You don’t need to be on the payroll to be an employee.
Good v. Fairfax County, et al., Civil Action No. 1:14-cv-1350 (E.D.Va. December 19, 2014). Ann Good, the plaintiff, was hired by the Fairfax County Sheriff’s Office in 1993 as a Deputy Sheriff. Fifteen years later, she began working as a Basic Instructor at the Fairfax County Criminal Justice Academy, referred to in this decision as the CJA. The CJA provides training to new recruits for both the Sheriff’s Office and the Fairfax County Police Department. In Fairfax County, the Sheriff’s Office manages the county jail, provides security in the county courthouses, and serves civil process; the Police Department, on the other hand, has the primary law enforcement responsibilities in the county. The CJA trains new recruits to obtain their Law Enforcement Certification, and, for Sheriff’s Office recruits, their Civil Enforcement Certification, and Court Security and Jailer Certifications.
The CJA Basic Recruit School is under the joint command of the county Police Department, the Sheriff’s Office, and the towns of Vienna and Herndon. As a Basic Instructor, Ms. Good was under the command of both the Police Department and the Sheriff’s Office, but reported to the Police Department on a daily basis. The Police Department command authorized Ms. Good’s leave and overtime, while the Sheriff’s Office command supervised her time and attendance. The Police Department command supervisors completed Ms. Good’s evaluation, with an addendum added by the Sheriff’s Office command supervisors.
In 2009, Ms. Good was stalked and harassed by a Fairfax County police officer. In the fall of 2009, that officer assaulted Ms. Good and in April of 2013, a jury convicted the officer of forcible sodomy. The police officer was sentenced to seven years of incarceration with two years suspended. In her Complaint, Ms. Good alleged that, contemporaneously in 2009, she was sexually harassed at work by her immediate supervisor, Police Department Sergeant Bridge. Ms. Good alleged that Bridge inappropriately touched her and told her that she “owed him” because of his continued support. Ms. Good complained about Bridge’s actions and sought relief from CJA supervisors in both the Police Department and the Sheriff’s Office. Between 2010 and 2012, Ms. Good alleges, she specifically complained to Sheriff’s Office Captain Prudhum, who ignored Plaintiff’s claims and pledged support for Bridge.
Following an internal investigation, Bridge was eventually reassigned from the CJA. Ms. Good’s complaint alleges that Bridge publicly addressed colleagues in the conference room, exposing Ms. Good’s confidential allegations and stating, “first she went after Summers, then she went after me, you could be next.” After this public statement, Ms. Good alleges that her colleagues ostracized her, refused to speak to her, and excluded her from work activities. The Police Department and Sheriff’s Office supervisors observed this behavior, but did nothing to stop it. Ms. Good alleged that high-ranking officers of the Sheriff’s Office and the Police Department continued to threaten and intimidate her throughout 2013.
In particular, Ms. Good alleged that a Police Department Sergeant removed her from her job as a physical trainer because of her harassment complaint; she alleged that a Police Department Captain made her internal affairs file regarding the harassment complaint available for viewing; she alleged that Sheriff’s Office Captain Prudhum directed a Police Department Sergeant to lower her performance evaluation; and she alleged that, during her participation in an excessive force exercise, supervisors permitted trainees to brutalize her beyond the point of excessive force. Finally, she alleged that she was removed from her Basic Instructor position at the CJA, where she had supervisory responsibilities over training recruits, and was involuntarily reassigned first to the Law Enforcement Training Unit, where she had no duties, and ultimately to the Civil Enforcement Unit, where she had some work duties, but no supervisory authority.
Ms. Good’s complaint initially alleged two claims each of sex-based discrimination and retaliation against the Sheriff’s Office and the Police Department, but, prior to the motion under consideration here, she voluntarily dismissed the sex-based discrimination claims. The motion under consideration was Fairfax County’s motion to dismiss the retaliation claim against the Police Department. Because it was a motion to dismiss, the Court accepted all of Ms. Good’s allegations as true.
Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating against an employee because the employee “opposed any practice made an unlawful practice by the [title], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this [title].” Ordinarily, a claim of retaliation under Title VII requires that the plaintiff show three things:
- The plaintiff engaged in a protected activity (such as reporting a complaint of discrimination);
- The plaintiff suffered an adverse employment action (such as termination, demotion, or reduction in pay); and
- The adverse employment action directly or indirectly resulted from the protected activity.
Fairfax County’s challenge to the complaint was not that Ms. Good had failed to allege these three things; instead, Fairfax County argued that it was not her employer within the meaning of Title VII.
Fairfax County’s motion contended that Ms. Good was solely employed by the Sheriff’s Office, an entity separate and distinct from Fairfax County. Sheriffs in Virginia are constitutional officers who serve independently of local governments: in other words, the Sheriff of a Virginia city or county is not an employee or officer of that city or county government. As a result, state and federal courts have consistently held that a local government in Virginia, like Fairfax County, cannot be held liable for the actions of the Sheriff’s Office. Fairfax County concluded that – because it cannot be held liable for the actions of the Sheriff’s Office – the case against it must be dismissed because Ms. Good could not make the threshold showing that Fairfax County was her employer.
In her opposition, Ms. Good conceded that Fairfax County could not be held liable for actions of the Sheriff’s Office, but instead argued that Fairfax County was separately liable as her co-employer. The question, then, was whether Fairfax County could be treated as the employer of an employee of the Sheriff, who is a completely separate and distinct governmental entity.
The Court settled this argument by looking to the way in which Title VII and the courts define the term “employer.” Fairfax County would be Ms. Good’s “employer” if (1) it fell within Title VII’s statutory definition of “employer,” and (2) it exercised substantial control over significant aspects of the compensation, terms, conditions, or privileges of Ms. Good’s employment.
Title VII defines an employer as “[a] person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” In her Complaint, Ms. Good alleged that Fairfax County had employed more than 500 persons in each of the preceding twenty months, thereby satisfying the statutory definition.
As noted above, courts have added to the statutory definition the requirement that, to be an employer, the defendant must exercise sufficient control over the terms of the plaintiff’s employment. Courts have also recognized that, for the purposes of Title VII, more than one employer may be simultaneously exercising sufficient control over a person’s work. Plainly, the statute does not adopt a rigid rule strictly limiting “employer” status to an individual’s direct or single employer. Because of this, the courts have interpreted Title VII to apply beyond the conventional single employer situation. Courts will therefore look beyond labels, descriptions, and payroll records to examine the relationship between the plaintiff and defendant in order to decide whether a defendant is plaintiff’s employer, or co-employer, as the case may be. In this inquiry, a defendant’s right to control a plaintiff’s work, or the means and manner of a plaintiff’s work performance, is the most important factor when determining whether that defendant is the plaintiff’s “employer” under Title VII.
In this case, the Court found that Ms. Good had alleged the following facts:
- The CJA was jointly operated by the Sheriff’s Office and the Police Department.
- Ms. Good reported to the Police Department on a daily basis.
- Ms. Good’s leave and overtime were authorized through the Police Department chain of command.
- Ms. Good’s performance evaluation, which assumedly impacted her work duties, was completed by Police Department supervisors.
- Ms. Good’s complaints of sexual harassment that form the basis of her retaliation claim were brought against a Police Department Sergeant.
- Notably, Ms. Good’s work duties at the CJA were altered or reassigned by Police Department employees.
The Court held that these allegations were sufficient to show that Fairfax County, through its Police Department, controlled Ms. Good’s work. Based on this holding, the Court concluded that Fairfax County was Ms. Good’s co-employer, along with the Sheriff’s Office, for the purposes of her Title VII retaliation claim. The Court denied Fairfax County’s Motion to Dismiss.