Case Information
*1 United States Court of Appeals
For the First Circuit
Nos. 02-2187, 02-2188
VICTORIA LIS ALBERTY-VÉLEZ, Plаintiff, Appellant/Cross-Appellee, v.
CORPORACIÓN DE PUERTO RICO PARA LA DIFUSIÓN PÚBLICA, D/B/A WIPR CHANNEL 6, Defendant, Appellee/Cross-Appellant, JORGE INSERNI, PERSONALLY AND AS EXECUTIVE DIRECTOR, WILLIAM DENIZARD; COCO SALAZAR; CONJUGAL PARTNERSHIP DENIZARD-SALAZAR; CONCEPTO CREATIVO; MEMBERS OF THE BOARD OF DIRECTORS OF THE CORPORACIÓN DE PUERTO RICO PARA LA DIFUSIÓN PÚBLICA, D/B/A WIPR CHANNEL 6; JOHN DOE, 96CV1487; RICHARD ROE, 96CV1487; A TO Z INSURANCE CO.; XYZ INSURANCE CO.,
Defendants. APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO [Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges .
Alberto G. Estrella with whom William Estrella Law Offices, PSC was on brief, for appellant.
James D. Noël, III with whom McConnell Valdès was on brief, for appellee.
March 2, 2004
*2
HOWARD, Circuit Judge . This pregnancy and gender discrimination case is before us for the second time. See Alberty- Vélez v. Corporación de Puerto Rico Para La Difusión Pública, 242 F.3d 418 (1st Cir. 2001) ("Alberty-Vélez I"). Despite its complicated history, this second appeal presents a familiar question--did the district court correctly grant summary judgment for the defendant? We conclude that summary disposition was appropriate because a reasonable fact finder could only conclude that the plaintiff was an independent contractor and therefore not covered by Title VII or the Puerto Rico anti-discrimination laws. Accordingly, we affirm.
I. Background and Prior Proceedings Victoria Lis Alberty-Vélez brought suit against Corporación de Puerto Rico para la Difusión Pública ("WIPR") for pregnancy and gender discrimination, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, P.R. Laws Ann. Tit. 29, 146 et seq., and P.R. Laws Ann. Tit. 29, 467 et seq. Because our decision rests on Alberty's independent contractor status, we limit our factual summary to the undisputed facts concerning the parties' relationship. [1]
*3 Alberty's relationship with WIPR, a Puerto Rico television station, began in 1993, when she agreed to host its new show "Desde Mi Pueblo." This program profiled municipalities throughout Puerto Rico by presenting interviews with residents and interesting information about the featured community. The show had three hosts, Alberty, Luis Antonio Rivera, and Deborah Carthy Deu.
Alberty appeared on the program from July 1993 until November 1994. Instead of signing a single contrаct to host the show, Alberty signed a new contract for each episode. Each contract obligated Alberty to work a certain number of days (usually two) filming the show in a specific town. Under the parties' arrangement, Alberty was not obliged to film additional episodes beyond the one for which she contracted, and WIPR was not obliged to enter into contracts with Alberty for additional episodes.
Filming of the show did not occur weekly, and Alberty was not obligated to WIPR during off weeks. On the days that Alberty filmed the show, she was on-call for the entire day. During her "оff" time, in addition to preparing for future episodes of "Desde Mi Pueblo", Alberty worked other jobs, including acting on another WIPR show entitled "Será Acaso Este Su Caso," hosting a concert for the Piano Suzuki Company, and acting as the master of ceremonies *4 for the graduation of the Academia Infantil Nairda Hernández. [2] Alberty's contracts did not permit WIPR to require her to do work other than film "Desde Mi Pueblo."
While filming "Desde Mi Pueblo," Alberty was directed by William Denizard, the show's producer. He set the location and hours of filming, and established the basic content оf the program. WIPR provided the equipment for filming (i.e., lights, camera, and makeup). Alberty was responsible for providing her clothing, shoes, accessories, hair stylist and the other services and materials required for her appearance on the show. She could either purchase these services and materials herself or locate sponsors to provide them for her. WIPR had to approve any sponsors that Alberty wished to use.
