*1 school during 1996-1997 enrolled been it not established claim, he had tion the new document Thu claims year. be not Thu would likely than more credibility assess- the IJ’s altered to Burma. have harmed if returned tortured Thu clarified the document Thu’s findings on ment because the IJ’s upheld BIA The BIA in 1997. enrolled withholding of re- not been had asylum, to entitlement motion, the document finding Thu’s denied moval, protection. and CAT would to Thu and specifically not relate did and the BIA’s Reviewing the IJ’s credibility assess- the IJ’s have not altered substantial the deferential decisions under ment. the evi standard, conclude we evidence not abuse its the BIA did We conclude compelling so record was not dence observed, the IJ the BIA As discretion. fail to could factfinder reasonable that no fact that the accepted aware and See persecution. fear of the requisite find ... resulted “student demonstrations uphold Alanwoko, We the universi- during which long period in a for applications Thu’s the BIA’s denial Moreover, in [Burma].” closed ties were removal, and CAT withholding of asylum, questioning many reasons the IJ listed protection. the IJ importantly, credibility, but Thu’s the Rec- Supplement to D. Motion university letter from not list the did ord2 We enrollment date. concerning Thu’s Open BIA that the Schools agree with the claim Thu’s
Lastly, we address al- not have would Campaign document motion denying his BIA erred the IJ’s decision. tered or, in the alter record supplement the to to the IJ to native, case remand III. CONCLUSION review evidence. We consider additional BIA’s denial of the BIA’s of discretion the petition for an abuse Thu’s review the record or to supplement a motion to is denied. decision Ashcroft, Berte v. the IJ. See remand (citation Cir.2005) 993, 997
omitted). remand if BIA will “[T]he a nature ‘of such
the evidence is be if proceedings
Board is satisfied all with reopened, were [IJ] fore ERNSTER, Plaintiff- Barbara would delays, the new evidence attendant Appellant, ” Id. case.’ the result likely change v. Coelho, N. Dec. 20 I. & (quoting Matter of Defendant-Appellee. LUXCO, INC., (1992)). 464, 473 09-1200. No. deny erred claims the BIA Thu the record supplement his motion Appeals, States Court United Schools “Open entitled with document Eighth Circuit. discusses That document Campaign.” 21, 2009. Oct. Submitted: closed be universities were fact Burma’s 23, 2010. Filed: Feb. However, as ginning December a letter from noted, Thu submitted the IJ Thu indicating had university in Burma
his grant respondent’s mo- We 10, 2009, unknown source. Thu filed un- 2. On December document. this tion to strike from an signed, document unauthenticated *2 Day agreed she In Sherinian, Des argued, West D. Mark exclusive ILP’s would become IA, Moines, appellant. Iowa, in northeastern call- representative Hulett, Des argued, Lynne Debra territory throughout on customers *3 Boyd Harty, on Moines, IA, Frank products. ILP brands and promote brief, appellee. the names and loca- Day provided Ernster LOKEN, Judge, Chief Before territory, in her existing customers tions BYE, Judges. Circuit and MURPHY of new accounts advised her and thereafter re- through ILP’s Day learned about LOKEN, Judge. Chief Ernster State. was lationship with the Inc., Luxco, alleg- Ernster sued Barbara regularly, mak- to visit expected customers in violation wrongful termination were effective- products that ILP ing sure Employment Act Age Discrimination to stock urging customers ly displayed, seq., § 626 et and the (ADEA), 29 U.S.C. distributing pro- products, ILP additional (ICRA), Iowa Code Rights Act Iowa Civil sup- ILP’s materials furnished motional denying Luxco sum- 216. After Ch. Ann. conducting prod- arranging and pliers, and issue of on threshold mary judgment uct demonstrations. or an an Ernster was whether employ- no written ILP and Ernster had contractor, court1 the district independent all Day testified that agreement. ment The jury trial of that issue. ordered understood marketing representatives ILP that Ern- general verdict returned contractors, not they independent were The independent an contractor. ster was “was led testified she employees. Ernster dis- on the verdict court entered employee.” [she] to believe denied her and missing Ernster’s claims marketing representative, Mike Her fellow trial, new based motion for