This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).




James W. Milsap,



Arkay Construction Company, et al.,


Filed December 30, 1997


Harten, Judge

Hennepin County District Court

File No. CT-96-13291

James W. Milsap, 1106 Kilburn St., St. Paul, MN 55103 (appellant pro se)

Barbara A. Burke, Susan L. Miller, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318 (for respondents)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.



Appellant James W. Milsap alleges that respondent Arkay Construction Company discriminatorily discharged him from employment because of race. The district court granted Arkay summary judgment, finding no employment relationship between Milsap and Arkay. We affirm.


Arkay, a general contractor, subcontracted with Gardner-Stone Company (GS) for mechanical work on a school renovation project. GS employed Milsap, an African-American, as the project foreman; as such, Milsap was responsible, under the supervision of GS, for the performance of the subcontract. GS's work began in June 1996 and was to be finished before school started in September 1996. In August, Arkay became concerned that the work was behind schedule and could not be finished by the time school was to start. Beginning on August 9, 1996, Arkay wrote GS a series of letters regarding its allegedly substandard and untimely workmanship. Believing that Milsap was part of the problem, Arkay encouraged GS to discontinue Milsap's services. On August 19, GS ordered Milsap off the job site and terminated his employment. On August 23, Arkay cancelled the GS subcontract. Milsap claims that Arkay induced his termination because he was African American. The district court granted Arkay summary judgment because Milsap failed to prove that he was employed by Arkay. This appeal followed.


On appeal from summary judgment, we review the record to answer two questions: (1) whether any genuine issues of material fact exist, and (2) whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We review the evidence in a light most favorable to the nonmoving party to ascertain whether the evidence raises a genuine issue of material fact as to the existence of an employment relationship between the parties. Midwest Sports Marketing, Inc. v. Hillerich & Bradsby of Canada, Ltd., 552 N.W.2d 254, 260 (Minn. App. 1996), review denied (Minn. Sept. 20, 1996).

Midwest Sports addressed a similar issue; we held that the most important factor in determining an employer-employee relationship "is the right * * * of the employer to control the details of the work." Id. (quoting Hunter v. Crawford Door Sales, 501 N.W.2d 623, 624 (Minn. 1993)); see also Minn. R. 5224.0330 (1995) (Minnesota Department of Labor and Industry's independent contractor rule indicating right to control means and manner of performance most significant factor in determining employment relationship).

The alleged employer in Midwest Sports was a manufacturer who entered into a sales agreement with a dealer. Midwest Sports, 552 N.W.2d at 258. When the manufacturer later cancelled the sales agreement, the dealer's employees sued the manufacturer for age discrimination, claiming that the manufacturer was their real employer. Id. at 259. The facts established that the manufacturer exerted substantial control over how the dealer's employees performed their daily functions; it required that they follow instructions in the manufacturer's sales manual, check daily their voice mail messages, travel to the manufacturer's sales meetings, participate without compensation in product development, and help manage the manufacturer's booth at sports shows. Id. at 260. The district trial court held that no employment relationship existed between the dealer's employees and the manufacturer. Id. at 260. We affirmed, holding as a matter of law that although the manufacturer monitored the quality of representation its products received, that activity insufficiently controlled the means and manner of the dealer's employee's performance to establish an employment relationship. Id. at 260-61.

Milsap's evidence of an employment relationship is less extensive than that offered by appellants in Midwest Sports. Milsap's complaint, consistent with the record, acknowledges that he was hired, supervised, and compensated by GS, not Arkay. Cf. Streiff v. Lundgren, 393 N.W.2d 408, 409 (Minn. App. 1986) (holding no employment relationship existed where individual, among other things, offered no proof that he was hired by purported employer). As the GS foreman, Milsap was in charge of the firm's day-to-day work at the project. He hired workers, supervised their work, and ordered materials for the performance of the GS subcontract. In early August, having become concerned that the work was substandard and was not going to be completed on time, Arkay wrote to GS suggesting that it remove Milsap from the project. Arkay itself did not have the power to remove Milsap. Whereas Arkay had the ability to cancel its contract with GS, it had no control over GS employees. Accordingly, we conclude that the facts asserted by Milsap, like those alleged by the appellants in Midwest Sports, do not raise a genuine issue of material fact as to the existence of an employment relationship between Milsap and Arkay.

We affirm the district court's summary judgment for Arkay. In light of our holding, we need not address other issues raised by Milsap.