Rachel JUINO, Plaintiff-Appellant, Cross-Appellee, v. LIVINGSTON PARISH FIRE DISTRICT NO. 5, Defendant-Appellee, Cross-Appellant.
No. 12-30274.
United States Court of Appeals, Fifth Circuit.
May 30, 2013.
717 F.3d 431
Second, footnote 5 misstates this court‘s unpublished ruling in Puente v. Ridge, 324 Fed.Appx. 423 (5th Cir.2009). When this court states that it “does not reach” an issue in order to resolve a case under a narrower test, or when it assumes arguendo that a claim is cognizable, only to reject that the facts pled support the claim, such rulings do not implicitly reach or rule on the pretermitted issue. Because the decision was expressly unqualified, and because it was unpublished and therefore non-precedential, Puente adds nothing to the instant case‘s analysis.
Henry DuPont Heck Olinde, Jr., Esq., Olinde & Mercer, L.L.C. Baton Rouge, LA, for Defendant-Appellee, Cross-Appellant.
Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.
CARL E. STEWART, Chief Judge:
Plaintiff-Appellant Rachel Juino (“Juino“) appeals from the district court‘s dismissal of her claim of sexual harassment under Title VII of the Civil Rights Act of 1964,
I.
Livingston Parish Fire District No. 5 (“District 5“) is a political subdivision of the state of Louisiana that primarily relies on volunteers to provide fire and emergency services. From November 2009 to April 2010, Juino was a volunteer firefighter with District 5. Juino claims that during her tenure, fellow firefighter John Sullivan (“Sullivan“) subjected her to sexual harassment on several occasions. Juino allegedly reported Sullivan‘s conduct to superiors, but claims that no disciplinary action was taken. Juino terminated her services with District 5 on April 2, 2010.
After not receiving a right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC“) within six months of filing her claim, Juino filed suit in the district court, alleging sexual harassment and retaliation under Title VII; violations of the Louisiana Employment Discrimination Law,
The district court treated District 5‘s motion for partial summary judgment as a motion to dismiss for lack of subject matter jurisdiction under
II.
We review the district court‘s grant of summary judgment de novo. Admiral Ins. Co. v. Ford, 607 F.3d 420, 422 (5th Cir.2010) (citation omitted). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III.
A.
Pursuant to Title VII, it is illegal “for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s ... sex.”
In order to be subject to liability pursuant to Title VII, an employer must have at least fifteen employees “for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.”
An “employee” under Title VII is defined in pertinent part as “an individual employed by an employer.”
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party‘s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill 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 the tax treatment of the hired party.
Darden, 503 U.S. at 323-24 (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989)) (other citation omitted).
We apply the “economic realities/common law control test,” a variation of the common law agency test, in determining whether a party is an employee or an independent contractor. See Diggs v. Harris Hosp.-Methodist, Inc., 847 F.2d 270, 272 (5th Cir.1988) (citation omitted). The economic-realities portion of the test asks whether putative employees, “as a matter of economic reality, are dependent upon the business to which they render service.” Id. at 272 n. 3 (citation omitted). The common law control portion of the test, which courts should emphasize over the economic realities portion, assesses “the extent to which the one for whom the work is being done has the right to control the details and means by which the work is to be performed.” Id. at 272 (citing Mares v. Marsh, 777 F.2d 1066, 1067 (5th Cir.1985)). We have stated that the following factors are pertinent to the analysis:
(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the “employer” or the individual in question furnishes the equipment used and the place of
Id. at 272-73 (citation omitted).
“In most cases where an attempt has been made to discern the contours of the ‘conventional master-servant relationship,’ it has been because a court has been asked to consider whether, under a particular statute, a party is an employee or an independent contractor.” O‘Connor, 126 F.3d at 115 (citations omitted); see, e.g., Darden, 503 U.S. at 322-23 (considering ERISA,
B.
Cases from other circuits considering the presented issue have split into two camps. The Second, Fourth, Eighth, Tenth, and Eleventh Circuits have adopted the threshold-remuneration test. Under this test, courts conduct a two-step inquiry by requiring that a volunteer first show remuneration as a threshold matter before proceeding to the second step—analyzing the putative employment relationship under the common law agency test. Remuneration may consist of either direct compensation, such as a salary or wages, or indirect benefits that are not merely incidental to the activity performed. On the other hand, the Sixth and Ninth Circuits view remuneration as only one, nondispositive factor in conjunction with the other common law agency test factors. For reasons discussed below, we adopt the threshold-remuneration test and hold that Juino is not an “employee” within the meaning of Title VII.
C.
The Eighth Circuit‘s decision in Graves v. Women‘s Professional Rodeo Association, Inc., 907 F.2d 71 (8th Cir.1990), and the Second Circuit‘s decision in O‘Connor, 126 F.3d 112, are the leading cases for the threshold-remuneration cohort.