Alberty received a lump sum payment for each episode of "Desde Mi Pueblo" that she filmed, rаnging from $400 to $550. To receive payment, Alberty presented a signed invoice to WIPR showing that she had performed the agreed upon work. WIPR did not withhold income or social security taxes from Alberty's check and did not provide Alberty with benefits such as health insurance, life insurance, retirement, paid sick leave, maternity leave, or vacation. On her tax return, Alberty described her income as *5 deriving from professional services rendered, and WIPR did not provide Alberty with an Internal Revenue Service Form W-2. After her separation, Alberty received unemployment compensation from the Puerto Rico Department of Labor indicating that this agency considered her WIPR's employee.
Alberty's employee status has been contested throughout the course of this litigation. On December 24, 1998, the district court granted partial summary judgment for Alberty on this issue, see Fed. R. Civ. P. 56(d), declaring her an employee of WIPR. At the subsequent trial, the district court reversed course and granted WIPR's motion for judgment as a matter of law, see Fed. R. Civ. P. 50, because Alberty was an independent contractor. In Alberty-Vélez I, 242 F.3d at 421-26, we vacated this judgment because the district court did not provide Alberty with notice of its intention to revisit the employee/independent contractor issue at trial, thereby denying Alberty a fair opportunity to contest this issue.
On remand, the parties consented to assigning the case to a magistrate judge. After the case was reassigned, WIPR filed a motion for summary judgment on the employee/independent contractor issue. Alberty opposed the motion both on the merits and on the ground that the issue should not be reconsidered in light of the earlier ruling dеclaring Alberty an employee. The district court *6 entertained WIPR's summary judgment motion but denied it because of factual disputes. [3]
Alberty and WIPR also cross-moved for summary judgment on the discrimination issue. The district court determined that there was no evidence of discriminatory animus by WIPR toward Alberty and accordingly entered judgment in WIPR's favor. Alberty appealed. [4]
II. Summary Judgment Standard
We review summary judgment rulings de novo. See Serapion v.
Martínez ,
We may affirm a summary judgment ruling on any basis
apparent from the record. See Fabiano v. Hopkins,
III. Analysis
Title VII protects employees from discrimination based on
pregnancy and gender. See 42 U.S.C. § 2000e(k); Cal. Fed. Sav. &
Loan Ass'n v. Guerra, 479 U.S. 272, 277 (1987). The statute
*8
defines an "employee" as "an individual employed by an employer."
42 U.S.C. § 2000e(f). This definition "is completely circular and
explains nothing." Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318, 323 (1992); Alberty-Vélez I,
This circuit has yet to identify the test to apply to determine whether an individual meets Title VII's definition of "employee." Relying on Darden, we have applied the "common law agency test" in cases arising under other federal anti- discrimination statutes containing the same definition of "employee" as Title VII. [6] See Dykes, 140 F.3d at 38 (applying
common law test under Americans with Disabilities Act); Speen v.
Crown Clothing Corp. , 102 F.3d 625, 631 (1st Cir. 1998) (applying
common law test under ERISA and Age Discrimination Employment Act).
We see no reason to apply a different test under Title VII and
*9
therefore will apply the common law test to determine whether
Alberty was WIPR's employee or an independent contractor. See,
e.g., Farlow v. Wachovia Bank of N.C.,
Under the common law test, a court must consider: the hiring party's right to control the manner and means by which the product is accomplished. Among other factors relevant to this inquiry are the skills required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and thе tax treatment of the hired party.
Dykes, 140 F.3d at 37-38 (quoting Darden, 503 U.S. at 323-24).
