Federal District Court Opinions

1:05CV00585. United States District Court, M.D. North
Carolina. August 9, 2006


PAUL SHARP, Magistrate Judge

This matter comes before the Court on the motion for
summary judgment of Defendants State of North Carolina and
North Carolina Department of Health and Human Services.
(Pleading No. 19.) Plaintiff Constance Fuss has opposed the
motion, and Defendants have filed a reply. The motion is
ready for a ruling.

Procedural History

Plaintiff Constance Fuss brought this action pursuant to
the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. (“FLSA”). (Pleading No. 3, Complaint (“Compl.”).) Fuss
alleges that Defendants State of North Carolina and North
Carolina Department of Health and Human Services
(“Defendants” or “North Carolina”) acted as her “employer”
in connection with her job as a live-in caregiver for two
quadriplegic men. Compl. ¶¶ 4, 6-7. Plaintiff
Page 2 alleges that she worked in excess of forty hours per
week without being paid overtime. Id. ¶ 7.
Defendants deny that there has even been an
employer-employee relationship between Plaintiff and
Defendants. Defendants move for summary judgment on the
grounds that, as a matter of law, they were not Plaintiff’s
employer within the meaning of the FLSA.

Statement of Facts

The North Carolina Department of Health and Human Services
(“DHHS”) provides for the health, safety and well being of
North Carolina residents. (Pleading No. 19, Mot. for Summ.
J., Affidavit of Elizabeth Bishop (“Bishop Aff.”) ¶
4). The Division of Vocational Rehabilitation (“VR”) is a
division of the DHHS that, through state and federal
funding, provides counseling, training, education, medical,
transportation, and other support services to persons with
physical or mental disabilities so they may live and work
as independently as possible. Id. ¶¶ 6-8.
Independent Living Services (“IL”) is a program within VR.
IL’s clients include individuals with spinal cord and brain
injuries, muscular dystrophy, multiple sclerosis, cerebral
palsy, amputations, sensory impairments and diabetes. Id.
¶ 9. Counselors and clients jointly develop a plan
to achieve the goals of the program. Id. An IL counselor’s
role includes counseling and encouraging clients; providing
information, resources and referrals; helping to locate and
secure housing and medical equipment; and providing
independent living skills training. Id. ¶¶

The IL program has adopted certain policies and
procedures, including a Personal Assistance Services Policy
contained in Policy Manual Section 2-18. (Pleading No. 19,
Exs. Page 3 numbered 620-29; see also Bishop Aff.
¶¶ 16-24.) Pursuant to this policy, the
program does not employ personal care assistants for
eligible participants. Id. Instead, where funding is
approved, IL allows the client to hire and pay an assistant
to help with his or her needs, and IL arranges for
reimbursement to the client for approved services or
equipment. Id. In connection with attendant care, the IL
client is responsible for hiring a caregiver, withholding
and reporting taxes, and paying the caregiver. Id. The IL
program receives no monetary or tangible benefit from the
care that personal attendants provide to its clients.
(Bishop Aff. ¶ 16.) IL clients sign an Independent
Living Rehabilitation Program Attendant Care Client
Services and Reimbursement Agreement in which the client
acknowledges that he or she will act as the employer of any
caregiver he or she retains, and will be responsible for
withholding, reporting and paying state and federal taxes.
(Pleading No. 19, Exs. numbered 634-637.)

Plaintiff Fuss relocated to North Carolina in 2002 in order
to work as a nanny to her daughter’s children. (Pleading
No. 19, Deposition of Constance Fuss (“Fuss Dep.”) at
25-27.) Fuss’ daughter ended up having Fuss involuntarily
committed to a mental health facility in High Point for a
manic-depressive condition. Id. at 38-43. After Fuss was
released from the facility, she sought services from the
North Carolina Division of Vocational Rehabilitation
Services (“VR”). Id. at 43. An individual at VR noted that
Fuss had a strong work history as a live-in caregiver for
quadriplegic and other disabled Page 4 individuals, and
agreed to put Fuss in touch with Walter Flowers, the unit
manager for the IL program. Id. at 45.

