Bryson v. Middlefield Volunteer Fire Department, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0255p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
MARCIA BRYSON,
-
Plaintiff-Appellant,
-
-
No. 10-3055
v.
,
>
-
-
MIDDLEFIELD VOLUNTEER FIRE

Defendants-Appellees. -
DEPARTMENT, INC.; SCOTT ANDERSON,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 07-00724—Christopher A. Boyko, District Judge.
Argued: June 9, 2011
Decided and Filed: September 2, 2011
Before: MOORE and GIBBONS, Circuit Judges; BORMAN, District Judge.*

_________________

COUNSEL
ARGUED: Dale A. Bernard, THE BERNARD LAW FIRM, Cleveland, Ohio, for
Appellant. Mark D. Katz, ULMER & BERNE LLP, Cleveland, Ohio, for Appellees.
ON BRIEF: Dale A. Bernard, THE BERNARD LAW FIRM, Cleveland, Ohio, for
Appellant. Mark D. Katz, Natalie M. Hostacky, ULMER & BERNE LLP, Cleveland,
Ohio, for Appellees.
MOORE, J., delivered the opinion of the court, in which BORMAN, D. J.,
joined. GIBBONS, J. (pp. 12–16), delivered a separate opinion concurring in part and
dissenting in part.

*
The Honorable Paul D. Borman, United States District Judge for the Eastern District of
Michigan, sitting by designation.

1
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 2

_________________

OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Marcia Bryson
appeals the district court’s grant of summary judgment to Defendants-Appellees
Middlefield Volunteer Fire Department, Inc. (the “Department”) and Scott Anderson
(together, “Defendants”), on her claims of sexual harassment and retaliation brought
pursuant to Title VII of the Civil Rights Act of 1964. Specifically, Bryson appeals the
district court’s conclusion that the Department’s firefighters were not employees during
the relevant time period and therefore cannot be counted towards Title VII’s requirement
that an employer have fifteen employees to be subject to the Act. Because the district
court did not consider and weigh all aspects of the firefighters’ relationship with the
Department, we REVERSE the district court’s grant of summary judgment on Bryson’s
Title VII claims, REVERSE the district court’s decision declining to exercise
supplemental jurisdiction over Bryson’s state-law claims, and REMAND the case for
further proceedings consistent with this opinion.

I. BACKGROUND & PROCEDURE

The Department is a non-profit organization incorporated in Ohio for the purpose
of providing fire and emergency services in Middlefield, Ohio. The Department is
composed of its “members”: firefighters classified in various groups depending on
qualifications and current status. R.7-3 at 5–7 (Articles of Incorporation) (outlining
membership classifications, which include active members, associate members, inactive
members, honorary members, and cadet members). Bryson became a firefighter-member
in the Department in 1991 and also became an administrative assistant for the
Department in 1997. She alleges that defendant Anderson, who was the Fire Chief until
2005, subjected her to unwanted sexual advances, requests for sexual favors, and other
verbal and physical contact of a sexual nature, including, for example, that Anderson
demanded sexual favors in return for pay raises. Bryson filed charges of discrimination
with the Ohio Civil Rights Commission (“OCRC”) and the Equal Employment
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 3

Opportunity Commission (“EEOC”) on May 25, 2004 and July 2, 2004, alleging
discrimination on the basis of sex. On October 4, 2004, Bryson filed an amended charge
to include a claim of retaliation, alleging that she was terminated or constructively
discharged on July 19, 2004.

At the request of the EEOC, the OCRC transferred the case to the EEOC for
investigation. In response to inquiry by the Department, the EEOC sent a letter to the
Department concluding that the Department was an employer for purposes of Title VII
because its firefighter-members were employees; the EEOC stated that the Department
“exercises sufficient control over the actions of the Members” and the members “are
compensated for their services,” even if they are not on the Department’s payroll. R.3-6
(Feb. 16, 2005 EEOC Ltr.). On September 11, 2006, the EEOC issued its determination,
concluding that the evidence established that Bryson was sexually harassed and
subjected to a sexually hostile work environment. The EEOC also concluded that there
was insufficient evidence to support Bryson’s allegations of retaliation and constructive
discharge. The EEOC issued Bryson a Notice of Right to Sue on December 15, 2006.

