FIDELIS  I  OMEGBU, Complainant

MEQUON-THIENSVILLE SCHOOL DISTRICT, Respondent A

JOHN YOUNT, Respondent B

KARL HERTZ, Respondent C

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed December 21, 1995
omegbfi . rsd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

The complainant, a black male, is originally from Nigeria. He is the president and sole shareholder of the Kasa Corporation. Kasa Corporation, a general contractor, is located in Milwaukee, Wisconsin. In February 1993, Kasa submitted a bid to construct additions at Oriole Lane and Range Line schools for the respondent; Mequon-Thiensville school district.

Kasa's bid was accepted by the school district. The school district authorized Bray Associates, architects, to notify successful bidders of the district's acceptance of their bids. Pursuant to the school district's project manual, the successful bidder is required to file performance, material and labor bonds within 10 days after notice of acceptance of the bid. Bray Associates notified Kasa of the district's acceptance of its bids for construction work at Range Line and Oriole Lane schools by letters dated February 26 and March 1, 1993, respectively. Bray Associates' letters advised Kasa to proceed with the work and ordering of materials to facilitate construction, and to prepare the necessary performance, labor and material bonds.

After a preconstruction meeting held on March 3, 1993, a tour was conducted of the Oriole Lane project site and respondent John Yount apparently instructed the complainant to construct an access road to be used during the construction as there was no roadway in existence. Kasa Corporation, through the complainant, directed various subcontractors to begin this work, which the complainant at times supervised and at times performed himself.

Despite a reminder of the bonding requirement on March 3, 1993, subsequent discussions about the status of Kasa's bonding and the extension of an imposed March 31 deadline to April 2, 1993, to submit the necessary bonds, Kasa failed to furnish the bonds. On April 6 the respondent school district advised Kasa that it was releasing Kasa as the general contractor due to Kasa's failure to furnish the required bonds. Thereafter, on April 26, 1995, Omegbu filed a complaint with the Equal Rights Division alleging race and national origin discrimination.

Following a probable cause hearing, at which the respondent renewed a motion that it had filed on January 31, 1994, seeking dismissal of the complainant's complaint because Omegbu was not its employe, the ALJ issued a decision finding that the complainant was not an employe of the school district but an independent contractor and dismissed Omegbu's complaint. (The ALJ cites the dismissal of the case as coming under section Ind 88.03(1), Wis. Adm. Code (1991), but this is incorrect as the Equal Rights Division had issued an initial determination of no probable cause under section Ind 88.08 and the matter was proceeding in accordance with the provisions of sections Ind 88.10 and 88.12-88.18.)

The determination of whether the complainant is an employe of the respondent school district and thus entitled to protection under the Wisconsin Fair Employment Act involves an analysis of the school district's right to control the means and manner of his work and the economic realities of the work relationship. Moore v. LIRC, 175 Wis.2d 561, 569, 499 N.W.2d 289 (Ct. App. 1993). Further, while the right to control the means and manner of the work performed is the most important factor, additional factors for consideration include the following: (1) the kind of occupation, with reference to whether the work is usually 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;  (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.

The complainant appears to make two basic arguments relating to his claim of entitlement to protection under the Act. First, he apparently argues that because he personally performed work at the direction of the respondents in the absence of an executed contract between Kasa and the respondent he was an employe of the school district. This argument fails, however. The evidence shows that the complainant was not an employe of the school district, but the owner of a general contracting business who was proceeding to work prior to execution of the contract. For instance, the complainant acknowledges that when directed to build the road he was simply instructed to build the road and was not controlled as to the manner and means of building the road.

The complainant provided the equipment to use on the job. The only agreement regarding payment for work performed was the agreement with Kasa in accordance with the bid requirements and procedures followed by all contractors. The complainant's work relationship with the school district terminated when the school district released the Kasa Corporation as general contractor for failure to furnish the necessary bonds. Further, as shown by the bid documents, the complainant, as the representative of Kasa Corporation, and the school district only intended to enter into a contractual relationship for a construction project.

Secondly, the complainant has argued (apparently alternatively) that while the school district was not directly his employer it controlled his access to "market employment with Kasa," and that "the release of Kasa while performing work satisfactorily as demanded, was an interference in (his) access to employment." The complainant cites a number of cases including Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973), and a line of cases following Sibley in support of this argument. In Sibley, the plaintiff, a male private duty nurse, worked in the hospital whose nursing office would communicate a patient's need for a nurse to a registry and the registry would match the nurse with a patient who would then decide whether or not to accept the nurse. He alleged that hospital nurses themselves had rejected him as a nurse for a patient because he was a male, thereby preventing his employment by the patient. The court held that the plaintiff had a Title VII claim despite the fact that no direct employment relationship was contemplated by him and the hospital since the hospital controlled his access to employment opportunities.

The difficulty with the complainant's reliance on the Sibley line of cases, however, is that those cases involve employers who had significant control over an individual's employment opportunities and had interfered with such individual's employment opportunities with third parties. Here, the respondent neither had control over, nor did it interfere with, the complainant's right to employment opportunities with third parties. He was able to and did freely contract to perform work with other employers without any interference by the respondents. Additionally, to the extent the complainant may also be arguing that the school district interfered with his employment opportunities with his own corporation, this argument also fails. As noted by the respondents, in Mitchell v. Frank R. Howard Memorial Hospital, 853 F.2d 762, 47 FEP Cases 954 (9th Cir. 1988), cert. denied, 489 U.S. 1013, 61 FEP Cases 616 (1989), where plaintiff Mitchell, a radiologist whose contract with the hospital was terminated, argued that the hospital interfered with his employment relationship with the professional corporation of which he was the sole shareholder, the court rejected this argument stating "(w)e believe that the relationship between an individual and his wholly owned professional corporation is not an employment relationship that Congress intended to protect under Title VII." See also, Hayden v. La-z-Boy Chair Co., 95 F.3d 617, 63 FEP Cases 274 (7th Cir. 1993) (A plaintiff may not recover on the basis that an employer has interfered with the plaintiff's "employment relationship" with his wholly owned corporation.)

cc: Susan M. Love

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