In or about December 2002, Plaintiff Fuss called the
Greensboro division of the IL program to express her
interest in working as a caregiver for IL clients. Id. at
46. Subsequently, Fuss met with Flowers in person. Id. In
her deposition, Fuss described the meeting with Flowers as
a “typical interview.” Id. at 47-48. She could not recall
what, if any, forms she filled out. Id. Flowers averred
that he advised Fuss that the IL program did not hire or
employ attendant care workers, but that he agreed to put
her in contact with any of IL clients who were looking for
a caregiver. (Pleading No. 19, Affidavit of Walter Flowers
(“Flowers Aff.”) ¶¶ 15-19; Fuss Dep. at
48-49.) One such client was Billy Dixon. Dixon had been
referred to the IL program in March 2000, after expressing
a desire to move out of his nursing home and live
independently. Flowers acted as Dixon’s IL counselor and
helped Dixon develop a plan for living independently.
(Pleading No. 19, Affidavit of Billy Dixon (“Dixon Aff.”)
¶¶ 3-4.) Between 2000 and 2002, Dixon had been
trying to locate a caregiver, and IL had been trying to
locate a house for Dixon, without success. Id. ¶ 7.
In or about February 2003, Flowers told Dixon about Fuss.
(Flowers Aff. ¶ 8; Dixon Aff. ¶ 8.)

In March 2003, Dixon interviewed Fuss for a position as
his personal caregiver (Dixon Aff. ¶ 9.) Dixon’s
social worker, nursing home staff, and Flowers were all
present for at least part of the interview. Id. Fuss
expressed her interest in a live-in situation. Id. Dixon
took the matter under consideration. Id. ¶ 10.
Around the same time, another Page 5 quadriplegic, Barry
Robinson, was trying to move out of his nursing home and
was also looking for an independent living situation and a
personal attendant. (Pleading No. 19, Affidavit of Barry
Robinson (“Robinson Aff.”) ¶ 7.) Flowers told
Robinson about Fuss. Id. ¶ 8. Subsequently, Robinson
and Fuss met to discuss the possibility of Fuss working for
Robinson. Id. Robinson was eligible for 21 hours per week
of attendant care through the IL program. (Fuss Dep. at
58.) Ultimately, Robinson also decided to hire Fuss.
(Robinson Aff. ¶ 12.) Flowers stated in his
deposition that he put Fuss in contact with Dixon and
Robinson and checked Fuss’ references, but otherwise denied
playing any role in the decisions of Dixon or Robinson to
hire Fuss. (Pleading No. 19, Deposition of Walter Flowers
(“Flowers Dep.”) at 38.)

Sometime in February 2003, the IL program located a house
in Burlington that would, with minor modification, meet the
needs of two disabled clients. (Flowers Aff. ¶ 22.)
Dixon and Robinson decided to hire Fuss as their personal
attendant and agreed to allow her to live in the
three-bedroom house with them, rent-free. (Dixon Aff.
¶ 10; Robinson Aff. ¶ 12.) Fuss understood
that IL funded 21 hours per week for Robinson and 40 hours
per week for Dixon. (Fuss Dep. at 50, 58.) It was the
decision of Robinson and Dixon to “share” Fuss’ services.
Flowers explained to Fuss that her hours for Dixon and
Robinson could not overlap, and that her hours for Robinson
could not overlap with the care he was receiving from other
caregivers such as Angel Hands. (Flowers Aff. ¶ 47;
Flowers Dep. at 60.) Page 6

