Zinn v. McKune

tеst, meaning” it that a on the would seem us circuit court decisions were no there matter, goods on the rulings of district courts is created where one obtain “debt” since question gives were mixed. in a dishonored check return therefor.4 case, in the instant court’s decision district Seventh, Ninth have Eighth and Circuits Conclusion us, issue now before particular addressed judgment of the reverse district We a check held that dishonored and each has check, holding that a dishonored under court particular of that under the circumstances case, present the circumstances of does scope of the Act. ease purview within the not constitute “debt” addition, followed the the Eleventh Circuit the Act. We decline to consider other matters declining in Circuit rationale the Seventh way urged here of defense which were reasoning in a case to followthe Zimmerman considered or ruled on the district court. check. In not involve a dishonored which did proceedings remanded for further con- Case order, chronological those four cases their expressed. with the herein sonant views Koritzinsky, Brewster & Stolper, are v. Bass (7th S.C., Neider, 111 F.3d 1322 Assoc., Lundgren v. Charles & — denied, -, (9th Cir.1997), cert. U.S. (1997); 627, 139 L.Ed.2d 607 118 S.Ct. Inc., Systems, Budget v. Rent-A-Car

Brown (11th Cir.1997); Duffy v. F.3d 922 Landberg, 133 F.3d 1120 case, Bass. In that shall first look at We ZINN, Jerilyn Plaintiff-Appellant, Circuit, Judge Bauer dis- Seventh payment obligation senting, held that a aris- v. ing from dishonored cheek created “debt” McKUNE, his individual offi David in triggering protections of the Act. In so capacity; Depart cial of Kansas State Circuit, though agreeing doing, the Seventh Corrections; Young, De ment of Fritz Zimmerman, with the in held result reached fendants-Appellees. of credit hot that “an offer or extension obligation required payment consti- No. 97-3007. Specifically, tute a ‘debt’ the Act.” Appeals, United States Court of Seventh Circuit stated that “to extent Tenth Circuit. court creates a re- the Zimmerman only quirement that credit-based transactions May [Act], under the we constitute ‘debt’ FDCPA Bauer, respectfully part ways.” (Judge must dissent, con- his stated he could Congress join ... “[t]he

science notion protection give

had in mind the of those who services----”)2 goods or

bad checks for

Charles, Duffy Brown and all fol Bass, “plain

lowed as do we.3 Under Bass, 1692a(5) provides 4. 15 as follows: 2. Within a month after Seventh Circuit U.S.C. Wexler, (7th Cir.1997) Ryan 113 F.3d 91 (5) any obligatory or The term "debt” means teaching Bass and held that the followed money alleged obligation pay of a consumer to "governs activities rеlated to dis- Act collection money, arising of a transaction in which the out honored checks.” insurance, property, which are the or services CheckRite, Inc,, Ditty per- subject primarily Ltd. 3. We note that are transaction (D.Utah, 11, 1997) August sonal, purposes, family, or household whether judge District different in the United States Court obligation judg- not such has been reduced to Utah, relying for Charles, the District Bass ment. con- held that a dishonored check does Act. for the stitute "debt” employment or servant relation-