"The test provides 'no shorthand formula or magic phrase that can
be applied to find the answer, . . . all of the incidents of the
relationship must be assessed and weighed with no one factor being
*10
decisive.'" Id. at 37 (quoting Darden, 503 U.S. at 324).
[7]
However, in most situations, the extent to which the hiring party
controls "the manner and means" by which the worker completes her
tasks will be the most important factor in the analysis. See
Eisenberg,
At oral argument, Alberty conceded that there were no
disputed issues of material fact concerning employment status. In
such a case, a court may decide the employee/independent
contractor question as a matter of law if the factors point so
favorably in one direction that a fact finder could not reasonably
reach the opposite conclusion. See Dykes, 140 F.3d at 38-39
(affirming grant of summary judgment concluding individual was
independent contractor); Speen,
Several factors fаvor classifying Alberty as an
independent contractor. First, a television actress is a skilled
position requiring talent and training not available on-the-job.
Cf. Aymes v. Bonelli,
Second, Alberty provided the "tools and instrumentalities" necessary for her to perform. Specifically, she provided, or obtained sponsors to provide, the costumes, jewelry, and other image-related supplies and services necessary for her appearance. [8]
Alberty disputes that this factor favors independent
contractor status because WIPR provided thе "equipment necessary
to tape the show." Alberty's argument is misplaced. The
equipment necessary for Alberty to conduct her job as host of
"Desde Mi Pueblo" related to her appearance on the show. Others
provided equipment for filming and producing the show, but these
*12
were not the primary tools that Alberty used to perform her
particular function. If we accepted this argument, independent
contractors could never work on collaborative projects because
other individuals often provide the equipment required for
different aspects of the collaboration. See Hanson v. Friends of
Minnesota Sinfonia, 181 F. Supp. 2d 1003, 1008 (D. Minn. 2002)
(stating
that
independent-contractor
musician
provided
"instrumentalities and tools" by providing instrument, even though
symphony provided musical scores, rehearsal facilities, music
stands, and concert schedules), aff'd sub nom. Lerohl v. Friends
of Minnesota Sinfonia,
Third, WIPR could not assign Alberty work in addition to filming "Desde Mi Pueblo." Alberty's contracts with WIPR specifically provided that WIPR hired her "professional services as Hostess for the Program Desde Mi Pueblo." Thеre is no evidence that WIPR assigned Alberty tasks in addition to work related to these tapings. To be sure, Alberty did other work for WIPR by taping episodes of "Será Acaso Este Su Caso"; however, for these engagements, she signed separate contracts and received separate remuneration.
Fourth, the method of payment favors independent
contractor status. Alberty received a lump sum fee for each
episode. Her compensation was based on completing the filming, not
*13
the time consumed. If she did not film an episode she did not get
paid. See Cmty. for Creative Non-Violence v. Reid,
Sixth, Alberty's tax treatment suggests independent
contractor status. Both she and WIPR classified her income as
deriving from professional services rendered rather than wages
earned. See Dykes,
Despite these factors favoring independent contractor
status, Alberty argues that she was WIPR's employee because WIPR
controlled the manner of her work by directing her during filming,
dictated the location of her work by selecting the filming sites,
and determined the hours of her work by requiring her to be on-call
*14
during filming days. While "control" over the manner, location,
and hours of work is often critical to the independent
contractor/employee analysis, it must be considered in light оf the
work performed and the industry at issue. See Cilecek v. Inova
Health Sys. Servs.,
A recent Eighth Circuit case illustrates the point. See Lerohl 322 F.3d 486. In Lerohl , the court considered the employment status of two "regular" musicians in the Minnesota Sinfonia. Id. at 489. The musicians argued that they were employees because the conductor selected the music, scheduled the rehearsals and concerts, and determined the manner in which the music would be played. Id. at 490. The court "emphatically" rejected the argument that the "control" exercised by the conductor necessarily demonstrated the musicians' employee status because "work by independent contractors is often performed to the exacting specifications of the hiring party." Id. Musicians participating in an orchestra are, by necessity, subject to the control and scheduling of the conductor because such control allows the symphony to perform as a single unit. See id. The court concluded that, in these circumstances, the relevant control issue was not whether the conductor could instruct the musicians "where to sit *15 and when to play" but whether the musicians retained the discretion to decline to participate in Sinfonia concerts and to play elsewhere. Id. at 491.
