Anne Waisgerber v. City of Los Angeles, 406 F. App'x 150

Waisgerber appeals a district court judgment dismissing with prejudice her § 1983 and state-law claims against the City of Los Angeles and LAPD Captain Kane arising from her termination as a volunteer LAPD Reserve Officer.
She alleges she was terminated because of sex and in retaliation for First Amendment activity challenging a neglect-of-duty charge.
The district court dismissed the First Amended Complaint; the dismissal occurred without the district court or parties knowing counsel was dying of brain cancer.
The panel concludes the dismissal may be salvaged by amendment and remands to permit a Second Amended Complaint.
The court discusses whether unpaid volunteers can be considered employees for Title VII/FEHA purposes based on “substantial benefits,” and notes the Los Angeles Administrative Code’s labeling of reserve officers as non-employees cannot override state statutes.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Waisgerber can state Title VII/FEHA discrimination claims via §1983	Waisgerber seeks Title VII coverage through §1983 for sex discrimination.	No employee status under Title VII/FEHA, thus no Title VII/FEHA claim via §1983.	Remand to potentially save by amendment; employee status may be established.
Whether Waisgerber qualifies as an employee under Title VII/FEHA as a volunteer	Substantial benefits or compensation can render a volunteer an employee.	Volunteer status typically lacks compensation; no employee relationship.	Amendment may plead substantial benefits to create an employee relationship.
Whether California Labor Code § 1102.5 retaliation claim can be saved	Retaliation claim may be viable if employer action followed protected activity.	No viable amendment established under current pleading.	Amendment could support a viable claim if employee status is established.
Whether due process or First Amendment retaliation claims are viable	Due process benefits and public-concern speech protection could sustain claims.	Claims require viable underlying status and protected speech context.	Remand to determine viability with amended facts.

Fichman v. Media Center, 512 F.3d 1157 (9th Cir. 2008) (volunteers can be non-employees for some statutes; remuneration factors matter)
Mendoza v. Town of Ross, 27 Cal. Rptr. 3d 452 (Cal. Ct. App. 2005) (compensation required for FEHA employee status; substantial benefits may suffice)
Murray v. Principal Financial Group, 613 F.3d 943 (9th Cir. 2010) (Title VII employee definition requires a business/employment connection)
Lutcher v. Musicians Union Local 47, 633 F.2d 880 (9th Cir. 1980) (employment connection need not be direct)
Reid v. Community for Creative Non-Violence, 490 U.S. 730 (1989) (an agency approach to employee status in federal statutes)
Portman v. County of Santa Clara, 995 F.2d 898 (9th Cir. 1993) (due process/characterization of benefits contexts in employment claims)
Gibson v. Office of the Attorney General, 561 F.3d 920 (9th Cir. 2009) (First Amendment retaliation where speech concerns public matter)
Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053 (9th Cir. 2004) (standard for reviewing dismissals with leave to amend)
City of New York v. United States, 359 F.3d 83 (2d Cir. 2004) (remuneration need not be salary but substantial benefits)
Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993) (Title VII coverage of volunteers is fact-dependent)
Jacob-Mua v. Veneman, 289 F.3d 517 (8th Cir. 2002) (unpaid volunteer researcher lacked typical employee benefits)