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Doerr v. Easter Seal of New Jersey


March 27, 2001


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



Before this Court is the defendants' motion for summary judgment in the present matter. In a complaint filed on June 18, 1999, plaintiff Fred Doerr, appearing pro se, alleged that defendants National Easter Seal Society, Inc. ("National"), James E. Williams, Jr. ("Williams"), Easter Seal of New Jersey ("Easter Seal"), Tammy Norris ("Norris"), Alison Recca-Ryan ("Recca-Ryan") and William Waller ("Waller") engaged in discriminatory conduct in violation of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., when they refused to accredit him as an official foster care program participant. Defendants National and Williams filed a motion to dismiss for plaintiff's failure to exhaust administrative relief, which the Court granted. The remaining defendants now seek summary judgment on the ground that as a matter of law, Mr. Doerr did not enjoy an employment relationship nor would he have been an employee of the defendants had he been hired, and thus he does not have standing to sue under Title I of the Americans with Disabilities Act.

For the reasons set forth below, this Court will grant the defendants' motion for summary judgment.


In March 1996, plaintiff sought to participate in the Easter Seal Therapeutic Foster Care Program as a host parent to disturbed children with a history of mental instability and drug or alcohol abuse. On March 1, 1996 he took part in an initial telephone intake interview. (Defs.' Br. Ex. B.) Then on March 6, 1996, he completed a foster parent application form and signed it. (Defs.' Br. Ex. C.) The application form included a statement that stipulated that the signing of the application did not constitute a contract for employment. (Id. at 9.) Rather, the application was a means to determine whether plaintiff was eligible for foster parent training sessions. Plaintiff was approved for the training sessions and on June 10, 1996, he was given a pre-foster parent assessment and began the training. (Defs.' Br. Ex. D and H.) Plaintiff attended ten training sessions altogether, culminating with a post-foster parent assessment on July 22, 1996. (Defs.' Br. Ex. E. and H.) Then on September 10, 1996, plaintiff's house was inspected to determine whether it met the required standards for foster child placement. Easter Seal decided it could not certify the home because of the limited access the plaintiff had to the upstairs bedrooms, which would consequently prevent plaintiff from exercising adequate supervision over the children. (Defs.' Br. Ex. F.) The inspection report concluded:

This home cannot be certified because of reasons listed on the letter attached. This foster father has a very appropriate and enthusiastic attitude toward providing care. Unfortunately, limitations due to the parent's DYFS certification, inability to provide hands on assistance and teaching and the home layout preclude certification. The layout of the home precludes [the] foster father from providing intensive supervision.... An area of concern is potential foster father [is] not able to physically monitor upstairs bedrooms and bath or basement.... Foster father has no physical access to the upstairs youth sleeping quarters, or the basement where heater and laundry area is located. Ricigliano Aff. Ex. 1 at ¶ 19, Ex. F.

In a letter dated October 21, 1996, Easter Seal explained to plaintiff that he was being rejected as a foster parent because the layout of his house did not meet the required standards. (Defs.' Br. Ex. G.)

In response to the rejection by Easter Seal, plaintiff filed a complaint on June 18, 1999, alleging that Easter Seal discriminated against him in violation of 42 U.S.C. §§ 12101 et seq. (ADA) when it denied his participation in its Therapeutic Foster Care Program as a foster parent. Plaintiff claimed that defendants National, Williams, Easter Seal, Norris, Recca-Ryan and Waller conspired to deny his application for certification because he is disabled. He sought compensatory and punitive damages in excess of $2 million.

After the complaint was filed, defendants National and Williams filed a motion to dismiss the action against them because plaintiff had not first filed a complaint with the EEOC. On March 28, 2000, this Court granted National and Williams' motion to dismiss for failure to exhaust administrative remedies.

The remaining defendants filed a motion to dismiss the complaint asserting two arguments. The first asserted that plaintiff did not file his complaint within ninety days of his receipt of the right to sue notice from the EEOC as required by 42 U.S.C. §§ 2000e-5(f)(1). The second argument asserted that the complaint was deficient because in it plaintiff did not allege, and could not in good faith allege, that he enjoyed a prospective or actual employment relationship with the defendants. This Court denied the remaining defendants' motion to dismiss for plaintiff's failure to file his complaint in a timely manner. On the issue of whether plaintiff was a prospective or current employee the court did not reach the merits for lack of substantive evidence. It asked the parties to continue with discovery until such time as was appropriate to decide on the merits. Subsequently, defendants filed the present motion for summary judgment on August 1, 2001, submitting several documents attesting to their belief that plaintiff never was an actual or prospective employee.


