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Hendon v. Kamtek, Inc.

United States District Court, N.D. Alabama, Southern Division

July 24, 2015

KAMTEK, Inc., et al., Defendants

For Shannon Hendon, Plaintiff: Charity Gilchrist-Davis, Sherice M Carter, LEAD ATTORNEYS, LAW OFFICE OF GILCHRIST-DAVIS LLC, Birmingham, AL; Lee David Winston, Roderick T Cooks, LEAD ATTORNEYS, WINSTON COOKS LLC, Birmingham, AL.

For PSI-Staffing Inc, Defendant: Christie D Knowles, KNOWLES - SULLIVAN, LLC, Gadsden, AL.

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Before the court is the joint motion of defendant Kamtek, Inc. (" Kamtek" ) for summary judgment under Fed.R.Civ.P. 56 and for dismissal under Fed.R.Civ.P. 12(b)(6) (Doc. 11). For the reasons explained below, the motion to dismiss will be granted, mooting the motion for summary judgment.


Plaintiff Shannon Hendon is an African-American female over the age of 40. (Doc. 1 at 3, ¶ 9). She was employed by defendant Personnel Staffing, Inc. (" PSI" ) from April 2013 to December 2013. (Docs. 1 at 3-4, ¶ ¶ 9 & 13, 11 at 4, ¶ 7). PSI provides temporary personnel, known as PSI Associates, to Kamtek. (Docs. 1 at 3, ¶ 9, 11 at 3, ¶ 2). PSI also provides Kamtek with on-site management personnel, known as On-Site Supervisors or Human Resource Managers, who are responsible for coordinating the operations of PSI's associates and administering drug screenings. (Docs. 1 at 3, ¶ 9, 11 at 4, ¶ 5). Hendon was an On-Site Supervisor. (Docs. 1 at 3, ¶ 9, 11 at 4, ¶ 6).

As an On-Site Supervisor, Hendon worked on Kamtek's premises, but her office was located in a trailer designated specifically for PSI use. (Doc. 11 at 4-5, ¶ 10). Although there was obviously interaction with Kamtek employees, Hendon was not supervised by any Kamtek employees. (Doc. 11 at 5, ¶ 12). Her personnel file was maintained only by PSI, and PSI was entirely responsible for her compensation. (Doc. 11 at 5-6, ¶ ¶ 14, 16).

In September 2013, Hendon was contacted by Arthur Thomas, an African-American Kamtek employee. (Doc. 1 at 4, ¶ 10). Thomas complained to Hendon that he had been discriminated against when taking a drug test. Id. Whether he was complaining against PSI, or against Kamtek,

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or against both, is unclear. According to Thomas, he was only given 45 minutes to produce a urine sample but could not do so, while white employees had been given up to two hours to produce a sample. (Doc. 1 at 4, ¶ ¶ 10-11). Thomas was terminated by Kamtek and was orally given his failure to provide a urine sample as the reason for his termination. At his termination hearing, he mentioned that Hendon had knowledge of white employees who were not terminated after having failed a drug test or after being unable to produce a timely urine sample. (Doc. 1 at 4, ¶ 12).

On December 5, 2013, PSI fired Hendon. (Docs. 11 at 6, ¶ 20, 19-2 at 2). The reason given on the written termination notice was: " Client requested restructure of on-site personnel." (Doc. 19-2 at 2). Kamtek is unquestionably the client to which this notice referred. Hendon was thereafter replaced by a younger male employee. (Doc. 1 at 5, ¶ 15). Kamtek contends that it was not involved in PSI's decision to terminate Hendon and was not even aware of the decision until after the termination had taken place. (Doc. 11 at 6-7, ¶ ¶ 21-23). Kamtek also had nothing to do with PSI's choice of a replacement for Hendon.

On December 11, 2013, Hendon filed a charge of discrimination with the EEOC against Kamtek and PSI. (Doc. 1-1 at 6). She received right-to-sue letters on August 22 and 26, 2014. (Doc. 1-1 at 2, 4). She filed this lawsuit on November 20, 2014. In her complaint, she alleges that she was discriminated against based on her race (in violation of Title VII and 42 U.S.C. § 1981), on her sex (in violation of Title VII), and on her age (in violation of the ADEA).

PSI and Kamtek filed motions in response to Hendon's complaint. PSI moved to compel arbitration. The court granted its said motion on March 2, 2015, and the above entitled action as to PSI is currently stayed pending arbitration. (Doc. 14). Kamtek moved for summary judgment under Fed.R.Civ.P. 56, or, in the alternative, for a dismissal under Fed.R.Civ.P. 12(b)(6). In its summary judgment motion, Kamtek contends, inter alia, that it cannot be liable because it was not Hendon's employer. The employment discrimination statutes relied upon by Hendon do not give this court jurisdiction over the conduct of non-employers. In its motion to dismiss, Kamtek also argues that Hendon's complaint does not allege facts to show that Kamtek discriminated against her based on her race, or based on her sex, or based on her age, and that her complaint fails to state a viable claim based on her association with Arthur Thomas. She does not even attempt to mount a claim of retaliation.

On May 12, 2015, the court ordered Hendon to show cause why her ADEA claim should not be dismissed for her failure to allege that her age was the " but-for" cause of her termination, as is required by Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). (Doc. 18). Hendon has responded to Kamtek's motion and to the court's show cause order.


Because Kamtek's motion for summary judgment, inter alia, is a challenge to this court's subject-matter jurisdiction, the court will address that motion first. See OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d 1344, 1352-53 (11th Cir. 2008).

A. Motion for Summary Judgment

Summary judgment is appropriate only when " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must " examine

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the evidence in the light most favorable to the non-moving party," drawing all inferences in favor of that party. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). " [A] 'judge's function' at summary judgment is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam) ...

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