Bryson filed suit in the district court on March 13, 2007, and filed a First
Amended Complaint on April 16, 2007. Bryson alleged claims of hostile-work-
environment sexual harassment under Title VII against the Department (Count I) and
under Ohio law against Defendants (Count IV), quid pro quo sexual harassment under
Title VII against the Department (Count II) and under Ohio law against Defendants
(Count V), retaliation under Title VII against the Department (Count III) and under Ohio
law against Defendants (Count VI), and wrongful constructive discharge in violation of
state and federal public policies against Defendants (Count VII).

Defendants moved for partial summary judgment and for dismissal for lack of
subject-matter jurisdiction on Bryson’s Title VII claims on the basis that the Department
does not meet the statutory definition of employer because it did not have fifteen
employees for the relevant time period. Defendants argued that the firefighter-members
were not employees because they received only de minimis benefits for their services.
Bryson opposed the motion and also filed a motion pursuant to Federal Rule of Civil
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 4

Procedure 56(f) (2009),1 requesting additional discovery. The district court reviewed
cases that have analyzed the distinction between volunteers and employees, and
concluded that “compensation analysis is an antecedent inquiry that must be examined
prior to application of the economic realities or common law agency tests.” R.17 (Mar.
26, 2008 Dist. Ct. Op. at 5). The district court granted Bryson’s motion for discovery
and denied, subject to reconsideration after the completion of discovery, Defendants’
motion.

After the parties completed discovery on the issue of benefits received by the
firefighter-members, Defendants filed a supplement to their motion for partial summary
judgment, which Bryson opposed. On December 14, 2009, the district court denied
Defendants’ motion to dismiss for lack of subject-matter jurisdiction, see Arbaugh v. Y
& H Corp., 546 U.S. 500, 516 (2006) (“[T]he threshold number of employees for
application of Title VII is an element of a plaintiff’s claim for relief, not a jurisdictional
issue.”), and granted Defendants’ motion for partial summary judgment of Bryson’s Title
VII claims. The district court concluded that the benefits provided to the firefighter-
members “do not constitute significant benefits that would raise a factual issue for the
jury.” R.25 (Dec. 14, 2009 Dist. Ct. Op. at 11). Having dismissed Bryson’s federal
claims, the district court declined to exercise supplemental jurisdiction over the state-law
claims that remained. Bryson now timely appeals.

II. ANALYSIS

To be subject to the antidiscrimination provisions of Title VII, the Department
must qualify as an “employer,” meaning that it must have “fifteen or more employees
for each working day in each of twenty or more calendar weeks in the current or
preceding calendar year . . . .” 42 U.S.C. § 2000e(b). The parties agree that the relevant
time period is from 2002 through 2007 and that Bryson was an employee covered under
Title VII. The Department admits that it had either four or five employees during the
years 2002 through 2007 in the positions of Fire Chief, Assistant Fire Chief, Treasurer-

1
When Rule 56 was revised in 2010, subsection (f) was moved to subsection (d). See Fed. R. Civ.
P. 56 (2011) 2010 Amendments Notes.
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 5

Inspector, Secretary, and Administrative Assistant. The Department additionally admits
that four trustees were also employees in 2007. The parties dispute, however, whether
the firefighter-members qualify as employees under Title VII.