In April 2003, Dixon and Robinson moved into the house in
Burlington with Fuss as their live-in attendant. On April
1, 2003, Jeff Hodges, the case work assistant for the
Greensboro IL program, met with Robinson, Dixon and Fuss at
the house to explain IL’s attendant care policy. (Dixon
Aff. ¶ 11; Robinson Aff. ¶ 10; Pleading No.
19, Affidavit of Jeff Hodges (“Hodges Aff.”)
¶¶ 13-16.) Dixon and Robinson each signed an
“Independent Living Rehabilitation Program Attendant Care
Client Services and Reimbursement Agreement,” acknowledging
that each of them acted as Fuss’ employer and that each of
them was responsible for withholding and reporting taxes
for Fuss. (Pleading No. 19, Exs. numbered 634-37.) Dixon
was entitled to be reimbursed by IL for up to 40 hours per
week, and Robinson for up to 21 hours per week, for
attendant care. Fuss enjoyed free room and board, and had
her own separate bedroom and bathroom. (Fuss. Dep. at

Fuss signed two separate documents entitled “Attendant
Understanding of Employer Obligation to Withhold Social
Security and Medicare Taxes (FICA),” acknowledging that
Dixon and Robinson were her employers. (Pleading No. 19,
Exs. numbered 638-39.) She admitted in her deposition that
she did so voluntarily after reading and understanding the
documents. (Fuss Dep. at 143-45.) Dixon and Robinson paid
Fuss for her services and were reimbursed by IL for the
authorized amounts. (Dixon Aff. ¶ 16; Robinson Aff.
¶ 15.)

Plaintiff’s job generally required her to provide hygiene
care, prepare meals, and maintain the household. (Dixon
Aff. ¶¶ 14, 17; Robinson Aff.
¶¶ 13, 17, 22; Fuss Dep. at 64-67; Ex.
numbered 670.) It was up to Dixon and Robinson to keep Fuss
informed of their Page 7 needs. (Fuss Dep. at 78-79.)
Because IL only sponsored 40 hours per week for Dixon and
21 hours per week for Robinson, it was agreed that Fuss
would work evenings (starting at 3 p.m.) and weekends.
(Fuss Dep. at 64, 76; Ex. numbered 669.) On weekday
mornings, Dixon and Robinson received attendant care from
an outside company funded by Medicaid. (Fuss Dep. at 69.)
For Dixon, this Medicaid-funded assistance lasted 45 days,
after which time Fuss began to perform certain tasks for
Dixon in the mornings. (Dixon Aff. ¶ 20.) Fuss
submitted time sheets to IL that reflected no more than
forty hours per week for Dixon and no more than twenty-one
hours per week for Robinson. (Fuss Dep. at 70; Pleading No.
19, Exs. numbered 03-43, 336-66.) Based on these time
sheets, IL reimbursed Dixon and Robinson for amounts paid
to Fuss.

Fuss testified that she lived in the house free of charge
and did not pay for the majority of her meals, but
maintains that this was not part of her compensation. (Fuss
Dep. at 90-93.) She testified that she was able to
exercise, run errands, and visit family members during the
time that she worked for Dixon and Robinson. Id. at 67, 99,
101, 104. Progress reports prepared by Fuss’ VR counselor
reflect that she worked a side job as a housekeeper during
the hours she was not caring for Dixon and Robinson.
(Pleading No. 19, Ex. numbered 670.) She received no
training or directions from IL regarding the care of Dixon
and Robinson. (Fuss Dep. at 130-32.) Her W-2 forms reflect
Dixon and Robinson as her employers for the relevant time
period. (Pleading No. 19, Ex. RP-1.) Nevertheless, she
maintains that Flowers was “running the show” and
effectively required her to misrepresent Page 8 her time
on her time sheets. (Fuss Dep. at 137, 146.) Fuss further
maintains that she was, in fact, on duty 140 hours per week
— that is, at the beck and call of both men twenty
hours a day, seven days a week. (Fuss Dep. at 102.) She
claims that Flowers told her to be available to Robinson
and Dixon at all times that the Medicaid-sponsored
attendants were not present. Id. at 69-70. She had tried to
get Flowers to agree to increase her compensation to
reflect the additional time worked, but Flowers advised
that the agency could not do so. Id. at 35.