In Graves, the Eighth Circuit addressed whether the membership list of the Women‘s Professional Rodeo Association (WPRA) could be construed as a list of employees for purposes of Title VII. 907 F.2d at 72. In that case, Graves filed a Title VII action, alleging sex discrimination because he was denied membership
Central to the meaning of these words is the idea of compensation in exchange for services: an employer is someone who pays, directly or indirectly, wages or a salary or other compensation to the person who provides services—that person being the employee. Compensation by the putative employer to the putative employee in exchange for his services is not a sufficient condition, but it is an essential condition to the existence of an employer-employee relationship.
The Graves court then observed,
The relationship between WPRA and its members simply bears no resemblance to that between an employer and employee within the accepted usage of those terms: no compensation is made, only prize money won—and that is not supplied by the alleged employer nor does the recipient necessarily come from the postulated class of employees.... Only by skipping this crucial and elementary initial inquiry—whether there exists an employment relationship ... can Graves make an implausible argument sound even marginally plausible.
Accordingly, the Graves court found it “unnecessary” to proceed to the second step of the inquiry as members of the WPRA did not receive compensation. Id. at 74. The court explained that “[c]ourts have turned to analyses such as the ‘economic realities’ test and ‘right to control’ test under Title VII only in situations that plausibly approximate an employment relationship.” Id.
Similarly, the Second Circuit in O‘Connor considered whether an unpaid intern who filed a claim for sexual harassment under Title VII was an “employee.” 126 F.3d at 113-14. Although the Second Circuit acknowledged the Supreme Court‘s pronouncement that the common law agency test should be used when “employee” is not adequately defined by Congress, the O‘Connor court distinguished the application of the common law agency test in the volunteer context. To this end, the court stated,
Both parties on appeal (and the district court below) addressed themselves to the question of whether or not O‘Connor was an employee within [the common law agency] framework. However, we think that this analysis is flawed because it ignores the antecedent question of whether O‘Connor was hired by Rockland for any purpose. As the Supreme Court suggests, the common feature shared by both the employee and the independent contractor is that they are “hired part[ies],” [Reid, 490 U.S. at 751-52], and thus, a prerequisite to considering whether an individual is one or the other under common-law agency principles is that the individual have been hired in the first instance. That is, only where a “hire” has occurred should the common-law agency analysis be undertaken.
O‘Connor, 126 F.3d at 115 (second alteration in original).
In accordance with Graves, the Second Circuit also noted that courts use the common law agency test “only in situations that plausibly approximate an employment relationship.” Id. (quoting Graves, 907 F.2d at 74). The O‘Connor court explained that “[w]here no financial benefit is obtained by the purported employee from
Consistent with Graves and O‘Connor, other circuits have held that a volunteer was not an “employee” when there was no showing of remuneration. See, e.g. McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d 974, 979 (10th Cir.1998) (holding a medical student who did not receive remuneration did not establish an employment relationship for purposes of Title I of the Americans with Disabilities Act (ADA)); Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1243-44 (11th Cir.1998) (holding an officer-director who did not receive any compensation was not an “employee” within the meaning of Title VII).
In addition to the previously cited cases where there was no showing of remuneration such as a salary or wages, some circuits have not precluded a showing of remuneration in the absence of a salary or wages where a volunteer has received significant indirect benefits. The Fourth Circuit‘s opinion in Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir.1993), and the Second Circuit‘s opinion in Pietras v. Board of Fire Commissioners of Farmingville Fire District, 180 F.3d 468 (2d Cir.1999), are illustrative in this regard.
The facts of Haavistola involved a Title VII action by a volunteer firefighter who did not receive a salary or wages, but instead received indirect job-related benefits. 6 F.3d at 221. The Fourth Circuit acknowledged that “[c]ontrol loses some of its significance in the determination whether an individual is an employee in those situations in which compensation is not evident.” Id. at 220. Although recognizing that Haavistola did not receive direct compensation, the court noted that “[Haavistola] did not affiliate with the company without reward entirely,” as she received a state-funded disability pension, survivors’ benefits for dependents, scholarships for dependents upon disability or death, group life insurance, paramedic certification, tax-exemptions for unreimbursed travel expenses, reduced-rates on commemorative license plates, and benefits under the Federal Public Safety Officer‘s Benefits Act. Id. at 221.
The Fourth Circuit reversed the district court‘s summary judgment ruling that Haavistola was not an “employee,” and remanded the matter for a trier of fact‘s determination of whether Haavistola‘s receipt of such benefits constituted “indirect but significant remuneration” supporting an employment relationship, or were “inconsequential incidents of an otherwise gratuitous relationship.” Id. at 221-22.
In Pietras, the Second Circuit affirmed a bench trial‘s finding that a volunteer firefighter was a Title VII “employee” when the firefighter did not receive a salary or wages, but received significant indirect benefits, including a retirement pension, life insurance, death benefits, disability insurance, and limited medical benefits. 180 F.3d at 471, 473.
In sum, the threshold-remuneration line of cases teaches that: (1) remuneration may consist of direct remuneration, i.e., salary or wages, or significant indirect benefits that are not incidental to the service performed, i.e., job-related benefits; (2) if there is no showing of remuneration, courts will not proceed to the common law agency test; and (3) if there is remunera-
D.
The Sixth and Ninth Circuits do not view remuneration as a dispositive factor in evaluating the overall employment relationship.