any agency, ship between PHS at 75. Ac- Corrections. cordingly, PHS exercised control over the McQueeny, Benson and Associates Jane hiring, firing, wages and benefits of PHS (Bert Braud, Popham Firm the Law personnel agreement like Zinn. The also Ms. MO, brief), City, Plaintiff-Appel- for Kansas assigned personnel to one required that PHS lant. had Department’s’prison of the facilities to (Edward Britton, Appel F. Jr. Linden G. regula- “comply applicable all rules and brief), the Kansas and Lisa A. Mendoza on tions, Management Policies and Pro- Internal Corrections, KS, Topeka, Department of cedures, Depart- general orders of the Defendants-Appellees. respecting operations ... and activities ment property occupied by the in and about De- BARRETT, KELLY, Before partment,” App. including I Joint at the BRISCOE, Judges. Circuit Employee Department of Corrections’ Rules KELLY, Employment. of Judge. of See Circuit Conduct/Conditions id.', According to App. I at 99-108. Joint Plaintiff-appellant Jerilyn appeals Zinn them, precedes Policy Statement which grant summary court’s of from the district promulgated “pro- of were to Rules Conduct defendant-appellees judgment favor of productive envi- and efficient work viene] McKune, Young Fritz and the Kansas David free of behaviors that are eithér ronment (Department).1 Department of Corrections violent, disruptive, threatening, harassing, McKune, F.Supp. Zinn v. See ” dishonest____ App. I at 99. To Joint [or] (D.Kan.1996). Relying on Lambertsen end, operational the Rules establish Corrections, Dept. Utah of relating penological,,security .to standards Cir.1996), determined-that the district court concerns, including limitations on contact Depart employee Zinn not an of Ms. was families, and their dress аnd with inmates retaliation claims ment and dismissed her regulation of requirements, and conduct brought under Title VII of the Civil , property. See id. at 99-108. use of state common-law “whis Rights Act and Kansas’s Moreover, “the recognition sensitive retaliatory discharge doctrine. tle-blower” institutions,” App. I penal Joint at nature Zinn, We at 1534-38. have See grants Department dis- contract pursuant jurisdiction to 28 U.S.C. request personnel removal of PHS cretion and we affirm. assigned Department prison in a to work ‍‌​​‌​​‌​​‌​‌‌‌‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌‌‌‌​‌‍Background facility the contract. Id. If the De- concerns about a PHS partment’s (PHS) provided Health Services Prison resolved, agrees to remove are Correc- medical Osawatomie services facility. employee from the Id. Facility, prison state admin- tional a Kansas Corrections, Warder, by the Phyllis istered who was Ms. imme- to a contract. pursuant written supervisor employee, diate Jerilyn Zinn hired PHS as a correc- was management the clin- evaluated Ms. Zinn’s prison assigned clinic at tional nurse delivery to the of health care ic as it related From 1992 Osawatomie. Warder, however, Ms. in the clinic. services Nurse, Charge and as as the clinic’s served facility assigned to the Osawatomie responsi- job Zinn was implies, title day-to-day contact with Ms. and had little day-to-day the clinic. operation ble Department employee, Young, a Zinn. Fritz .supervised Ms. Zinn’s activities within also PHS and the De- between contract facility management and her the Osawatomie expressly that both PHS partment they implicated extent independent of the clinic employeés contrac- were and its pris- tors, safety security concerns within the explicitly negated the existence Young and David McKune. be read Fritz to the should 1. References defendants, individual to include the two named 365-68, App. parties appeal II at named on. See Joint 395-96. to this as well as Department employees conducted also audits App. with whom she I settled. See Joint preparation of Ms. inmate medical remaining sought 1-2. The defendants sum- they prepared to ensure were ac- records mary judgment against arguing, cording Department’s specifications, among things, other requirеd the contract between PHS and was not Ms. Zinn’s I Joint 79-80; App. Department. Joint App. granted at 267-309. The district court 333-34, App. II Joint motion, holding defendants’ that Ms. charge an initial filed discrimi- presented “no evidence from which a trier of nation with the in December fact could conclude that was an [Ms. Zinn] 1994, alleging, among things, that a pur- for Title KDC VII verbally male corrections officer abused her. poses.” Similarly, II at 591. Department investigated allega- The those district court Ms. Zinn’s law dismissed state tions and found them to be without merit. claim, noting whistle-blower retaliation 1995, January In reports several incident Ms. Zinn had not established that the De- against detailing alleged- were filed Ms. Zinn partment power had the to terminate her and ly improper contact with inmates. On Janu- had not established a link causal between her 19,1995, ary provided Zinn Captain Ms. Dan whistle-blowing and her termination. II See with relating Castello information to the use App. appealed. Joint Ms. Zinn 598-99.. supplies produce gifts of state inmates employees. for former current state See Discussion App. II Captain Joint at 495. Castello’s grant We review the district court’s investigation implicated of the incident Fritz summary judgment apply de novo and Young, disciplined who was thereafter for légal same standard as the district court. property failing misuse of state and for Co., 793, v. complaints Ms. Zinn’s Prudential Ins. 50 F.3d aggres- address in an Wolf (10th Cir.1995). manner. App. sive See II Joint 796 Summary judgment is early February, Deputy In Rudy Warden appropriate gеnuine if there is “no issue as to Stupar requested Boyd, that Mark Health any moving party material fact and ... is PHS, reassign Services Administrator of Ms. judgment entitled to a as matter of law.” Zinn, citing specific examples “inap- four 56(c). Fed.R.Civ.P. We examine the factual propriate App. behavior.” II Joint at 445. record and the reasonable inferences which Ms. Zinn was denied access to the Osawato- may light be drawn from it in the most 21, facility February mie on II Money favorable to Ms. Zinn. See Universal App. Joint subsequently 446. PHS of- Co., 1527, Centers v. AT 22 & T 1529 reassignment fered Zinn prison to other (10th Cir.), denied, cert. 513 U.S. 115 in Wyandotte Lansing, clinics but Ms. (1994). 