Flowers averred that IL dictated the number of hours for
which Dixon and Robinson could be reimbursed for attendant
care services and the rate of pay for such services, but
denied that he ever asked Fuss to work more hours than
those for which reimbursement was authorized or that he
ever told her how to structure her hours. (Flowers Aff.
¶ 56; Flowers Dep. at 61-65.) Flowers admitted that
occasionally he might have asked Fuss to accompany Robinson
to a doctor’s appointment or to pick up medication, but
denied that he dictated her duties on a daily basis.
(Flowers Aff. ¶¶ 45, 48.) He stated in his
deposition that he did not recall ever telling Fuss that
she could not leave the house. (Flowers Dep. at 82.) The
agency itself had no authority to “fire” Fuss or terminate
her services. Id. at 124.

Fuss and Robinson did not get along well. Fuss consulted
Flowers numerous times about her problems with Robinson, and
also called the police on at least three occasions due to
Robinson’s conduct. Id. at 109-112. Robinson eventually
entered substance abuse treatment and, upon his release
from that program in late September 2003, Fuss refused to
Page 9 work for him again. (Robinson Aff. ¶ 35.)
Fuss continued to work for Dixon until on or about October
6, 2003, when Dixon was admitted to the hospital for
pressure sores. (Dixon Aff. ¶ 29.) After he had
healed, Dixon decided to remain in a nursing home instead
of returning to the independent living situation with Fuss.
Id. ¶ 30.

Plaintiff Fuss received unemployment benefits for some
period of time after she left Dixon’s employment. (Fuss
Dep. at 36.) She subsequently encountered problems with the
Internal Revenue Service because Robinson had failed to
file her withholding forms. Id. Her difficulties in dealing
with that problem culminated in this litigation.


The summary judgment standard of review under Rule 56 of
the Federal Rules of Civil Procedure is well established. A
party is entitled to judgment as a matter of law upon a
showing that “there is no genuine issue as to any material
fact.” Fed.R.Civ.P. 56(c). The material facts are those
identified by controlling law as essential elements of
claims asserted by the parties. A genuine issue as to such
facts exists if the evidence forecast is sufficient for a
reasonable trier of fact to find for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
No genuine issue of material fact exists if the nonmoving
party fails to make a sufficient showing on an essential
element of its case as to which it would have the burden of
proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). In evaluating a forecast of evidence on
summary judgment review, the court must Page 10 view the
facts and inferences reasonably to be drawn from them in
the light most favorable to the nonmoving party. Anderson,
477 U.S. at 255.

When the moving party has carried its burden, the
nonmoving party must come forward with evidence showing
more than some “metaphysical doubt” that genuine and
material factual issues exist. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), cert.
denied, 481 U.S. 1029 (1987). A mere scintilla of evidence
is insufficient to circumvent summary judgment. Anderson,
477 U.S. at 252. Instead, the nonmoving party must convince
the court that, upon the record taken as a whole, a
rational trier of fact could find for the nonmoving party.
Id. at 248-49. Trial is unnecessary if “the facts are
undisputed, or if disputed, the dispute is of no consequence
to the dispositive question.” Mitchell v. Data General
Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).

