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Date: 06-27-2018

Case Style:

Anthony E. Simpkins v. DePage Housing Authority

Northern District of Illinois Courthouse - Chicago, Illinois

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Case Number: 17-2685

Judge: Bauer

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Kim Hilton and David Fish

Defendant's Attorney: Steven Blair Borkan, Timothy P Scahill, Graham P. Miller, Nicholas Kenton Fedde

Description: Anthony Simpkins sued the DuPage
Housing Authority and DHA Management, Inc. (collectively,
DHA), alleging various violations of the Fair Labor Standards
Act (FLSA), the Illinois Minimum Wage Law (IMWL), the
Illinois Employee Classification Act (IECA), the Illinois
2 No. 17‐2685
Prevailing Wage Act (IPWA), and the Family and Medical
Leave Act (FMLA). On cross‐motions for summary judgment,
the district court held that Simpkins was not an employee of
DHA, but rather an independent contractor. Therefore, it
granted summary judgment in favor of DHA as to the federal
claims and relinquished jurisdiction over the state law claims.
Because there are genuine disputes of fact that are material to
the determination of Simpkins’ employment status, we reverse
and remand.
Simpkins began working for DHA in November 2009. He
and DHA entered into an agreement titled “Independent
Contractor Agreement,” with an expected completion date of
June 2011. The contract stated that his duties were to include
“general labor as needed” to complete the rehabilitation of
vacant properties that were part of DHA’s Neighborhood
Stabilization Program to make them suitable for new occupants.
In that role, he performed carpentry, maintenance, and
handyman work such as demolition, remodeling, removing
fixtures, and discarding trash.
In 2011, the rehab work slowed down and Simpkins began
working primarily at Ogden Manor, a townhome community
for which DHA served as the on‐site management. He performed
much of the same work, but eventually focused
specifically on maintenance work. Ogden Manor’s property
manager and maintenance supervisor, who were DHA
employees, gave Simpkins his list of job duties and prioritized
the order in which he needed to complete those tasks.
No. 17‐2685 3
In May 2012, Simpkins and DHA entered into another
“Independent Contractor Agreement.” This agreement described
the scope of work as “general labor for maintenance”
at Ogden Manor. The agreement originally stated that the
expected completion date for that work was July 2012. However,
that date was later crossed out by hand and replaced with
“To Be Determined.” Simpkins continued to work at Ogden
Manor until May 2015.
From November 2009 through May 2015, Simpkins worked
full‐time and exclusively for DHA. Pursuant to DHA’s
instructions, Simpkins reported his hours by submitting
invoices, and he was paid bi‐weekly via paper check. DHA
issued Simpkins 1099‐MISC tax forms to file his taxes, while
others whom DHA considered employees were issued W‐2
forms. Simpkins was aware that DHA considered him an
independent contractor, and he repeatedly requested, to no
avail, that his supervisors convert him to a regular employee.
DHA did not provide him with pension, insurance, or other
similar fringe benefits.
In May 2015, Simpkins was injured in a car accident, after
which his relationship with DHA ended. He filed this lawsuit
in October 2015, claiming that DHA had repeatedly failed to
pay him overtime, and that DHA was required to provide him
with certain disability benefits. The parties filed cross‐motions
for summary judgment. The district court granted DHA’s
motion and ruled that Simpkins was not an employee of DHA
under the FLSA. Accordingly, it granted DHA’s motion as to
4 No. 17‐2685
the federal claims1 and relinquished jurisdiction of the state
law claims.
A. Legal Standards
Summary judgment is appropriate only where there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). When
ruling on a motion for summary judgment, “[t]he court should
neither look the other way to ignore genuine issues of material
fact, nor strain to find material fact issues where there are
none.” Sec’y of Labor, U.S. Dep’t of Labor v. Lauritzen, 835 F.2d
1529, 1534 (7th Cir. 1987) (internal quotation marks and citation
“The Supreme Court has instructed the courts to construe
the terms ‘employee’ and ‘employer’ expansively under the
FLSA.” Vanskike v. Peters, 974 F.2d 806, 807 (7th Cir. 1992)
(citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326
(1992)). The conclusion of whether an individual qualifies as an
employee under the Act requires an examination of the totality
of the circumstances, with the ultimate goal of determining the
“economic reality of the working relationship.” Id. at 808
(citations omitted). The FLSA considers employees those “who