655, 130 S.Ct. L.Ed.2d 558 accepted neither offer because she was VII, Under Title employ Ms. Zinn’s. physically perform unable to duties ment Deрartment status with the is “both a position. placed either PHS jurisdictional question aspect and an disability pay of [her] leave without in March 1995. substantive claim” of retaliation. v. Wheeler charge Ms. Zinn filed of discrimination Hurdman, (10th 259 Cir.), cert. Rights with the Kansas Human Commission denied, 484 U.S. 108 S.Ct. against Department as well as al- words, L.Ed.2d 501 In other leging violations of the Americans with Dis- establish, jurisdictional Zinn must pur for (ADA), abilities Act Age Discrimination poses, Department that the falls within the (ADEA), Employment in Act and sex dis- statutory “employer” definition of crimination and retaliation violation of Ti- 2000e(b)2 § in 42 U.S.C. Rights tle VII of the and that she is Civil Act of 1964. ISee personally at 21. receiving After entitled to relief under the statute letter, to sue Ms. Zinn against filed suit all because she has an "employer" pеrson 2. Title VII defines as "a preceding year, ... weeks in the current or calendar employees any agent who has fifteen or more person....” for each of such a 42 U.S.C. working day 2000e(b). twenty § in each or more calendar in- required by urges that the district court 2000e(f).3 correctly applied the § See Deal v. Farm Lambertsen test State U.S.C. Co., ease, operative n. 2 improperly Ins. facts of this con- Co. Mut. parties apparently struing The do light the facts most favorable Department falls dispute ignoring that the miscon- thus, statute; presented the sole issue struing finding facts favorable that Ms. employee whether Ms. Zinn is an Zinn was an of the Department. disagree. analysis. its Lambertsen We presented evidence Ms. Zinn district pаrties agree We with the court, her, light read most favorable to Corrections, Dept. Lambertsen Utah support finding could not a reasonable (10th Cir.1996),provides analy F.3d 1024 jury controlled the determining whether Ms. Zinn is an sis performance. means manner of her Apart Lambertsen, supervision from the issue of Title we held that the VII. evaluation, it is uneontroverted that Ms. Zinn “employer” and “em skeletal definitions 2000e(b) employee of PHS was an and received com ployee” provided in U.S.C. (f) pensation and benefits from not the by applying should com be fleshed out Department. See Swallows Barnes & No agency principles mon-law to the facts and Stores, Inc., 990, 992-93, surrounding working ble Book the rela 128 F.3d circumstances (6th Cir.1997); Marsh, tionship Mares v. parties. of the See id. at 1028. hy Though App. main foсus of Lambertsen’s II at the Joint provided and a inquiry brid is whether to what extent 505-08. PHS services to the De contractor, partment putative employer “right independent the to as an has control and merely fulfilling per employees, by the and of the of ‘means manner’ worker’s PHS terms formance,” id., contract, Department-PHS factors inform the anal service the did thereby ysis, including employees. not become suggests Reviewing Ms. Zinn otherwise. the (1) issue, occupation kind at the of whole, summary judgment evidence as a usually the work is reference whether however, apparent is is we believe it that a supervisor done the direction of No requi the case. evidence establishes the by specialist supervision; is withоut done degree profes of over Ms. site control (2) required particular the skill in the occu- nursing necessary support, services sional (3) pation; whether the or the finding an of equipment employee furnishes the used elements, Department. Though in (4) the some work; place length the the of and isolation and not in accordance with Lam- (5) worked; has the time the individual bertsen, might appear with an em consistent by by payment, method of whether time or relationship, jury ployment no reasonable (6) job; in the the manner which work employment relationship could find an exist (7) terminated; relationship is an- whether circumstances, totality ed based on the of the (8) afforded; is the nual leave whether summary judgment prоper. and is thus integral part work is an of the business of Co., Farmers Union Ins. (9) Oestman Nat’l employer; the ac- whether worker (10th Cir.1992). (10) benefits; cumulates retirement wheth- taxes; security employer pays er social Lambertsen, First, implicitly recog- in we (11) parties. the intention of the and though penological nized that valid measures safety security requires imposed us to to ensure Id. The Lambertsen calculus totality facility may require a worker fulfill look to the of circumstances sur- conditions, rounding working relationship certain those conditions do not between parties; single no factor is determinative. rise to the level “control” for determining employment a worker’s status See id. 2000e(f). "employee” as 3. Title VII defines "an individual employed by employer....” 42 U.S.C. an facility operation not make itself. See Lam clinic’s does with the correctional bertsen, (holding admittedly also an em- egress controlling ingress and of worker and ployee Department. of the The contract lan- requiring abide rules of con that worker guage parties simply intended indicates facility insufficient to duct within is establish the' to retain control over its (cid:127) pur for Title VII end, and, facility to that limited extent evidence Ms. Zinn poses). of the cites Much Thus, personnel. over Ms. Zinn’s reli- PHS Department’s attempt to establish provisions ance on the contract’s and the means manner control over the Department’s proves compliance with them reflects, Department’s performance Mares, nothing. See 777 F.2d at 1069. ensuring security penological interest reject argument We also facility. safety example, For within the “reimburses” PHS for upon memoranda which Zinn relies to salary, Department employs and thus Young’s supervisory Fritz control establish her, 'reasons; for similar clinic, over her inmate access to the relate to simply pays provided by for the services kits, aid restocking maintaining of the first contract, personnel “sharps” inventory, beginning sick call at responsibility pay wages, and it is' facility PHS’s adequately is time when the staffed. salaries, personnel. App. Depart See II and benefits to PHS Joint controlling 69-70, 86-87; ment’s who interest and what Lambert goes sen, into and out the clinic and at what (noting payment 79 F.3d at 1026 safety clearly security