A. Standard of Review in Summary Judgment

A district court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id.

In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Prods. , 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984).

The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However,

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial. Celotex, 477 U.S. at 322-323.

In such situations, "the burden on the moving party may be discharged by `showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Id. at 325; Brewer, 72 F.3d at 329-330 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").

B. Determination of Employee Status

Similar to Title VII and the ADEA, the ADA protects "employees" but not "independent contractors." See EEOC v. Zippo Mfg. Co., 713 F.2d 32, 37-38 (3d Cir. 1983). See also Aberman v. J. Abouchar & Sons, Inc., 160 F.3d 1148, 1150 (7th Cir. 1998); Dykes v. Depuy, Inc., 140 F.3d 31, 38-39 (1st Cir. 1998); Alford v. United States, 116 F.3d 334, 336 (8th Cir. 1997). At the outset, it bears mentioning that the parties did not address in their briefs whether New Jersey State law or Federal law should apply in defining "foster parent" as either an "employee" or "independent contractor" in the instant matter. Under New Jersey statutes, the definition of a foster parent is not accompanied by any indication of their employment status. It is stated simply under N.J.S.A. 30:4C-27.1 that foster parents "shall mean any person with whom a child in the care, custody or guardianship of the Bureau of Childrens Services, is placed for temporary or long-term care, but shall not include any persons with whom a child is placed for the purpose of adoption." (Id.) Two New Jersey judicial decisions, however, have held that foster parents are not employees of the State. See New Jersey Property Liab. Ins. Guar. v. State, 195 N.J. Super. 4 (App. Div. 1984); Stanley v. State Industries, 267 N.J. Super. 167 (Law Div. 1993).

The ADA defines an "employee" as "an individual employed by an employer." 42 U.S.C. § 12111(4). This ambiguous description is a problem shared by Title VII and the ADEA. With all three Acts the Third Circuit believes "the methods and manner of proof under one statute should inform the standards under the others as well." Newman v. GHS Osteopathic, Inc., 60 F.3d 153 (3d Cir. 1995). In making the determination of who is an "employee" under the ADEA, the Third Circuit has adopted the "hybrid" test, which looks at the economic realities of the situation but focuses on the employer's right to control the employee. Zippo Mfg. Co., 713 F.2d at 37. Under the principles of Newman, supra, this test is also applicable in ADA actions. The test requires an examination of the following factors:

(1) the extent of the employer's right to control the means and manner of the worker's performance; (2) 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; (3) the skill required in a particular occupation; (4) whether the "employer" furnishes the equipment used and the place of work; (5) the length of time during which the individual has worked; (6) the method of payment; (7) the manner in which the work relationship is terminated; (8) whether the worker accumulates annual leave and retirement benefits; (9) whether the work is an integral part of the business of the employer; (10) whether the employer pays social security taxes; and (11) the intention of the parties. Id.

Above all, the most important factor under the hybrid test is the "extent of the employer's right to control the means and manner of the workers's performance." Id.

The ultimate question of whether a party is an employee or an independent contractor is one of law, and is answered by looking at all of the facts applying the appropriate test. Alford 116 F.3d at 336; Short v. Central S.E. & S.W. Areas Pension Fund, 729 F.2d 567, 571 (8th Cir. 1984).

C. Analysis of Defendants' Motion for Summary Judgment

Defendants argue that the court should rule in their favor on the ground that plaintiff cannot in good faith assert that he enjoyed a prospective or actual employment relationship with them. (See Defs.' Br.) Defendants maintain that participants in the Easter Seal program are independent contractors, and are thus not covered under the ADA. (Id.) Plaintiff disputes the defendants' conclusion that he would be an independent contractor were he hired. (Pl.'s Br. at 13.)