On this motion for summary judgment, the Court is
presented with the issue of whether an employer-employee
relationship existed between Plaintiff Fuss and the North
Carolina Defendants. Plaintiff bears the burden of proving
that Defendants were joint employers with Dixon and
Robinson for purposes of the FLSA. Davis v. Food Lion, 792
F.2d 1274, 1276 (4th Cir. 1986). The FLSA provides little
guidance as to what constitutes “employment” sufficient to
trigger the protections of the Act. An “employee” is
defined as “any individual employed by an employer.” 29
U.S.C. § 203(e)(1). To “employ” means “to suffer or
permit to work.” Id. § 203(g). Because the FLSA does
not define which activities constitute “employment,” courts
use its commonly understood meaning to determine the Page
11 status of a particular relationship on a case-by-case
basis. “Employment” refers to “physical or mental exertion
(whether burdensome or not) controlled or required by the
employer and pursued necessarily and primarily for the
benefit of the employer and his business.” Tennessee Coal,
Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598
(1944). In making this determination, courts remain mindful
that “[t]he employer-employee relationship does not lend
itself to rigid per se definitions, but depends upon the
circumstances of the whole activity.” Reich v. ConAgra,
Inc., 987 F.2d 1357, 1361 (8th Cir. 1993) (internal
quotations omitted).

Defendants cite the case of Benshoff v. City of Virginia
Beach, 180 F.3d 136 (4th Cir. 1999) in support of their
argument that no employment relationship existed between
Plaintiff Fuss and Defendants State of North Carolina and
DHHS. In Benshoff, seven plaintiffs were employed as
firefighters for the City of Virginia Beach. As part of
their employment, they were required to receive basic life
support training. They opted also to receive advanced life
support certification, and elected to serve in private,
all-volunteer rescue squads providing emergency medical
services throughout the City. Each rescue squad was a
separately incorporated non-profit entity, but was
coordinated and overseen to some extent by the Department
of Emergency Medical Services (“DEMS”), an agency created
by the City. Plaintiffs sued the City, seeking overtime
compensation under the FLSA for their services as rescue
squad members. The district court granted summary judgment
to the City, and the Fourth Circuit affirmed the decision.
Id. at 142-146. The Court found that the City’s Page 12
financial assistance and oversight of, and benefit from,
the rescue services were insufficient to create an
employment relationship between the City and the rescue

In the case at bar, as in Benshoff, the Defendants North
Carolina and DHHS sponsored the independent living program
and assisted in scheduling attendant care and arranging for
funding. However, Defendants’ supervision and control of
the attendant care workers was limited. Although the
structure of the IL program ensures that participants have
the facilities necessary to establish an independent living
situation, Defendants do not select or provide the
care-givers. Participants in the program are provided with
as much autonomy as possible to select and direct the
services funded by state and federal programs. Defendants
did establish the maximum amount for which Dixon and
Robinson could be reimbursed for expenses associated with
their independent living situation. They did not, however,
dictate who would serve as a participant’s caregiver and
did not dictate the tasks to be performed. Like the workers
in Benschoff, Plaintiff Fuss fully understood the
arrangement and opted to participate within the constraints
of the program.

Plaintiff Fuss admits that she was hired directly by Dixon
and Robinson, but maintains that Defendants qualify as
“joint” employers with Dixon and Robinson under the FLSA.
The FLSA recognizes a broad definition of employer and
contemplates several simultaneous employers, each
responsible for compliance with the Act. See 29 C.F.R.
§ 791.2(a); Falk v. Brennan, 414 U.S. 190, 195
(1973) . The pertinent regulations define “joint
employment” as “a condition in which a single individual
stands in the relation of an Page 13 employee to two or
more persons at the same time.” 29 C.F.R. §
500.20(h)(5). “A determination of whether the employment is
to be considered joint employment depends upon all the
facts in the particular case.” Id. The concept of joint
employment has been addressed on occasion by courts in the
Fourth Circuit. See Ricketts v. Vann, 32 F.3d 71 (4th Cir.
1994); Howard v. Malcolm, 852 F.2d 101 (4th Cir. 1988) ;
Haywood v. Barnes, 109 F.R.D. 568, 586-87 (E.D.N.C. 1986).
To determine whether a joint employment relationship
exists, a court must judge the economic realities of each
individual case. See Ricketts, 32 F.3d at 75-76; Howard,
852 F.2d at 104-05. A number of factors inform this
determination: (1) ownership of the property and facilities
where the work occurred; (2) the degree of skill required
to perform the job; (3) investment in equipment and
facilities; (4) permanency and exclusivity of employment;
(5) the nature and degree of control of the worker; (6) the
degree of supervision of the work; (7) the power to
determine the pay rates or the methods of payment of the
workers; (8) the rights to hire, fire, or modify the work
conditions of the worker; and (9) preparation of payroll
and payment of wages. Haywood, 109 F.R.D. at 587 (finding
migrant farm workers to be employees of both farmers and
farm labor contractors). The presence or absence of any
individual factor is not dispositive; rather, the
determination of the legal issue depends “`upon the
circumstances of the whole activity.'” Id. (citing
Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)).