time relates to District, salary School benefits prison, its interest in as does maintain Corrections). Department' Utah More ing “sharps” inventory an accurate and ade over, Ms. Zinn’s contention that she was quate throughout'the supplies pris medical terminated similarly Similarly, performance on. Ms. Zinn’s of on- by provisions refuted the of the contract. using nursing Department site duties facili Though Department the retains the to equipment ties and Department’s serves the request personnel removal of PHS with in operating facility interest the correctional' dissatisfied, whom it is and did so in this safety a manner ensures which the and case, PHS alone exercises control ovеr the security employees of and inmates alike. Fi hiring firing personnel, of PHS I Joint nally, Department’s the interests control App. actually at offered Zinn Ms. ling working Ms. Zinn’s hours and access to assignments prior in other facilities facility the purposes. serve these same Ms. placing disability Aplt. her on leave. See Br. Zinn’s reliance on these factors is thus mis Thus, at 9. though contract the allowed the placed. Department request that Ms. Zinn be Moreover, many of the terms and condi- transferred facility, from the Osawatomie the upon tions that Zinn part Ms. relies were and" undisputed record is that PHS alone retained parcel agreement of governing the the rela- Zinn, ability Ms. indicating terminate tionship between the and PHS. was not her provides The contract that PHS and its em- Swallows, 995; Lambertsen, 128 F.3d at ployees will independent be considered con- 1026, 1028. F.3d at by tractors expressly Ms. Zinn also Phyl- relies on evidence that agency, denies the an employee creation of or Warder, Department employee, lis super- relationship servant employ- with PHS its vised though her. Ms. Warder ees, requires personnel but all PHS to abide supervised and evaluated Ms. perfor- by Department’s Employee of Rules basis, mance yearly on a Ms. Warder was Conduct. App. See I at Joint 80. The supervised PHS, herself by and evaluated contract grants also the abil- Department. not the See Joint ity to control of the format documentation in Moreovеr, assigned was by medical Warder to a prepared personnel. ‍‌​​‌​​‌​​‌​‌‌‌‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌‌‌‌​‌‍records Department’s facility different See id. at 80. than Ms. imposition The and some- requirements of these indepen- times had as telephone its little contact as one contractor, dent in order to per facilitate call week Zinn. with Ms. See II Joint Gamble, v. Thus, merely prisoners. care to See Estelle ical the evidence App. at 327-28. 97, 103, 285, 290, Ms. 429 S.Ct. Warder oversaw U.S. indicates that Ms. per not that she directed Ms. Zinn’s performance, L.Ed.2d 251 While daily basis. government controlled it on func traditional formance private employee as an contractor tion Further, argues Zinn that since inquiries, pertinent to other see Richardson Employee Department’s Rules Con- — U.S.-, McKnight, 117 S.Ct. “any “employee” to include have defined duct (1997) (addressing § 1983 L.Ed.2d 540 entity employed by an under contract person liability qualified immunity), not we do [Department,]” I provide to the services believe, considering totality of cir 124, and definition App. at that this cumstances, proffered suf Department’s has intent is evidence of the finding relationship support a that she employment an with PHS ficient evidence to create disagree. Tellingly, Department. personnel. employee We an was not deposition her did be- time of presented by Ms. Zinn indicates evidence employment an relation- lieve that she had Department. ship See id. 52.4 with the by defined the terms the PHS-De requires clearly thаt the contract itself Given Department’s partment contract and policies gen- all internal compliance with safety. Security In all valid interests Department, as the eral such orders respects, PHS the manner controlled Conduct, and further Employee Rules of performance. This is and means her work understanding par- the clear evinces independent an not a case where individual independent an contractor relation- ties that claims to an of an contractor be exist, ship at all times the definition shall entity. Copenhaver, Bell & See Garcia simply not rise upon Ms. does relied Assocs., Cir. 1266-67 disputed material fact. The to the level of 1997). Rather, employ it is case where “emрloyee” Department’s definition of does contends, entity necessarily despite ee of one an intent to create evince contrary, that she is her admission relationship where none otherwise exists. supra of another. See also the the sheer vol Ms. Zinn also asserts that summary judgment sim note 4. The evidence reports officers filed correctional ume position. ply support this difficult does operation relating to of the clinic com presented Ms. Zinn has not evidence Because Department’s acceptance and bined with the jury to find which would allow reasonable reports she filed estab investigation of EEO issue, prop her on this the district court for Department her lish controlled em that the erly granted summary judgment on Ms. First, disagree. Ms. Zinn ployment. We v. VII claims. See Jenkins Zinn’s Title reports explain how the number of does not (10th Cir.1996). Wood, 988, 81 F.3d 990 investigation Department’s of her or the filed alternative, Zinn asserts In the Ms. the Lambert- complaints are relevant under analysis. agent we to find these sen Even were that acted as Lambertsen, they do probative agency factors even absent an or PHS and that any way not that the in establish provides employment Title VII performance of her controlled Ms. against Aplt. retaliation. See Br. protection Lambertsen, F.3d at nursing duties. See 79 at 25-32. Our review of record indicates 1028; Kandiyohi, 15 County F.3d Wilde v. arguments be not raise these Ms. Zinn did (8th Cir.1994). 103, 106 response court in to the forе the district judgment Department’s summary motion and Finally, argues Zinn that the services Ms. opportunity ad had no the district court Department were inte- she to the 530-38, II them. See dress gral Department’s business because Similarly, Zinn not did raise the provide adequate med- must my employer. deposition: A: That was 4. Zinn testified in Q: of Corrections was Kansas misunderstanding, you Q: no So that there is your employer? not your employer was Prison understand Services, right. A: That's Health correct? 1360

