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.
-8-
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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