More and more employers are relying on staffing agencies to fill certain jobs. But, many employers retain so much control that they remain the employers in all but name. So, if the client employer is the employer in fact, what would be the status of the staffing agency? The Fifth Circuit addresses that issue in Nicholson v. Securitas Security Services USA, Inc., No. 15-10582 (7/18/2016). Helen Nicholson sued both the staffing agency, Securitas, and the client employer, Fidelity. But, Fidelity settled early in the lawsuit. Securitas moved for summary judgment, which was granted. Ms. Nicholson was a receptionist for Fidelity. She was 83 years of age. She was well-liked in that position. Yet, Fidelity asked that she be removed. Securitas placed a 29 year old woman in her place. Securitas then claims it could not find another position for Ms. Nicholson and she was terminated ten days later. The employee filed suit for age discrimination.

Securitas first claims it was not Ms. Nicholson’s employer. Yet, the contract it signed with the employee clearly identifies Securitas as her employer. And, in its answer to the Plaintiff’s Complaint, the staffing agency alleged that it was her employer. So, the higher court did not apply the “right to control” test. It simply found that the employer had already admitted it was her employer.

The discussion then turns to the evidence of pretext. Securitas argued that it was not aware of any discrimination by Fidelity. Fidelity simply asked them to place someone else in the position. Securitas management testified they they never questioned a client employer. But, the Fifth Circuit, relying on its decision in Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), noted that a staffing agency participates in a discriminatory action if it knew or should have known about the discrimination. I previously wrote about the decision in Burton here.

The plaintiff conceded in her brief that she had no evidence that Securitas knew Fidelity’s action was based on a discriminatory motive. Instead, she argued that Securitas should have known the action was discriminatory. The plaintiff pointed out Securitas’ own policies which require counseling for substandard performance. There was no counseling when Fidelity asked that Ms. Nicholson be removed. Too, there was no investigation as to the reasons for the move. Securitas management did not ask why the move was necessary. Although, the Securitas manager also testified that it should look into the reasons for a complaint. The manager said they should “verify” the reason for a termination. So, construing the evidence in favor of the non-movant, Securitas failed to follow its own procedures in looking into the reason for the change in receptionist. So, the court reversed the summary judgment as to the age claim and the request by by Fidelity to move Ms. Nicholson.

Regarding the termination by Securitas, the court affirmed summary judgment. Ms. Nicholson was fired essentially because she did not obtain her security card and she testified she could not see herself performing a traditional security position. See the Fifth Circuit decision here.