joint employer relationship loaned employment or servant theories dual' to survive below, not raised them before summary and has this judgment. would affirm the id.; Concurring Opinion court. at 3- See summary judgment the Title on VII claim on cf. error,” 4. Absent “the most manifest which ground that Zinn failed tо establish she here, we are not inclined to present is not engaged activity protected Title VII. I not on theories addressed decide this case summary judgment would affirm the on the by the parties nor considered district whistleblowing ground on the claim that Zinn Accep court. v. Norwest Fin. See Smith failed to was fired in establish she retaliation (10th tance, Inc., 1408, 1415-16 reporting rules, a serious violation of Tele-Communications, Inc. v. regulations, or law. Commissioner, 1229, 1232 An employer prohibited from is discrimi- nating against opposing any suggests that Ms. Zinn also practice by Title made unlawful VII or for dismissing district court erred whistle- charging, assisting, testifying, participat- brought blower retaliation claim under Kan ing any investigation, pro- in an manner sas state law. The district сourt held Ms. ceeding, hearing under Title VII. 42 presented Zinn had not evidence of a clear majority § U.S.C. 2000e-3. The concludes convincing establishing nature she was a Zinn prevail cannot retaliation claim Department employee, and thus failed to because KDOC not power show that the had the although contends that Prison Health Ser- employment. terminate her See 949 (PHS) employer, vices was her formal KDOC alsp at 1537-38. district court day- was also her virtue of the held failed to show the existence of to-day it control exercised over her work at a causal between her connection whistle- prison clinic. blowing against retaliation her. any Brown, 1538; 893, id. at Palmer 242 Kan. statute, Because Title is a remediаl VII it 685, (1988); IBP, Inc., Ortega 752 P.2d 690 interpreted liberally must be to effectuate its (1994). 255 Kan. 874 P.2d 1192 purpose eradicating discrimi Although we are aware that the Kansas Su Chevrolet, Berry nation. v. Stevinson 74 preme recently Court extended the doctrine (10th Cir.1996); see Robinson retaliatory discharge retaliatory to include Co., 337,----, v. Shell Oil 519 U.S. demotion, Brigham Companies, see v. Dillon 843, 848-49, S.Ct. 136 L.Ed.2d 808 Inc., 262 Kan. P.2d 1059-60 In the congressional absence of. clear man (1997), argue did below and date, interpretations courts should avoid nothing there is record suggesting deprive Title VII that discrimination victims Department’s actions resulted in a demo remedy. of a Berry, F.3d at tion, theory and we need examine 2000e(b) “employer” U.S.C. defines Tele-Communications, Inc., here. See person as “a engaged industry in an Thus, affecting F.3d at 1232. after careful review of commerce fifteen or authority employ- the record has more controlling and this mat who ter, 2000e(f) substantially specified we affirm ees” in a period, § for the same and given by reasons the district court. “employee” See defines as “an individual em- F.Supp. 949 at 1536-38. ployed by employer.” “Industry affecting “any governmental commerce” includes in- AFFIRMED. dustry, business, activity.” ór 42 U.S.C. BRISCOE, 2000e(h). Judge, § concurring: Circuit Supreme The Court broadly has “employee” § construed as used in 2000e-3 by concur in the result reached the ma- to include employ- both and current former jority on Zinn’s Title VII retaliation and Robinson, at-, ees. 519 U.S. 117 S.Ct. at claims, whistleblowing state law disagree but 845; Berry, 74 F.3d at 985. The term “em- majority’s with the cоnclusion that Zinn ployer” under Title VII should also be “con- failed to establish Kansas of (KDOC) strued in a encompass functional sense to employer Corrections ‍‌​​‌​​‌​​‌​‌‌‌‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌‌‌‌​‌‍could be her persons for employers of Title VII who are these and state law conven- terms, claims. Zinn a showing has made sufficient tional but who nevei*theless control