as a matter of economic reality are dependent upon the
1 In his response to DHA’s motion for summary judgment, Simpkins
conceded that dismissal of his FMLA claim was appropriate. Accordingly,
the only question before us now is whether the court was correct to grant
summary judgment on his FLSA claim.
No. 17‐2685 5
business to which they render service.” Lauritzen, 835 F.2d at
1534 (internal quotation marks and citation omitted).
In Lauritzen, we compiled a list of factors “to assist in
determining the true nature of the relationship,” while explaining
that “no criterion is by itself, or by its absence, dispositive
or controlling.” Id. at 1534. It is also important to note that the
Lauritzen factors are not the exclusive means by which the
ultimate determination can be made. See, e.g., Berger v. Nat’l
Collegiate Athletic Ass’n, 843 F.3d 285, 291 (7th Cir. 2016) (“We
have declined to apply mulitfactor tests in the employment
setting when they ‘fail to capture the true nature of the relationship’
between the alleged employee and the alleged employer.”)
(quoting Vanskike, 974 F.2d at 809). Instead, the
inquiry is aimed at determining the economic reality of the
working relationship by examining the totality of the circumstances.
Id. at 290.
The posture of this case, as well as the parties’ citations in
support of their preferred standards of review, present an
opportunity for clarification of those standards, which is both
long overdue and critical to the result here. In Lauritzen, we
explained that “the determination of workers’ status is a legal
rather than a factual one,” meaning it is subject to de novo
review. 835 F.2d at 1535. We also noted, however, that the
underlying factual findings that lead to that legal determination
are to be reviewed for clear error. Id.
To explain that distinction, we cited the Fifth Circuit’s
decision in Brock v. Mr. W Fireworks, 814 F.2d 1042 (5th Cir.
1987). See Lauritzen, 835 F.2d at 1535. In that case, after outlining
a similar multifactor test, the Fifth Circuit explained that
6 No. 17‐2685
there were three types of findings relevant to the determination
of employment status: 1) “historical findings of fact” that
underlie a finding regarding the relevant factors; 2) findings on
the factors themselves, which are based on inferences drawn
from the historical facts; and 3) the ultimate legal conclusion
based on those two types of factual findings. Mr. W Fireworks,
814 F.2d at 1044–45. The court concluded that because the first
two types of findings were factual in nature, they are subject to
clear error review, while the third is subject to de novo review.
That analysis, however, has limited applicability in the
context of reviewing a ruling on a motion for summary
judgment. Mr. W Fireworks was before the Fifth Circuit
following a three‐day bench trial, during which the district
court acted as the trier of fact and resolved all disputed issues.
Id. at 1043. By contrast, on summary judgment, a district court
makes no factual findings of its own. Instead, it is required to
construe the facts in the light most favorable to the nonmoving
party and identify, but not resolve, material factual disputes.
Accordingly, a ruling on summary judgment does not present
the same types of factual findings to which the court was
referring in Mr. W Fireworks.
To summarize then, our task here is to determine whether
the district court was correct in concluding that there were no
disputes of fact material to the determination of Simpkins’
employment status, and that DHA was entitled to judgment as
a matter of law. We review that conclusion de novo, and
because the court granted DHA’s motion, we review the facts
in the light most favorable to Simpkins. Selective Ins. Co. of S.C.
v. Target Corp., 845 F.3d 263, 266 (7th Cir. 2016).
No. 17‐2685 7
B. Disputed Factual Issues
The record in this case abounds with factual disputes that
are material to the determination of the true relationship
between Simpkins and DHA. As we have noted, none of
the individual factors set forth in Lauritzen and its progeny
are dispositive of the ultimate determination, which is the
economic reality of the relationship. In light of that, the
discussion that follows should not be construed as exhaustive
of either the factors that may be relevant to determining the
parties’ true economic relationship or the specific factual issues
that remain unresolved.
The first factor the district court analyzed in this case is the
nature and degree of control the putative employer exercised
over the manner in which the putative employee performed his
work. See Lauritzen, 835 F.2d at 1535. On this point, the record
presents numerous competing facts. For example, DHA
assigned Simpkins to work specifically at the Ogden location