A. Standard of Review

“We review the district court’s grant of summary judgment de novo.” Hamilton
v. Gen. Elec. Co., 556 F.3d 428, 433 (6th Cir. 2009). Summary judgment is appropriate
when “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Additionally, we must view all
facts and inferences in the light most favorable to Bryson, the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Whether the Department is an “employer” for purposes of Title VII, “[i]n the
absence of a conflict of material fact, . . . is appropriate for the court to resolve . . . as a
matter of law.” Simpson v. Ernst & Young, 100 F.3d 436, 439 (6th Cir. 1996), cert.
denied, 520 U.S. 1248 (1997); Lilley v. BTM Corp., 958 F.2d 746, 750 n.1 (6th Cir.)
(“The determination of employment status is a mixed question of law and fact.
Normally, a judge will be able to make this determination as a matter of law. However,
where there is a genuine issue of fact or conflicting inferences can be drawn from the
undisputed facts . . . the question is to be resolved by the finder of fact in accordance
with the appropriate rules of law.”), cert. denied, 506 U.S. 940 (1992); accord NLRB v.
United Ins. Co. of Am., 390 U.S. 254, 260 (1968).

B. Whether Firefighter-Members Were Employees

An “employee” is defined as “an individual employed by an employer . . . .”
42 U.S.C. § 2000e(f). Because this definition “is completely circular and explains
nothing,” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (describing
same definition under ERISA), the Supreme Court has instructed courts to interpret the
term “by incorporating the common law of agency.” Ware v. United States, 67 F.3d 574,
576 (6th Cir. 1995) (citing Darden, 503 U.S. at 322–24 (ERISA); Cmty. for Creative
Non-Violence v. Reid, 490 U.S. 730 (1989) (“work made for hire” provisions of the
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 6

Copyright Act of 1976); United Ins. Co., 390 U.S. at 258 (National Labor Relations Act
(“NLRA”))). The Supreme Court in Reid and Darden stated,

“In determining whether a hired party is an employee under the
general common law of agency, we consider the hiring party’s right to
control the manner and means by which the product is accomplished.
Among the other factors relevant to this inquiry are the skill required; the
source of the instrumentalities and tools; the location of the work; the
duration of the relationship between the parties; whether the hiring party
has the right to assign additional projects to the hired party; the extent of
the hired party’s discretion over when and how long to work; the method
of payment; the hired party’s role in hiring and paying assistants;
whether the work is part of the regular business of the hiring party;
whether the hiring party is in business; the provision of employee
benefits; and the tax treatment of the hired party.”

Darden, 503 U.S. at 323–24 (quoting Reid, 490 U.S. at 751–52) (citing Restatement
(Second) of Agency § 220(2) (1958); Rev. Rul. 87-41, 1987-1 C.B. 296, 298–299). We
have applied the common-law agency test from Reid and Darden to determine whether
an employment relationship exists under different statutes, particularly in the context of
distinguishing employees from independent contractors.2 See Weary v. Cochran, 377
F.3d 522, 524–25 (6th Cir. 2004) (Age Discrimination in Employment Act (“ADEA”));
Shah v. Deaconess Hosp., 355 F.3d 496, 499–500 (6th Cir. 2004) (Title VII and ADEA);
Johnson v. City of Saline, 151 F.3d 564, 568 (6th Cir. 1998) (Americans with Disabilities
Act); Ware, 67 F.3d at 576–78 (Internal Revenue Code). However, we have not
considered the issue of employment relationships in the context of a volunteer. Bryson
argues that the district court erred in adding a significant-remuneration requirement as
an independent antecedent to the common-law agency test. For the reasons explained
below, we agree.