1361 formally employed by organi one compensation, worker is aspect of an individual’s some terms, conditions, zation, privileges employ- important of aspects of his are but work Magnuson Peak Technical by organization, ment.” subject another to control Services, Inc., F.Supp. 507-08 808 organizations employers the both are of (E.D.Va.1992). independent entity An with suffi worker. control the and conditions of cient over terms general determining whether test a employer- formally the of worker em plaintiff a has demonstrated an relationship employee joint under Title VII is de a ployed by employer another is common test for a master- See, rived from the law scope e.g., the of Title VII. Graves v. relationship. Lambertsen v. servant (3d Lowery, 117 F.3d Corrections, Utah Assocs., Virgo v. Riviera Beach 1024, 1029 (11th Cir.1994). Here, Zinn’s inquiry' is main focus of the court’s [T]he facility did abandon the KDOC not involve right to “means employer’s control the the job to Her with PHS ment service PHS. performance. manner” of the worker’s to health care to in provide was services hybrid the test also looks charge. mates under KDOC’s (1) factors, including: the kind Similarly, the loaned servant doc . under issue, occupation reference trine, permitted by his a directed or “servant usually is whether the work done may perform master services for another supervisor or is the direction a done perform the servant of such other become (2) specialist supervision; the a without may ing the services. He become the other’s particular occupation; required in the skill to some acts and not as to others.” servant as (3) employer or the whether (Second) Ti Agency Restatement equipment furnishes the used (4) work; length recognizes VII that under the place of of time the tle case law worked; (5) doctrine, formally has method of individual loaned servant worker (6) job; payment, whether time employed by temporary employment agen relationship the manner which the work assigned cy and to work under the control (7) terminated; whether annual leave is is supervision agency of a client of the is (8) afforded; work is an inte- whether the agency client. both part employer; gral of the business of the Pierce, Lynch, Fen See Amarnare v. Merrill (9) whether worker accumulates retire- Smith, Inc., ner & (10) benefits; ment whether the (2d (S.D.N.Y.1984), Cir. aff'd (11) taxes; security pays social 1985). parties. single No factor intention of the in the record that PHS There evidence Rather, is conclusive. the courts are split right control KDOC totality at the circumstances sur- look right KDOC had the to control how work. working rounding between performed security aspects parties. job right had to control the while PHS (internal omitted). Id. citations at 1028 Conversely, nursing aspects of her work. determining both KDOC and whether security right no to control the PHS had employers, we must consid- PHS were no aspects and KDOC had control er related common law doctrines under which nursing aspects. just may employed by than be more one worker nurse, charge of a clinic but nurse Generally, may person be the specifically hired prison inmates. She was employers, “at as employee of two one time position. people At one of the for that least act, if to one the service one does job her for the was KDOC who interviewed of the service involve abandonment required employee. work her to have (Second) Agency other.” Restatement inmates, no very close contact with often with recognizes VII case law Title special present, and were se- one else there may separate two be a worker’s that entities sharp curity because there were concerns they employer if mat- share eodetermine All drugs at the clinic. instruments and governing ters the essential terms and condi- required undergo employees employment. When were tions the worker’s by poli- and to follow training KDOC KDOC verted evidence clear that ma- makes procedures. cies and The contract between jor plaintiffs employment (e.g., terms of gave KDOC and PHS KDOC a means of etc.) assignments, pay, work were con- by enforcing requiring control over Zinn solely by trolled the School District. request. remove at KDOC’s PHS to added). Here, (emphasis 79 F.3d at 1028-29 contractors, Employees expressly were however, there was evidence in the record employees in as KDOC KDOC’s treated that KDOC controlled the means and manner management policy manual of internal performed which Zinn her work as fact, procedure. As evidence of KDOC charge prison nurse of a clinic. complaint internal acted on Zinn’s EEO though employee. she were its Recognition by that the control exercised There is evidence the record that KDOC KDOC over Zinn’s work could mаke KDOC exercised its of control over the securi- employer is consistent with Title VU’s ty aspects In of Zinn’s work. answer to purpose eradicating employment remedial ’ interrogatories, super- PHS stated Zinn was organization discrimination. An whose em- in delivering by vised health care to inmates ployees position are in a to discriminate reported a KDOC who to a PHS against a performing worker who is work However, employee. KDOC administrator organization’s under that control should be Young supervise “would Ms. Zinn and her recognized employer as that worker’s management of the medical clinic itas would VII, organization Title whether or not the interrelationship relate to the between man- the worker’s formal In a case like aging the medical clinic confines of this one where a employer worker’s formal facility.” App. correctional at 360. Zinn assigned separate her to organiza- work for a permission Young needed from to leave work tion, employees of employer both the formal early, Young had directed to inform separate organization posi- are in a him if regular she worked outside her hours. against tion to discriminate the worker with call, He set the time for her to start sick respect employment. to her required complete her to clinic inventories a certain date each month. He directed her Although presented evidence complete repоrt incident when an in- employer, KDOC was her pres she did not hurt, mate was and directed her to allow supporting ent evidence her retaliation claim. only inmates in the clinic for medical reasons prima retaliation, To establish a facie case of assignments. or for work (1) prove she engaged must in protected she I conclude from this evidence that whether (2) discrimination; opposition to adverse ac KDOC was question is a tion employer subsequent pro Lambertsen, fact. a teacher hired and (3) activity; tected a causal connection paid by a assigned school district and between employer’s activity and the ad prison a state program education verse actiоn. County, Sauers v. Salt Lake brought against a Title VII action the de- (10th Zinn con partment of corrections after she was sexual- against tended KDOC retaliated her after ly assaulted an inmate. This court con- she filed an complaint internal EEO department cluded the of corrections was not KDOC. she failed to establish this plaintiffs employer under Title VII. complaint protected activity. Although Although physically con- complaint triggers the retaliation plaintiffs entry trolled into the Correc- ultimately need not upheld, be see Archuleta Facility tional security Institutions, Dept. v. Colorado plaintiff ..., the uncontroverted evidence (10th Cir.1991), plaintiff must plaintiffs indicates thát employer was the good have had a reasonablе faith belief that notably, School District. Most there is engaging defendant was in discrimination. simply no evidence in the record from E.g., Dey Development Co., v. Colt Constr. & which a could conclude the finder of fact Rettiger v. controlled the means or the IBP, Inc., (D.Kan. plaintiff performed 1182,

