could reasonably conclude that defendant jointly employed plaintiffs); Ahmad v. Independent Order of Foresters, 81 F.R.D. 722, 728-29 (E.D. Pa. 1979) (refusing to grant motion to dismiss in Title VII case), aff'd, 707 F.2d 1399 (3d Cir. 1983).

The NJLAD cases also involved individual plaintiffs who were clearly independent contractors. The Pukowsky court held that a skating instructor was not an employee of a skating rink because she recruited her own students, exercised exclusive control over the classes, received no fringe benefits, and characterized herself as self-employed on her tax returns. 312 N.J. Super. at 183; 711 A.2d at 404-05. The plaintiff in Carney was a shoe salesperson who received only a commission, earned no employment benefits, was responsible for his own transportation and most types of expenses, and paid his own income and social security taxes. 701 F. Supp. at 1100. In this case, however, we are confronted with a complex situation in which the basic question which must be answered is whether a life safety operator or security guard employed by one company is also an employee of another corporation. This question is more complicated and fact-intensive than merely determining whether a skating teacher is an employee of a skating rink or whether a salesperson is an employee of a shoe company. *fn20


For the reasons stated above, the Court denies the motion to dismiss for failure to state a claim. This denial, however, does not affect the ability of either side to file a motion for summary judgment at the appropriate time.

An appropriate Order accompanies this Memorandum Opinion.

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