We think that a similar analysis is apt here. Alberty's
work on "Desde Mi Pueblo" required her to film at the featured
sites at the required times and to follow the instructions of the
director. WIPR could only achieve its goal of рroducing its
program by having Alberty follow these directions. Just as an
orchestra musician is subject to the control of the conductor
during concerts and rehearsals, an actor is subject to the control
of the director during filming. To hold that this sort of control
determines Alberty's status would defy "common sense" as it would
result in classifying all actors as employees, regardless of the
other aspects of the relationship. Lerohl,
*16 Like the musicians in Lerohl, who could decline to play in
future concerts, Alberty could decline to host future "Desde Mi
Pueblo" episodes by refusing to sign additional contracts. It is
undisputed that "Alberty did not have any contractual obligation to
continue working with WIPR and WIPR had no contractual obligation
to continue renewing her contracts." Thus, under the parties'
arrangement, Alberty controlled the extent to which she wished to
commit her professional time to filming "Desde Mi Pueblo." See
Lerohl,
In addition to control over the manner, location and time
of the work, Alberty emphasizes additional facts which she claims
favor employee status. First, she argues that, as a matter of
"economic reality," she was an employee of WIPR because this is the
entity from which she derived most of her income. Some courts have
applied an "economic reality test" to determine employee status
was the dispositive factor in determining that the plaintiff
furniture movers were employees, even though the movers did not
receive W-2 Forms and were ineligible for benefits. The movers in
Eisenberg were hourly, full-time warehouse workers. See id. at
113. The Eisenberg court recognized that the movers held positions
typically occupied by employees but that the employer had
manipulated the benefits and tax treatment factors to favor
independent contractor status. See id. at 119. It refused to
allow such manipulation to cloud the essential employee-character
of the movers' position. See id. Here, there is no evidence of
similar factor manipulation by WIPR. Alberty was a free-lance
professional who was subject to only minimal control. That most of
the other factors (e.g., method of payment, lack of benefits, tax
treatment) favor independent contractor status is consistent with
the limited control exercised by WIPR. See Lerohl,
*17
under Title VII. See Armbruster v. Quinn,
Second, Alberty contends that we should consider the Puerto Rico Department of Labor's determination that she was an "employee" eligible for unemployment compensation as indicating employee status under Title VII. Determining employee status under Title VII is a matter of federal law. See Alberty-Vélez I, 242 F.3d at 421. As such, Alberty's status as an employee for purposes of the Puerto Rico unemployment compensation system is irrelevant to this analysis. See Serapion, 119 F.3d at 988-89 (concluding individual's status as employee under Puerto Rico law is irrelevant to determining whether individual is employee under Title VII).
Third, Alberty contends that her sixteen-month relationship
with WIPR favors classifying her as an employee. Our cases do not
support her assertion. In Dykes, the parties' six-year relationship
did not alter our conclusion that the plaintiff was an independent
contractor. See
Finally, Alberty argues that the facts that WIPR is in business and that her work on "Desde Mi Pueblo" was part of WIPR's business as a television station favor employee status. We agree with Alberty. Under the common law test, these facts support her claim of employee status.