manner in which her (cid:127) Rather, 1997). day-to-day work. the uncontro- rules, reported “a serious infraction” of her com- she EEO Zinn failed to establish by Ti- alleged regulations, pertaining public forbidden plaint discrimination or law ex- complaint, she did not tle In her health, safety, general VII. welfare co- the basis pressly allege any discrimination on company management law en- workers to or complaint her as She characterized sex. Brown, officials. See Palmer v. fоrcement retaliation, specify but one for did 242 Kan. 752 P.2d 689-90 opposing complaining was for or retaliation reported that KDOC administrator prohibited Title VII. She discrimination Young departing employee allowed a to take reported by KDOC incidents of “harassment” bulletin made property state board —a complain that employees, but did not from state owned materials which had inmate sexual or ‍‌​​‌​​‌​​‌​‌‌‌‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌‌‌‌​‌‍was otherwise dis- harassment was employee. This personalized for the been criminatory. reported Most of the incidents recognized not the kind of serious infraction personality disagreements were clashes whistleblowing a Palmer a basis for report prison policies. over Nor did she claim. oppo- prior in retaliation for harassment was I would conclude Zinn was an complaints sition or about discrimination. incidents, reported Only one both and KDOC for of Title spreading of rumor of a sexual related state law claims. I concur in VII and inmate, could characterized as with an be grant sum- affirming the district court’s However, that alone sexual harassment. mary judgment their as Zinn’s claims fail on sexually work envi- could not create hostile merits. and, case, any sexual harassment ronment complaint. Be- was not the basis her had reasonable she could not have cause retal-, reporting

