Alberty-Vélez v. Corporación De Puerto Rico Para La Difusión Pública

United States Court of Appeals
For the First Circuit

Nos. 02-2187, 02-2188

VICTORIA LIS ALBERTY-VÉLEZ,
Plaintiff, 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
 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

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).
 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 contract 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

"off" 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

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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 of 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, ranging 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

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.

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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 declaring Alberty an employee. The district court

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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, 119 F.3d 982, 987 (1st Cir. 1997). A court should grant

summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

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, 445 U.S. 326, 333
(1980) (A "party who receives all that he has sought generally is
not aggrieved by the judgment affording the relief and cannot
appeal from it."). However, on appeal, WIPR may argue for
affirming the summary judgment ruling based on arguments that the
district court rejected. See United States v. American Ry. Express
Co., 265 U.S. 425, 435 (1924) ("[T]he appellee may, without taking
a cross-appeal, urge in support of a decree any matter appearing in
the record, although his argument may involve an attack upon the
reasoning of the lower court or an insistence upon matter
overlooked or ignored by it."). Therefore, WIPR may argue, in
opposition to Alberty's appeal, that the summary judgment ruling
was correct because Alberty was an independent contractor. We will
treat WIPR's cross-appeal as a request that we affirm the summary
judgment ruling on this basis.

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affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c).

We may affirm a summary judgment ruling on any basis

apparent from the record. See Fabiano v. Hopkins, 352 F.3d 447,

452 (1st Cir. 2003). Although the district court granted summary

judgment because Alberty failed to present evidence of unlawful

discrimination, we resolve the matter on the threshold question of

employee/independent contractor status. See supra at n.4.5

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

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, 24 F.3d 768, 774 (5th Cir. 1994); Deimer v. Cincinnati
Sub-Zero Prods., Inc., 990 F.2d 342, 345-46 (7th Cir. 1993). A
district court "retains jurisdiction to modify a [Rule 56(d)] order
at any time." Alberty-Vélez I, 242 F.3d at 422 (citing 10B Charles
A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice &
Procedure, § 2737 (3d ed. 1998)). However, if a district court
revisits a partial summary judgment order, it must "inform the
parties and give them an opportunity to present evidence relating
to the newly revived issue." Id. (quoting Leddy v. Standard
Drywall, Inc., 875 F.2d 383, 386 (2d Cir. 1989)). Alberty received
adequate notice that the magistrate judge intended to revisit the
employee status issue prior to its adjudication, and she was able
to present evidence on the matter by responding to WIPR's summary
judgment motion.

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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, 242 F.3d at 421. However, it is

now clear that it does not cover independent contractors. See

Dykes v. DePuy, Inc., 140 F.3d 31, 37 n.6 (1st Cir. 1998). Thus,

an independent contractor may not maintain a Title VII action

against the entity with which she contracts. See Alexander v. Rush

North Med. Ctr., 101 F.3d 487, 492 (7th Cir. 1996); Barbara

Lindeman & Paul Grossman, Employment Discrimination Law, 1284 (3d

ed. 1996)

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

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." 503 U.S. at
323.

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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., 259 F.3d 309, 313-14 (4th

Cir. 2001) (applying common law agency test in Title VII case);

Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 113-

14 (2d Cir. 2000) (same). See also Employment Discrimination Law,

supra at 908 (3d ed. 2002 supp.) (stating that after "Darden most

courts have utilized a common law agency test to determine whether

a plaintiff is an employee under Title VII").

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 the 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

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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, 237 F.3d at 114 (citing cases).

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, 102 F.3d at 634 (affirming grant

of judgment as a matter of law concluding individual was

independent contractor).

Several factors favor 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, 980 F.2d 857, 862 (2d Cir. 1992) ("courts

that have addressed the level of skill necessary to indicate that

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 them as favoring either side.
See Eisenberg, 237 F.3d at 114. In this case, the parties present
no evidence concerning Alberty's role, if any, in hiring and paying
assistants. Therefore, we will not consider it.