In Bryson v. Middlefield Volunteer Fire Department, Inc., 656 F.3d 348, 354 (6th Cir.2011), the Sixth Circuit declined to adopt O‘Connor‘s holding that, to be a “hired party,” a plaintiff must demonstrate a threshold showing of “significant remuneration.” 656 F.3d at 354. The Bryson court instead held that remuneration was not an independent antecedent requirement, but rather was only one nondispositive factor that should be assessed in conjunction with “all of the incidents of the relationship.” Id. (citation omitted). The Bryson court remarked that “[t]he Supreme Court included the term ‘hired party’ in Darden only in a direct quote from its decision in Reid, and the Reid Court‘s use of ‘hired party’ was in the context of the ‘work for hire’ provision from the Copyright Act.” Id. “Although the [Supreme] Court did not define ‘hired party’ in Reid, it did define ‘hiring party‘: ‘By “hiring party,” we mean to refer to the party who claims ownership of the copyright by virtue of the work for hire doctrine.‘” Id. (quoting Reid, 490 U.S. at 739). The Sixth Circuit continued: “We doubt that the [Supreme] Court would define ‘hiring party’ as such while at the same time considering ‘hired party’ to carry much more substantive weight in requiring that it be an individual who received significant remuneration for his services.” Id.
The Bryson court further explained that “the [Supreme] Court‘s instruction to apply the common law of agency is not limited to when the individual receives significant remuneration but rather ‘when Congress has used the term “employee” without defining it.‘” Id. (quoting Reid, 490 U.S. at 739-40) (emphasis in original). Therefore, the Bryson court considered remuneration as a factor, but followed the Darden Court‘s instruction that “all of the incidents of the [putative employment] relationship must be assessed and weighed with no one factor being decisive.” Id. (quoting Darden, 503 U.S. at 324) (other citations omitted).
In Fichman v. Media Center, 512 F.3d 1157 (9th Cir.2008), the Ninth Circuit considered whether directors and independent producers of a nonprofit media company were “employees” under the ADA and the Age Discrimination in Employment Act (ADEA), and it similarly noted that remuneration was a nondispositive factor. 512 F.3d 1157, 1160 (9th Cir. 2008). The court concluded that directors were not “employees” under the director-employee test adopted in Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003).3
After consideration of both approaches, we adopt the threshold-remuneration test, as we find it uniquely suited to assessing a plausible employment relationship within the volunteer context. In support, we conclude that O‘Connor is persuasive, i.e., that a volunteer is distinguishable from the employee-independent contractor situation because there is a prerequisite of a “hire” in the latter. See O‘Connor, 126 F.3d at 115. This point is further borne out by the fact that a volunteer is generally not an “employee,” and thus no “hire” has occurred since there is no receipt of remuneration supporting an employer-employee relationship. See EEOC Compliance Manual § 2-III(A)(1)(c) (2000), available at http://www.eeoc.gov/policy/docs/threshold.html (“Volunteers usually are not protected ‘employees.’ “); see also O‘Connor, 126 F.3d at 115-16 (“Where no financial benefit is obtained by the purported employee from the employer, no ‘plausible’ employment relationship of any sort can be said to exist because although ‘compensation by the putative employer to the putative employee in exchange for his services is not a sufficient condition, ... it is an essential condition to the existence of an employer-employee relationship.‘” (quoting Graves, 907 F.2d at 73) (other citations omitted)).
Like the majority of our sister circuits, we will “turn to common-law principles to analyze the character of an economic relationship ‘only in situations that plausibly approximate an employment relationship.‘” Id. at 115 (quoting Graves, 907 F.2d at 74); see also EEOC Compliance Manual § 2-III(A)(1)(c) (noting that a volunteer may be considered an employee if, “as a result of volunteer service, s/he receives benefits such as a pension, group life insurance, workers’ compensation, and access to professional certification....“) (citing Pietras, 180 F.3d at 473). Lastly, we conclude that it is within the province of Congress, and not this court, to provide a remedy under Title VII for plaintiffs in Juino‘s position. O‘Connor, 126 F.3d at 119 (“[I]t is for Congress, if it should choose to do so, and not this court, to provide a remedy under ... Title VII ... for plaintiffs in O‘Connor‘s position.“).
V.
Turning to the case at hand, Juino contends that she is an “employee” under Title VII because she received the following benefits while working at District 5: $2.00 per fire/emergency call; a life insurance policy; a full firefighter‘s uniform and badge; firefighting and emergency response gear; and firefighting and emergency first-response training. She also avers that District 5 had a paramilitary organizational structure with the authority to supervise, hire, fire, and set applicable rules and regulations of work.
It is undisputed that Juino did not receive a salary and that she responded to 39 calls, which resulted in compensation of $78.00.4 She also received a life insurance policy, a uniform and badge, and emergency/first responders’ training. Juino‘s benefits are unlike the significant indirect benefits received by the volunteer firefighters in Haavistola and Pietras. We thus con-
VI.
For the foregoing reasons, we AFFIRM the district court‘s judgment dismissing Juino‘s Title VII claim with prejudice.