good that she was faith belief prohibited by Title

iation or discrimination

VII, engaged in that she she did not establish activity by filing the

protected internal EEO

complaint with KDOC. law claim that Zinn also raised state America, UNITED STATES emрloyment discharge in her KDOC caused Plaintiff-Appellee, reporting prop- misuse of state

retaliation erty The district by a administrator. KDOC claim, rejected rul- this whistleblower court PENA, Amabiles Defendant- Marcos ing not Zinn’s KDOC was Appellant. recognizes law that under law. Kansas state (Second) §§ 226 Agency Restatement No. simultaneously may em- be Appeals, Court of Bright United States ployed by more than one Inc., Tenth Circuit. Kan. P.2d Cargill, (1992). The evidence that KDOC 362-63 May employer under Title VII is could be Zinn’s support her law retal- also state sufficient summary judg-

iatory discharge claim on securi- right had the control

ment. KDOC work and

ty aspects of Zinn’s exercised have the Although did not

control. KDOC

right discharge Zinn from her it have the to demand did reassignment and it exercised control job. performed

over how she appropriate

summary judgment was because claim, ‍‌​​‌​​‌​​‌​‌‌‌‌‌‌‌​​​‌​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌‌‌‌​‌‍plaintiff whistleblowing

to establish things, he among prove,

must

Case Details

Case Name: Zinn v. McKune

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 12, 1998

Citation: 143 F.3d 1353

Docket Number: 97-3007

Court Abbreviation: 10th Cir.