post-judgment him, that, Day hired Ryan, testified when errors, judg- or for instruction alleged on Ryan would be an inde- Day explained that appeals, Ernster ment as a matter law. provide ILP did not contractor. pendent in- alleged issue of arguing primarily the or retirement benefits. Ernster insurance affirm. struction errors. We representatives marketing Ryan testified employee benefits because did not receive Background I. independent people.”2 they “were managed Day owned and Iowa David monthly a fixed sti- paid ILP Ernster (ILP), brokerage Products, Inc. Liquor as a commis- that was not calculated pend and liquor wine company representing also earned commis- sion on sales. She selling products companies their upon monthly or bonuses based sales sions a “control” State of Iowa. Iowa is State ILP products. did particular volumes products to the liquor sell suppliers which taxes from Ernster’s not withhold income State, customers such as which resells to year, Each ILP monthly compensation. See Iowa liquor and retail stores. bars tax Form 1099 her an income sent annual § function was to Ann. 123.22. ILP’s Code income, rather reporting by traveling self-employment suppliers’ brands promote salary wage or stores, reporting than a Form W-2 bars, restaurants, and other liquor preparer tax testified income. Ernster’s the State. around customers Ernster, VIETOR, Though called as a witness D. HONORABLE HAROLD during a side-bar con- court observed Judge district for the Southern United States District Ryan Luxco's best witness. ference of Iowa. District changed “indicates a self-employed that Form 1099 DSC its name to Luxco Decem- Ern- contractor In early [status].” ber 2005. Luxco converted income reported ILP and business ster the Iowa staff to full-time Lux- expense on Schedule C her deductions co employees, requiring existing mar- annual IRS Form 1040. representatives keting apply for new positions. applied and inter- out of and
Ernster worked her home job viewed but was not hired. her travel which were sub- paid expenses, stantial, Luxco terminated her phone position of her contract and the costs cell computer. worked a full-time March 2006. A younger She female took over ILP, though she schedule for also worked part territory. of Ernster’s former This *4 part-time as scheduler and bartender age discrimination lawsuit followed. a local convention center. Ernster testified II. The Instruction Issue
that she
to
least
required
make at
per
that
day,
eleven customer calls
and
age
Ernster alleges
discrimination
Day
in
morning
called her around 7:30
the
in violation of the ADEA and the ICRA.
daily
discuss her
activities.
admit-
to
She
Both
protect employees
statutes
but not
when
partic-
ted
she decided
to call on
contractors. Wortham v.
accounts,
ular
free to start
end
and
Family
1139,
Am.
Ins. Group, 385 F.3d
days
times,
work
her
at different
and did
(8th Cir.2004).
In Nationwide Mutu
have to
fixed
not
work a
number of hours
Darden,
al
Insurance Co. v.
503 U.S.
per
Day
imposed
week.
testified that he
323-24, 112
S.Ct.
projects
issue,
instructed
over
the court
employee
discretion
party’s
hired
of the
work;
meth-
long
factors it
consider
and how
when
role
party’s
hired
“include,
payment;
od of
are not
but
deciding this issue
assistants; wheth-
paying
hiring
and
to,”
aspects
sixteen enumerated
limited
regular busi-
of the
part
work is
er the
Lux-
Ernster and
relationship between
hiring party; whether
ness
error,
committed reversible
The court
co.
business;
provi-
party is
hiring
omitting four of what
argues, by
benefits;
tax
and the
sion of
mandatory Darden
thirteen
calls the
she
party.
of the hired
treatment
factors to fa-
factors;
rewording three
the ICRA define
the ADEA and
Both
evidence;
by improperly
vor Luxco’s
manner as
“circular”
in the same
factors,
multiple
into
dividing three factors
at issue in Darden.
definition
the ERISA
Luxco’s evidence.
unduly emphasizing
630(f);
Ann.
§
Iowa Code
See 29 U.S.C.
Ern
argument,
of this
support
In
1002(6)
§
216.2(6);
compare
§
U.S.C.
repeated
have
correctly notes that we
ster
(ERISA).
Thus,
agree that
parties
multi-factor
referred to the
ly quoted or
to Ern
applies
test
Darden common-law
*5
the com
defining
in Darden in
passage
statutory
age
claims of
discrimina
ster’s
feder
purposes
of various
mon-law test
1140;
Wortham,
F.3d at
385
tion. See
Wortham, 385
statutory claims. See
al
Cas., 307
Farm Bureau
v. So.