In this case, it is undisputed that Defendants did not own
the property where Plaintiff Fuss worked. Page 14

The work performed by Plaintiff Fuss was, for the most
part, unskilled and unspecialized, and was not inseparably
or distinctively associated with the work performed by
Defendants, although it did contribute to Defendants’

The record contains no evidence on the third factor,
investment in equipment.

Regarding the fourth factor, Fuss’ employment was not
permanent or exclusive. She was employed at the will of
Dixon and Robinson. Significantly, Fuss’ progress reports
from VR show that during the time she worked as a personal
attendant, her employment was not exclusive, and she also
worked as a housekeeper for other individuals. Fuss appears
to admit that at least for part of her employment, she
regularly left the house to attend to other matters. Fuss
testified that, at one point during her employment, the
agency caring for Robinson complained to Flowers that Fuss
was leaving Dixon alone in the mornings, and Flowers told
Fuss “not to leave [the house] at any time, 24 hours a day,
not to leave home except . . . to go to the laundromat . .
. [and] to make sure that [she] did it when a CNA was
there.” (Fuss Dep. at 69-70.) She perceived this simply to
mean that she was not to leave Billy Dixon alone when
Robinson’s caregiver was at the house. Id. at 70.

Under the fifth and sixth factors, Fuss’ job duties were
dictated primarily by Dixon and Robinson. Defendants did not
tell Fuss how to perform her duties, what meals to prepare,
how to clean the house, how to administer medicine or how
to perform any other personal attendant duties; those
directions came primarily from Dixon and Robinson. Page 15

Under the seventh factor, Defendants concede that the IL
program dictated the hourly pay rate and number of hours
for which Dixon and Robinson would be reimbursed. However,
this did not preclude Dixon and Robinson from using other
sources of income to compensate Fuss for additional hours
that she might have spent caring for them. It is undisputed
that only Dixon and Robinson had the right to hire and fire
Fuss; the fact that Flowers referred Fuss to Dixon and
Robinson, and checked her references for them, did not
alter that fundamental autonomy. Fuss was paid for her
services by Dixon and Robinson and at no time did she
receive any checks from Defendants.

Fuss cites Falk v. Brennan, 414 U.S. 190 (1973), and
Bonnette v. California Health and Welfare Agency, 414 F.
Supp. 212 (N.D. Ca. 1976), aff’d, 704 F.2d 1465, 1469-70
(9th Cir. 1983), in support of her argument that the
“economic reality” of the relationship was that Defendants
were joint employers with Dixon and Robinson. In Falk, the
Court found that maintenance workers at an apartment
building were employees of both the owner of the building
and the real estate management company that managed the
building. The court found that the real estate company had
“substantial control of the terms and conditions of the
work of” the building employees. Id. at 195. It employed
maintenance workers and purchased materials necessary for
the operation and maintenance of the building, and received
significant monetary remuneration for this service. The
facts in the Falk case are distinguishable from the facts
in the present case. There is no dispute that the house in
which Plaintiff, Dixon and Robinson lived was owned by
First Baptist Service Corp. and Page 16 managed by Robert
Brown. The Defendants did not own, maintain or manage the
premises where Fuss worked. Dixon and Robinson had the
right to hire and fire Fuss. Fuss’ day-to-day job duties
were dictated primarily by Dixon and Robinson. IL received
no monetary benefit akin to that received by the real
estate management company in Falk.

