Christopher G. Parker v. Mark T. Esper

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 19, 2021
• Docket: 20-13376
• Status: Unpublished

Opinion

USCA11 Case: 20-13376 Date Filed: 05/19/2021 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13376 Non-Argument Calendar ________________________

D.C. Docket No. 3:19-cv-00126-MCR-HTC

CHRISTOPHER G. PARKER,

Plaintiff - Appellant,

versus

MARK T. ESPER, Secretary of Defense,

Defendant - Appellee. ________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(May 19, 2021)

Before JORDAN, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13376 Date Filed: 05/19/2021 Page: 2 of 5

Christopher Parker, proceeding pro se, appeals the district court’s order

granting the government’s motion for summary judgment on his discrimination

claims under Title VII, 42 U.S.C. § 2000e, the Age Discrimination Employment Act,

29 U.S.C. § 621, and the Americans with Disabilities Act, 42 U.S.C. § 12112. The

district court ruled that the Defense Commissary Agency—an agency of the

Department of Defense—could not be liable for the alleged discrimination because

it was not Mr. Parker’s joint employer. The government has moved for summary

affirmance and to stay the briefing schedule. Mr. Parker has not responded to the

motion and has not filed his brief.

Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier

v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).

We review an order granting summary judgment de novo. See Josendis v.

Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir. 2011). Pro se

pleadings are liberally construed and held to a less stringent standard than pleadings

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drafted by attorneys. See Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).

However, “a pro se litigant does not escape the essential burden under summary

judgment standards of establishing that there is no genuine issue as to a fact material

to his case in order to avert summary judgment.” Brown v. Crawford, 906 F.2d 667,

670 (11th Cir. 1990). Where there are no genuine issues of material fact, a court

may decide whether an entity is a joint employer, in lieu of a jury. See Virgo v.

Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1360 (11th Cir. 1994).

In analyzing the joint employment question, a court considers the totality of

the circumstances to determine whether an employer-employee relationship exists.

See Wirtz v. Lone Star Steel Co., 405 F.2d 668, 669 (5th Cir. 1968). Two entities

are joint employers when they have contracted in good faith and “co-determine” the

essential terms of employment. See Virgo, 30 F.3d at 1360. In determining whether

an entity is a person’s employer, we consider whether the employment took place

on the alleged employer’s premises, how much control the alleged employer

asserted, and the extent to which the alleged employer had the power to modify

employment conditions. See Morrison v. Magic Carpet Aviation, 383 F.3d 1253,

1255 (11th Cir. 2004). Indirect control is insufficient to deem an entity a joint

employer. See id. at 1256.

Viewing the facts in the light most favorable to Mr. Parker, there is no

substantial question about the proper outcome of the case. Mr. Parker did not

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respond to the government’s motion for summary judgment, and the district court

correctly granted the government’s motion on the ground that the DCA was not Mr.

Parker’s joint employer. See Groendyke, 406 F.2d at 1162. Though Mr. Parker’s

employment did take place on the DCA’s premises—the DCA operates the Hurlburt

Field Commissary where Mr. Parker worked—the remaining Morrison factors

support the conclusion that the DCA was not Mr. Parker’s joint employer.

First, the DCA did not exert much control over Mr. Parker. Mr. Parker

admitted in his pre-complaint questionnaire that the DCA only assigned him duties

“at times,” but that the Brevard Achievement Center assigned the bulk of his job

responsibilities—including his schedule and work hours. Additionally, Mr. Parker

contracted with the BAC, not the DCA, for his employment. This supports the

conclusion that the DCA did not exert control over Mr. Parker as an employee,

despite occasionally assigning him tasks, because indirect control is insufficient to

make the DCA a joint employer. See Morrison, 383 F.3d at 1256.

Second, Mr. Parker did not present facts to create a jury question on whether

the DCA had the power to modify his employment conditions. Mr. Parker earned

and requested leave from the BAC. Moreover, the BAC performed his performance

evaluations, and the BAC was responsible for handling any disciplinary actions.

Furthermore, Kevin Hennelly (the director of the Equal Employment Office at the

DCA) attested in his affidavit that the DCA was not involved in the decision to

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terminate Mr. Parker, and Mr. Parker checked on his questionnaire that he was not

a federal employee.

Third, there is no substantial question that the district court did not err in

denying Mr. Parker’s motion to compel and motion for an enlargement of time in its

omnibus order. There is no legal mechanism that allowed the district court to compel

payment of fees for the purpose of acquiring hearing transcripts. To the extent that

Mr. Parker is appealing an unnamed order declining appointment of counsel,

appointment of counsel in civil cases is only warranted in cases with exceptional

circumstances, which Mr. Parker has yet to demonstrate exists in his case. See Poole

v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987).

In sum, there is no substantial question as to the outcome of the case, as the

DCA was not Mr. Parker’s joint employer. Although the employment took place on

the DCA’s premises, Mr. Parker did not present facts to create jury questions on

whether the DCA exerted control over him or whether the DCA had the power to

modify his employment conditions. See Morrison, 383 F.3d at 1255. Additionally,

there is no substantial question that the district court did not err in denying Mr.

Parker’s motion to compel and motion for an enlargement of time. Accordingly, the

government’s motion for summary affirmance is GRANTED and its motion to stay

the briefing schedule is DENIED as moot.

AFFIRMED.