Jenkins
(ADEA);
v.
1140-41
Lerohl
Cir.2002).4
F.3d at
(8th
741, 743-45
F.3d
486,
Sinfonia, 322 F.3d
Friends Minn.
of
to
right
the
grants plaintiffs
The ADEA
(8th Cir.) (ADA
VII),
Title
cert.
&
489
any
any
of fact in
such
jury trial “of
issue
a
469,
denied,
983, 124 S.Ct.
157
540 U.S.
626(c)(2).
§
After de-
29 U.S.C.
action.”
Jenkins,
(2003);
1005
if,
structing
jury;
we reverse
Ernster raises this rather common conten-
entirety,
jury
Darden,
viewed
their
in unique
“when
tion
a
Prior
context.
error or
contained an
errors
instructions
many circuits held that whether a party
rights of the
that affected the substantial
was an employee
purposes
of various
11,
Ryther
KARE
parties.”
v.
federal statutes
issue of
law. Dar-
(8th Cir.) (en banc),
denied,
832, 846
cert.
replaced
variety
then
den
a
standards
U.S.
117 S.Ct.
138 L.Ed.2d
that circuit
had
pur-
courts
based on the
(1997).
particular
poses
statutes with the more
uniform
test
common-law
derived from the
Supreme
Darden
Court
em
Agency.
pertinent
Restatement of
A
Re-
that, in
phasized
applying
common-law
statement comment states that if its multi-
test, “all
of the incidents
the relation
ple
provide
relevant
factors
clear infer-
ship
weighed
must be assessed and
with
ence^—(cid:127)
factor being
no one
decisive.” 503 U.S at
Thus,
reject
ster’s contention
relation,
court;
servant
it made
quote
instruction must
all
factors enu
otherwise the
determines
ques-
they
appear
Darden as
in that
merated
tion
after
instruction
court as to
opinion,
not list other relevant
the matters of fact to be considered.
factors. The Darden factors are a nonex
(Second)
§
Restatement
of Agency
list,
inquiry
haustive
and the ultimate
“re
c. Despite
cmt.
rather potent signal
this
tallying
more than
on
quires
simply
factors
issue is one of fact
selecting
side and
the winner on
each
test,
under
common-law
we and most
of a point
Schwieger,
basis
score.”
*6
other circuits have continued to treat
the
Here,
at
F.3d
the district court in
ultimate issue
post-
as one
law. Our
jury
the
must
structed
that it
consider all
standard,
Darden
first articulated in Ber-
concerning
facts and circumstances
Ern
ger Transfer, 85
at
“a
is that
performance
relationship
ster’s work
and
findings
court’s
as to
underly-
district
the
Luxco,
“whether listed above or not.”
accepted
clearly
factors must be
unless
court
listed sixteen factors that relat
erroneous, while review of the ultimate
general
the
ed
Darden factors
the evi
question of employment status is de novo.”
presented by
parties
dence
in a
both
neu
Lerohl,
488;
Schwieger,
See
decisive,”
tral manner. “No one factor is
484; Kirk,
1007;
doxically, approved the submission of that Sufficiency III. Evidence of the Jenkins, jury. to a issue In we reversed the district grant summary judg- court’s that argues further the district ment, concluding that “the determination court erred her motion denying of whether Mr. is an employee Jenkins is judgment as a matter lawof because the law, too close to be as a matter jury’s “clearly verdict was made so erroneous and Mr. unsupported prop- jury the evidence” when Jenkins is entitled to reach the erly using evaluated the Darden this issue.” F.3d at (emphasis factors. on 307 745 inas Jenkins summary judgment,
added). remand, court elude the district On case, think that which are inclined to jury, to the and this we the issue submitted con- independent procedural an jury to be trial is one found Jenkins a bifurcated only evi- appealed but raised tractor. He court has discretion option the district ad- without We affirmed dentiary Ltd., issues. v. Fleet St. adopt. Accord Kirsch was properly the issue dressing whether Cir.1998).5 (2d. However, 149, 171 Bureau v. So. Farm Jenkins submitted. our court en Supreme unless the Court ,(8th Cir. Cas., Fed.Appx. governing principle banc overrules 2005). law, issue is one of ultimate Kirk, case like copyright a Again duty ignore not its the district court the em- Reid, court the district submitted jury’s verdict aspect to review a jury, which returned issue to ployee novo.6 de computer program- that a verdict general Here, establishing the bifurcated reversed, with- employee. was an We mer counsel, court advised procedure, trial addressing degree “the of deference out jury “if verdict objection, that without verdict, jury’s that should be shown” in favor of the [employment status] on undisputed evidence largely because the defendant, In the end of it.” other that’s the com- compelled a determination words, that the fully counsel were warned was an puter programmer jury’s verdict as would treat court F.3d at 1007-09. contractor. 