Other circuits that have considered the issue have included remuneration as a
factor in their analyses. See, e.g., United States v. City of New York, 359 F.3d 83, 92 (2d

2
We previously applied an “‘economic realities’ test, which looks to the totality of the
circumstances involved in a work relationship, including whether the putative employee is economically
dependent upon the principal or is instead in business for himself.” Shah v. Deaconess Hosp., 355 F.3d
496, 499 (6th Cir. 2004) (internal quotation marks omitted). “The substantive differences between the two
tests are minimal.” Id. (citing Johnson v. City of Saline, 151 F.3d 564, 568 (6th Cir. 1998); Simpson, 100
F.3d at 442–43).
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 7

Cir. 2004), cert. denied, 543 U.S. 1146 (2005); Llampallas v. Mini-Circuits, Lab, Inc.,
163 F.3d 1236, 1243–44 (11th Cir. 1998), cert. denied, 528 U.S. 930 (1999);
McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d 974, 979 (10th Cir. 1998), cert.
denied, 526 U.S. 1051 (1999); Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d
211, 220–21 (4th Cir. 1993); Graves v. Women’s Prof’l Rodeo Ass’n, Inc., 907 F.2d 71,
73–74 (8th Cir. 1990); cf. Waisgerber v. City of Los Angeles, 406 F. App’x 150, 151–52
(9th Cir. 2010) (unpublished decision) (citing Fichman v. Media Ctr., 512 F.3d 1157
(9th Cir. 2008)) (remanding to give plaintiff the opportunity to amend complaint “to
allege the ‘substantial benefits’ necessary to make her an employee under Title VII”).

The EEOC also analyzes remuneration when evaluating a putative employment
relationship. The EEOC Compliance Manual3 states that, although volunteers usually
are not employees, “an individual may be considered an employee of a particular entity
if . . . [she] receives benefits such as a pension, group life insurance, workers’
compensation, and access to professional certification . . . .” EEOC Compliance Manual
§ 2-III(A)(1)(c) (2000), available at www.eeoc.gov/policy/docs/threshold.html (citing
Pietras v. Bd. of Fire Comm’rs, 180 F.3d 468, 473 (2d Cir. 1999); Haavistola, 6 F.3d at
222). “The benefits constitute ‘significant remuneration’ rather than merely the
‘inconsequential incidents of an otherwise gratuitous relationship.’” Id. (quoting
Haavistola, 6 F.3d at 222). In this case, the EEOC determined that the firefighter-
members are employees because the Department “exercises sufficient control over the
actions of the Members” and because the Members “are compensated for their services,”
even if they are not on the Department’s payroll. R.3-6 (Feb. 16, 2005 EEOC Ltr.).

We believe that the district court erred, however, in its conclusion that
remuneration must be an independent antecedent inquiry. The district court adopted the
Second Circuit’s two-step test for determining whether an individual is an employee
under Title VII, which requires a plaintiff to establish first that she is a “hired party” by

3
The EEOC Compliance Manual “constitute[s] a body of experience and informed judgment to
which courts and litigants may properly resort for guidance” but “is entitled to respect only to the extent
of its persuasive power.” EEOC v. SunDance Rehab. Corp., 466 F.3d 490, 500 (6th Cir. 2006) (internal
quotation marks omitted); accord Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 449
n.9 (2003).
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 8

showing that she received “substantial benefits not merely incidental to the activity
performed,” before the district court may consider the common-law agency test from
Darden and Reid. City of New York, 359 F.3d at 91–92 (internal quotation marks
omitted); see R.25 (Dec. 14, 2009 Dist. Ct. Op. at 3 & n.4) (citing O’Connor v. Davis,
126 F.3d 112, 115–16 (2d Cir. 1997), cert. denied, 522 U.S. 1114 (1998)). In this case,
each individual firefighter-member is a “hired party” in that each has a contractual
relationship with the Department—the firefighter-member provides firefighting services
to the Department in exchange for benefits from the Department, including worker’s
compensation coverage, insurance coverage, gift cards, personal use of the Department’s
facilities and assets, training, and access to an emergency fund. See Demski v. U.S.
Dep’t of Labor, 419 F.3d 488, 492 (6th Cir. 2005) (concluding that petitioner—the sole
shareholder of a company that had contracts with the purported “employer”
company—was not an “employee” of the latter company under the Energy
Reorganization Act, 42 U.S.C. § 5851, because “[i]t is undisputed that no contractual
relationship of any sort existed between [the purported “employer” company] and [the
petitioner]”). But we decline to adopt the Second Circuit’s view that, to be a “hired
party,” a plaintiff must demonstrate that she received significant remuneration. See City
of New York, 359 F.3d at 91–92; York v. Ass’n of the Bar of N.Y., 286 F.3d 122, 125–26
(2d Cir.), cert. denied, 537 U.S. 1089 (2002); O’Connor, 126 F.3d at 115–16.