While no one factor is dispositive, it is clear, based on the partiеs' entire relationship, that a reasonable fact finder could only conclude that Alberty was an independent contractor. The parties structured their relationship through the use of set length contracts that permitted Alberty the freedom to pursue other opportunities and assured WIPR that it would not have to pay Alberty for the weeks that it was not filming. See Worth v. Tyer, 276 F.3d 249, 264 (7th Cir. 2001) (noting that "[c]ontracts of a set length often indicate independent contractor status"). Further, the lack *19 of benefits, the method of payment, and the parties' own desсription of their relationship in tax documents all indicate independent contractor status. Alberty's "per-job" arrangement with WIPR is typical of an independent contractor, and we cannot disregard the parties' decision to choose this form of relationship simply because it deprives Alberty of Title VII protection. Alberty has not identified any case law suggesting a different conclusion. [11] Accordingly, we conclude that Alberty was an independent contractor as a matter of law and therefore cannot maintain a Titlе VII action against WIPR. [12]
IV. Conclusion
For the reasons stated above, we affirm the judgment of the district court.
Notes
[1] Our ability to determine the undisputed facts has been hampered by Alberty's failure to file a compliant brief. Alberty failed to provide appendix citations for her recitation of the facts relevant to her employee status argument. See Fed. R. App. P. 28(a)(7). We will resolve any resulting uncertainty against Alberty. See Credit Francais, Int'l v. Bio-Vita, Ltd., 78 F.3d 698, 701 (1st Cir. 1996).
[2] Alberty had a similar lump sum payment arrangement with WIPR for her work on "Será Acaso Este Su Caso." When Alberty performed on both "Desde Mi Pueblo" and "Será Acaso Este Su Caso," she received separate checks for each performance.
[3] Alberty cross-moved for summary judgment on the employee status issue. The district court also denied this motion.
[4] WIPR cross-appealed from the denial of its motion for summary
judgment based on independent contractor status. This was not the
proper procedure. A party may not appeal from a favorable
judgment. See California v. Rooney, 483 U.S. 307, 311 (1987).
WIPR received the entire relief that it sought from the district
court (i.e.
,
favorable judgment on all counts) and therefore cannot
appeal. See Deposit Guaranty Nat. Bank v. Roper,
[5] We reject Alberty's contention that, because the district
court initially granted partial summary judgment declaring Alberty
an employee of WIPR, the magistrate judge to whom the case was
reassigned could not reconsider this ruling later in the
litigation. A partial summary judgment order is not a final
judgment but is merely a pre-trial adjudication that certain issues
are established for trial. See Fed. Deposit Ins. Corp. v.
Massingill,
[6] Darden held that the common law agency test applies to
identify employees under ERISA, which, like Title VII, defines
employee as "any individual employed by an employer."
[7] A court must tailor these factors to the relationship at
issue. Often certain factors will not be relevant to a particular
case, and a court should not consider thеm as favoring either side.
See Eisenberg,
[8] That WIPR reserved the right to approve Alberty's sponsors does not alter this conclusion. A company may require that it provide prior approval before an independent contractor takes an action or associates with an entity that could reflect poorly on the company. Cf. Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 306 (10th Cir. ) (stating that requiring insurance agent to submit advertisements for pre-approval is not necessarily indicative of employee status because company has "substantial interest" in advertising reflecting company standards, even if issued by independent contractor).
[9] Alberty disputes this factor by arguing that, on one occasion, WIPR paid her, even though she could not complete an episode because of a death in her family. While Alberty tries to paint this as a general benefit, she identifies no evidence suggesting that this was anything but a single occurrence. Further, her other testimony contradicts her assertion that there was a policy to pay her when she could not film. As she stated several times, if she did not film an episode she did not get paid.
[10] To further understand our conclusion on the control factor,
it may be useful to distinguish the Second Circuit's decision in
Eisenberg. See
[11] Alberty's reliance on Diana v. Schlosser,
[12] Citing Fernández v. A.T.P.R., 104 D.P.R. 464, 465 (1975), Alberty acknowledges that a similar analysis determines whether she is an employee covered under Puerto Rico's anti-discrimination laws. Because Alberty has not argued for a different conclusion under Puerto Rico law, our conclusion that Alberty is an independent contractor for purposes of Title VII also disposes of her Puerto Rico law claims.