Plaintiff also argues in the alternative that even if he were an independent contractor, the ADA would still prohibit discrimination. Plaintiff cites to Title II, 42 U.S.C. § 12131 et seq. of the ADA, to further this argument. Under this title it is forbidden for a public entity to deny a qualified individual the opportunity to participate in services or programs run by that public entity. Plaintiff has not, however, presented facts or arguments tending to create a genuine dispute as to whether Easter Seal is a public entity. *fn1 Thus, the sole issue for discussion is whether plaintiff was applying and was rejected for an employment position.

In the present case, defendants have provided various discovery material to help the Court determine the nature of a foster parent. Defendants first submit that the training period in which plaintiff participated did not qualify him as an employee, and second, that had plaintiff been accepted as a foster parent he would not have become an employee. (Defs.' Br. at 10-13.) In support of the first assertion, defendants alert the Court to the fact that the training was a voluntary program (Defs.' Br. Ex. 1, ¶ 3), there was no contract for employment (Defs.' Br. Ex. C), it only lasted one month (Defs.' Br. Ex. H), and there was no salary or wages during that period (Defs.' Br. Ex. 1, ¶ 23). Additionally, the length of plaintiff's relationship with defendants only spanned four months. (Defs.' Br. at 10.) This Court recognizes that the Zippo court remarked that the length of time an individual has worked, the method of payment, and whether he accumulates annual leave and retirement benefits are all relevant factors in determining his status as an employee or independent contractor. Thus, the present factors do not indicate sufficient economic control over the training session participant to consider him an employee. See Zippo, 713 F.2d at 37.

Defendants also point out that plaintiff would not have become an employee had he been accepted into the program. Indeed, had plaintiff been approved as a foster parent it appears control over him would be extremely limited for the very fact that contact with Easter Seal would be limited. This is because the foster parent is expected to take care of the children in his home with limited supervision. Thus, the most important factor in the hybrid test, referring to the employer's ability to control the manner and performance of the worker, fails to rise to a significant level. Id.

Some of the other factors in the hybrid test are also present in this case. The method of payment of a foster parent is by stipend and not a true salary or hourly wage. (Defs.' Br. Ex. 1, ¶ 23.) This lack of one of the most basic components of the employer-employee relationship is buttressed by the fact that there's no employment agreement and no understanding that the foster parent would receive benefits or accrue vacation time. Plaintiff does not genuinely dispute this claim. Rather, plaintiff has made bold but unsubstantiated allegations that some foster parents have payroll taxes and other deductions withheld by Easter Seal.

More facts lend credence to defendants' claim that a foster parent is not an employee. For example, the plaintiff having to "furnish his own equipment" since the foster parent would have to perform his work from home is yet another indication that there is no employment relationship. Id. Lastly, considering the nature and scope of the foster parent program it seems unlikely that the intention of the parties was to form an employment relationship. Id.

Overwhelmingly, it appears the economic realities of the situation and the lack of substantive control over the foster parent's performance supports the contention that a foster parent is not an employee. Id. Based on the submitted materials by both parties this Court concludes that there is no genuine dispute that plaintiff, as a prospective foster parent, would not be an employee of Easter Seal. Plaintiff has failed to meet his burden as the non-moving party to show that there indeed were specific facts showing that there is a genuine issue for trial. Because no reasonable fact finder viewing this evidence at trial could find that Easter Seal has an employer/employee relationship with its foster parents, nor that training to become a foster parent is the equivalent of training to become an employee, the plaintiff cannot prevail at trial and his complaint will be dismissed in its entirety.


For the foregoing reasons, this Court finds that plaintiff was never an employee of Easter Seal nor was he denied the opportunity to become an employee of Easter Seal. Therefore, this Court will grant summary judgment for the defendants, and this case will be dismissed. The accompanying Order is entered.

JEROME B. SIMANDLE U.S. District Judge


This matter having come before the Court upon the motion of defendants Easter Seal of New Jersey, Tammy Norris, Allison Recca-Ryan, William Waller, and National Easter Seal Society, Inc., for summary judgment pursuant to Rule 56(c), Fed. R. Civ. P.; and the Court having considered the parties' submissions; and for the reasons expressed in the Opinion of today's date;

IT IS this 27th day of March 2001 hereby

ORDERED that the motion of defendants for summary judgment be, and hereby is, GRANTED, and this case is DISMISSED.

JEROME B. SIMANDLE U.S. District Judge

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