In Bonnette, a Ninth Circuit case, the district court
denied summary judgment to state agencies that were sued by
domestic workers under the FLSA minimum wage provision.
414 F. Supp. at 214. The district court’s decision was
affirmed on appeal. Bonnette, 704 F.2d at 1469-70. The
basic factual similarities between Bonnette and the instant
case are undeniable. There, as here, the plaintiffs
assisted disabled welfare recipients with basic daily
chores. Id. Applying a four-factor test, the Bonnette court
found that the state agencies had the clear authority to
hire and fire the workers; in some instances directly paid
the workers and, in any event, dictated the hours and
compensation; and maintained employment records. Id. at
1470. Most significantly, the court found that the agencies
“exercised considerable control over the structure and
conditions of employment,” by intervening in disputes “when
problems arose which the recipient and the chore worker
could not resolve.” Id. at 1470. In analogizing the facts
of Bonnette to this case, Plaintiff points to evidence that
Flowers intervened in the relationship between Plaintiff
and IL’s clients on an occasional basis, to offer Fuss
advice and to mediate disputes between Robinson and Fuss.
Specifically, Plaintiff points to an occasion when Flowers
directed Fuss to retrieve and administer medicine to
Robinson for a burn to his hand. (Flowers Dep. at 74-76.)
Page 17

Applying the nine-factor test outlined in Haywood v.
Barnes, the Court determines that Defendants were not a
joint employer of Plaintiff Fuss. The economic reality of
the relationships at issue is that Billy Dixon and Barry
Robinson controlled Plaintiff’s employment for their
primary benefit, and Dixon and Robinson paid Plaintiff and
maintained her employment records. Defendants supplied
funds to reimburse Dixon and Robinson for the cost of
obtaining a personal assistant so that they, as disabled
persons, could hope to live independently. This
reimbursement feature, which is the aspect that most
resembles the action of an employer, is not enough in the
face of all of the control exercised by, and benefits
realized by Dixon and Robinson, to convert Defendants into
a joint employer. Under Tennessee Coal, Defendants did not
exercise sufficient control over the activities of
Plaintiff Fuss, or receive sufficient primary benefit, to
render Defendants an “employer.” This is especially true
where, as here, the express agreement and voluntary
understanding of all parties, including Plaintiff Fuss, was
that Fuss was employed by disabled persons Dixon and
Robinson as a part of their attempt to live independently,
including the hiring and supervision of such personal
assistants as were necessary to their maintenance and

At oral argument, Plaintiff maintained on the one hand that
the Court can find the State to be Plaintiff’s employer in
this case without that finding impacting the IL program as
a whole. On the other hand, Plaintiff maintains that the
“economic reality” that should dictate the outcome of this
case is that IL cannot achieve its mission — making
disabled Page 18 persons independent — unless it is
able to ensure that its clients have personal caregivers.
Plaintiff’s argument, taken to its logical conclusion,
would place numerous others — including the owner of
the residence and the federal government — in
practically the same position as Defendants. The Court
finds that, on the evidence presented, there is nothing
fundamentally different about how IL handled this case and
how it handles other cases. The goal of the program is to
enable the client to perform every act as an employer,
independently. All of the evidence here is that Defendants
stayed within the bounds of its program, and no reasonable
juror could find that Defendants functioned as Plaintiff’s
joint employer.


For the foregoing reasons, the Court finds as a matter of
law that an employer-employee relationship did not exist
between Defendants and Plaintiff.

Accordingly, IT IS ORDERED that Defendants’ motion for
summary judgment (Pleading No. 19) is GRANTED and
Plaintiff’s claims are dismissed in their entirety. A
separate judgment will be entered contemporaneously with
this Memorandum Opinion and Order. Page 1