Anne WAISGERBER, Plaintiff-Appellant, v. CITY OF LOS ANGELES; Sean Kane, an individual, and in his official capacity, Defendants-Appellees.
No. 09-56131.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 6, 2010. Filed Dec. 15, 2010.
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On appeal, Lee presented evidence challenging the independence and adequacy of In re Dixon at the time of Lee‘s procedural default. We remand this question to the district court to permit the Warden to submit evidence to the contrary, and for consideration by the district court in the first instance. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir.2003). Each party shall bear its own costs.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Cheryl Konell Ruggiero, Konell Ruggiero & Konell, Los Angeles, CA, for Plaintiff-Appellant.
Before: TROTT and WARDLAW, Circuit Judges, and BREWSTER, Senior District Judge.*
MEMORANDUM**
Anne Waisgerber appeals from the district court‘s judgment dismissing with prejudice her action alleging violations of
To state a valid claim under § 1983 for sex discrimination, Waisgerber must be protected by Title VII of the Civil Rights Act of 1964. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.1991). Title VII prohibits employers from discriminating against employees on the basis of sex.
We have previously considered whether an unpaid volunteer can meet the definition of “employee” as used in the Americans with Disabilities Act and the Age Discrimination in Employment Act. In Fichman v. Media Center, 512 F.3d 1157, 1158 (9th Cir.2008), we held that the directors of the board of a non-profit organization were not employees. One of the factors we considered in our analysis was the directors’ lack of compensation:
Media Center does not hire or fire its directors: the Board selects its own members. The directors each have full-time jobs independent of Media Center, and are not compensated by Media Center. Neither the travel reimbursement nor the food supplied at Board meetings rises to the level of compensation. The personal satisfaction and professional status several directors reported gaining
from their positions with Media Center are typical benefits of volunteer work.
The lack of remuneration was not dispositive, however. We also considered evidence that the directors
do not share in the day-to-day responsibilities of Media Center staff, but rather spend approximately two to four hours a month on Media Center work. The Board is governed by bylaws that the Board itself adopts. The Board generally operates as a democracy. That the Board has created a system of self-governance does not place any individual director in the position of subservience contemplated by the conventional master-servant relationship.
Id. at 1160-61. As evidenced by our discussion in Fichman, the fact that a person is not paid a salary does not necessarily foreclose the possibility that the person is an “employee” for purposes of federal statutes, including Title VII. See id. at 1161 (“Most courts consider the definition of ‘employee’ to be uniform under federal statutes where it is not specifically defined....“).
Other circuits have taken a similar approach. See, e.g., United States v. City of New York, 359 F.3d 83, 92 (2d Cir.2004) (“[R]emuneration need not be a salary, but must consist of substantial benefits not merely incidental to the activity performed“) (internal citation and quotation marks omitted); Pietras v. Bd. of Fire Comm‘rs of the Farmingville Fire Dist., 180 F.3d 468, 471-73 (2d Cir.1999) (holding that an unpaid firefighter was an employee under Title VII because she received a retirement pension, life insurance, death benefits, disability insurance, and limited medical benefits); Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 221-22 (4th Cir.1993) (finding Title VII coverage of a volunteer firefighter to be a disputed issue of fact where volunteer received death and disability benefits, scholarships for dependent children upon death in the line of duty, life insurance, and certain tax-exemptions); cf. Jacob-Mua v. Veneman, 289 F.3d 517, 521 (8th Cir.2002) (holding that an unpaid volunteer researcher was not an employee under Title VII because she did not receive annual or sick leave, retirement benefits, or insurance benefits).
Like Title VII, California‘s Fair Employment and Housing Act (FEHA) protects employees from sex discrimination.
It is possible Waisgerber can amend her complaint to allege the “substantial benefits” necessary to make her an employee under Title VII or FEHA. For the same reason, an amendment could save her claim under
Waisgerber‘s remaining claims are not futile as a matter of law. Her due process claims may be viable if she is entitled to certain benefits stemming from her position as a reserve officer, Portman v. County of Santa Clara, 995 F.2d 898, 906 (9th Cir.1993), or if the LAPD‘s charge against her is “sufficiently serious to stigmatize or otherwise burden [her] so that [she] is not able to take advantage of other employment opportunities,” id. at 907 (in
Given the record in this case, as well as the extraordinary and tragic circumstances presented, we conclude upon de novo review that the First Amended Complaint might be saved by amendment. See Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir.2004) (discussing the standard of review of a dismissal without leave to amend). We therefore remand to the district court for further proceedings consistent with this decision.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
Each party shall bear its own costs.