and set his schedule. Simpkins states that he regularly worked
from 8:30 a.m. to 4:30 p.m., but the parties dispute whether
DHA required him to work those set hours. Additionally,
DHA assigned Simpkins specific projects and dictated the
order in which he was to complete them. DHA argues that
Simpkins had the autonomy to determine the manner in which
those tasks were completed after they were assigned. However,
the extent and effect of that autonomy remains in dispute,
particularly in light of the other ways in which DHA was in
control of Simpkins’ work and employment. Considering those
competing inferences in the light most favorable to Simpkins,
a reasonable trier of fact could find that DHA’s control over
8 No. 17‐2685
Simpkins weighs in favor of a typical employer‐employee
There are also disputes in the record when it comes to
Simpkins’ investment in the tools, equipment, and materials
required to perform his work. See id. (listing “the alleged
employee’s investment in equipment or materials required for
his task” as a factor to be considered). Simpkins maintains that
DHA purchased virtually everything he required, at times
going so far as to say that, after 2009, DHA supplied 99% of the
tools and 100% of the materials he used. He also cites deposition
testimony from DHA’s executive director explaining that
DHA did not expect Simpkins to purchase his own materials.
However, as DHA points out, some of Simpkins’ allegations on
this point are contradicted by his tax returns, in which he
itemized certain purchases of materials in order to receive
deductions. Clearly, there is a factual dispute as to the origins
of the tools, materials, and equipment Simpkins regularly used
on the job, and while not dispositive by itself, such a dispute is
certainly material to the ultimate question.
Another factor the district court looked to is whether
specialized skill was required to complete the work. See id.
(listing “whether the service rendered requires a special skill”
as a relevant factor). On this point, the district court correctly
found that the record presents competing facts. Simpkins notes
that he never held any specialized licenses and only performed
rudimentary tasks that did not require special skill. He also
points out that DHA often hired other individuals to do
specialized work that he was not qualified to do. On the other
hand, DHA notes that, prior to working for DHA, Simpkins
had already acquired certain carpentry skills that he needed to
No. 17‐2685 9
perform much of the rehab work he did. Clearly, whether
Simpkins had specialized skills, as well as the extent to which
he employed them in performing his work, are issues that
remain in dispute.
Finally, we turn to the factual ambiguities regarding the
existence and nature of the parties’ contracts. The district court
pointed out that the contracts were labeled “Independent
Contractor Agreement” and found that Simpkins’ compliance
with certain material terms of those contracts indicated his
understanding that he was, in fact, an independent contractor.
For example, the court noted that the contracts required
Simpkins to obtain his own worker’s compensation and
liability insurance coverage, which he did until January 2012.
It did not, however, address the impact, if any, of the fact that
after that date, Simpkins did not have any such coverage of his
own, despite signing another contract and continuing to work
at DHA for three more years. The court’s opinion also leaves
unanswered the question of how long and to what extent the
contracts actually governed the parties’ relationship. The
second contract stated that its expected completion date was
July 2012, which was then crossed out in favor of “To Be
Determined.” Simpkins continued to work at DHA until May
2015, and it is unclear whether the parties intended that
agreement to be open ended or when, if ever, a completion
date was determined and reached. Clearly, there are material
issues of fact as to the nature of these contracts that must be
resolved before the court can properly determine the impact
they had on the overall economic reality.
In sum, the summary judgment record presents numerous
factual disputes that are material to the determination of the
10 No. 17‐2685
true economic relationship between Simpkins and DHA.
Because those disputes are not appropriate for resolution at the
summary judgment stage, the court erred in concluding that
Simpkins was not an employee under the FLSA as a matter of

Outcome: For the foregoing reasons, the district court’s judgment is
vacated, the dismissed state law claims are reinstated, and the
case is remanded for a trial to conclusively establish the facts
surrounding the parties’ employment relationship.

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