188 object, and her binding.7 Ernster did not case, expressly court In this district as a motion for post-judgment submitting the em- relied on Jenkins ap as she does on argued, matter of law jury general to the ployee issue clearly erro peal, that the verdict objected, once party so verdict. Neither evidence, by the unsupported neous this not consider whether again we need reviewing jury’s find standard for Because the ultimate issue is was error. court, we ings of fact. Like the district law, under Dar- one of issue evidence, viewed ample there was conclude by the court on may often be decided den jury’s favorable to the light in the most But when summary judgment record. verdict, that Ernster was *7 pre- to establish disputed turns on facts the issue they supported sub- advisory jury if are using undisturbed 5. A trial an bifurcated Although only we examine the option. actions evidence. Then may another stantial be right jury may tried whether it is legal to a be de novo to see not triable as of conclusion 39(c); advisory jury, presumed jury fact light see Fed.R.Civ.P. with an correct in Mut. Co. v. Tirnberland findings. Ind. Lumbermens Ins. 368, Co., Inc., 374 195 F.3d Sys., Pallet & Lumber 340 v. Mustek Hewlett-Packard Co. 1999), using 1314, this bifurcated (Fed.Cir.2003) the first trial (quotation Cir. employee Inc., procedure issue is resolve omitted); Cedarapids, Mendenhall v. see ultimately is one of law. 1557, (Fed.Cir.1993), & n. 3 1561-62 1031, 1540, denied, 114 S.Ct. cert. 511 U.S. developed a stan- 6. Federal Circuit has (1994). L.Ed.2d 192 legal patent's reviewing the of a dard for issue helpful con- be in this obviousness entering judgment, checked the the court 7.In text: stating, have the form "The issues box on ver- jury has rendered its been tried and law has been submitted to When an issue of findings of fact did not make dict." The court jury upon disputed ... the stan- facts law, entering judg- either in or conclusions parts. We first of review has two dard denying or in Ernster’s ment on the verdict underly- jury resolved the presume that the judgment aas a new trial or motion for the verdict disputes in favor of factual findings matter of law. presumed winner and leave those contractor under Darden’s which are ideal for a jury submission to as A common-law test. number the Dar was done the district court in this case. weighed strongly den factors this di
rection —Luxco’s and Ernster’s tax treat compensation of her and the lack of
ment benefits, Kirk, see
employee 188 F.3d at
1008; that paid her travel and expenses, Schwieger,
other
see
Berger Transfer, 85 COUNTY, MULTNOMAH significantly, most the testimony by all Defendant-Appellee. witnesses other than Ernster that ILP No. 08-35641. and later Luxeo representatives employees. were not While evidence rele United States Appeals, Court of mixed, vant to other Darden factors was it Ninth Circuit. far establishing fell short of that Ernster was Luxco’s as a matter of law. Argued Sept. Submitted The judgment of the district court is Filed Feb. affirmed.
MURPHY, Judge, Circuit concurring. I concur in Judge
While Chief Loken’s
opinion and thorough his discussion of our area,
circuit law this I separately write encourage the appropriate use of a resolving factual disputes that fre
quently accompany application
Darden standard. Although the ultimate law,
issue of status is one of
resolving summary the issue on only appropriate “provided there is no
genuine issue of material fact.” Lerohl v. Sinfonia,
Friends Minn. (8th Cir.2003) (emphasis in original). *8 recognized,
As we have the determination party
of whether a an employee is or an
independent contractor “extraordinarily intensive,” States,
fact v. United Alford (8th Cir.1997), and re
quires aspects consideration of “all
working relationship parties,” between the Mo., Corrections,
Hunt v. Dept. State of Cir.2002). Thus,
the nature of the Darden standard is such
that it frequently involve fact issues