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a party is an independent contractor have held . . . architects,

photographers, . . . artists, [and] drafters . . . to be highly

skilled independent contractors") (citing cases). In this regard,

Alberty possesses a master's degree in public communications and

journalism; is trained in dance, singing, and modeling; taught

within the drama department at the University of Puerto Rico; and

acted in several theater and television productions prior to her

affiliation with "Desde Mi Pueblo."

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 the "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

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. 1992) (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).

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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, 322 F.3d 486 (8th Cir. 2003), cert. denied

124 S.Ct. 469 (2003).

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." There 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

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the time consumed. If she did not film an episode she did not get

paid. See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730,

753 (1989) (pay for "completion of a specific job [is] a method by

which independent contractors are often compensated") (quoting

Holt v. Winpisinger, 811 F.2d 1532, 1540 (D.C. Cir. 1987)).

Fifth, WIPR did not provide Alberty with benefits. She

did not receive paid leave, health insurance, life insurance, or

retirement benefits from WIPR.9 See, e.g., Farlow, 259 F.3d at 315

(stating that lack of benefits indicates independent contractor

status); Aymes, 980 F.2d at 862 (same).

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, 140 F.3d at 38; Speen, 102 F.3d 633.

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

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.

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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 of the

work performed and the industry at issue. See Cilecek v. Inova

Health Sys. Servs., 115 F.3d 256, 260 (4th Cir. 1997). Considering

the tasks that an actor performs, we do not believe that the sort

of control identified by Alberty necessarily indicates employee

status.

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

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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 producing 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, 322 F.3d at 490; see

also Reid, 490 U.S. at 752-53 (sculptor was independent contractor

even though association that hired him defined scene to be sculpted

and specified most details of sculpture's appearance including its

scale and materials to be used); Powell-Ross v. All Star Radio,

Inc., 68 Fair Empl. Prac. Cases 1148, 1153-54 (E.D. Pa. 1995)

(radio disk jockey was independent contractor under Title VII even

though station required disk jockey to appear at station to perform

show at certain times).10

10
To further understand our conclusion on the control factor,
it may be useful to distinguish the Second Circuit's decision in
Eisenberg. See 237 F.3d 111. There, the court held that control

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 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, 322 F.3d at 492.

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, 322 F.3d at 492
(distinguishing Eisenberg on similar basis).

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under Title VII. See Armbruster v. Quinn, 711 F.2d 1332, 1340 (6th

Cir. 1983). Under this test, "employees are those who as a matter

of economic reality are dependent upon the business to which they

render service." Bartels v. Birmingham, 332 U.S. 126, 130 (1947).

Other courts have applied a so-called "hybrid test" in which

employee status is determined by measuring the economic reality of

the relationship as well as the common law factors. See Nowlin v.

Resolution Trust Corp., 33 F.3d 498, 505-06 (5th Cir. 1994). In

Speen, we declined to apply either of these tests, instead focusing

solely on the common law test. See 102 F.3d at 632. Because the

common law test does not consider "economic reality" to be an

indicator of employee status, the fact that Alberty's income

derived primarily from WIPR does not weigh heavily in favor of

employee status.

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).

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 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 140 F.3d at 34-36. And in Speen, we determined

that the plaintiff was an independent contractor despite the

parties' twenty-year relationship. See 102 F.3d at 627. Given this

precedent, we do not think that a sixteen-month relationship implies

employee status.

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 parties' 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

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of benefits, the method of payment, and the parties' own description

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 Title VII action

against WIPR.12

IV. Conclusion

For the reasons stated above, we affirm the judgment of the

district court.

11
Alberty's reliance on Diana v. Schlosser, 20 F. Supp. 2d 348,
350-52 (D. Conn. 1998) is misplaced. In that case, the court
permitted an on-air traffic reporter to maintain a Title VII action
against a radio broadcaster because, even though the broadcaster
did not employ the reporter, the broadcaster exercised significant
control over the reporter's ability to obtain other employment
opportunities. Alberty has not demonstrated that WIPR maintained
this sort of control over other employment opportunities available
to her.
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.

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