We do not believe that the term “hired party” from Darden and Reid supports an
independent antecedent remuneration requirement. The Supreme Court included the
term “hired party” in Darden only in a direct quote from its decision in Reid, and the
Reid Court’s use of “hired party” was in the context of the “work for hire” provision
from the Copyright Act. Although the Court did not define “hired party” in Reid, it did
define “hiring party”: “By ‘hiring party,’ we mean to refer to the party who claims
ownership of the copyright by virtue of the work for hire doctrine.” 490 U.S. at 739.
We doubt that the Court would define “hiring party” as such while at the same time
considering “hired party” to carry much more substantive weight in requiring that it be
an individual who received significant remuneration for his services. Moreover, the
Court’s instruction to apply the common law of agency is not limited to when the
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 9

individual receives significant remuneration but rather “when Congress has used the
term ‘employee’ without defining it.” Reid, 490 U.S. at 739–40 (emphasis added);
accord id. at 741 (“[T]he term ‘employee’ should be understood in light of the general
common law of agency.”); see also Darden, 503 U.S. at 323 (“[W]e adopt a common-
law test for determining who qualifies as an ‘employee’ under ERISA.”).

Our decision to consider remuneration as a factor when determining whether a
employment relationship exists comports with Darden’s instruction that, when
evaluating a particular relationship, “‘all of the incidents of the relationship must be
assessed and weighed with no one factor being decisive.’” Darden, 503 U.S. at 324
(quoting United Ins. Co., 390 U.S. at 258); accord Clackamas Gastroenterology Assocs.,
P.C. v. Wells, 538 U.S. 440, 450–51 (2003); Johnson, 151 F.3d at 568; Ware, 67 F.3d
at 578. “‘[T]he extent of control . . . is not dispositive,’” and several of the factors listed
in Darden and Reid relate to financial matters. Ware, 67 F.3d at 577–78 (quoting Reid,
490 U.S. at 752). To be sure, “[t]he degree of importance of each factor [will vary]
depending on the occupation and the factual context in which the services are
performed.” Rev. Rul. 87-41; accord Ware, 67 F.3d at 578. But no one factor, including
remuneration, is decisive, and therefore no one factor is an independent antecedent
requirement.

We consider and weigh all incidents of the relationship no matter how the parties
characterize the relationship. The issue of an employment relationship can arise in
numerous different scenarios, for example: partner, Simpson, 100 F.3d at 439;
shareholder/director, Clackamas, 538 U.S. at 442; board members, 110 Cong. Rec. 7218;
welfare work-program participant, City of New York, 359 F.3d at 86–87; volunteer
researcher, Jacob-Mua v. Veneman, 289 F.3d 517, 521 (8th Cir. 2002); graduate student,
Cuddeback v. Fl. Bd. of Educ., 381 F.3d 1230, 1234–35 (11th Cir. 2004), and Ivan v.
Kent State Univ., 863 F. Supp. 581, 585 (N.D. Ohio 1994); intern, O’Connor, 126 F.3d
at 113; medical student, McGuinness, 170 F.3d at 979; medical intern, EEOC Dec. No.
88-1, 1988 WL 192714, at *1; prisoner, Baker v. McNeil Island Corrs. Ctr., 859 F.2d
124, 127–28 (9th Cir. 1988); inmate, EEOC Dec. No. 86-7, 1986 WL 38836, at *1; and
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 10

union steward, Ferroni v. Teamsters Local 222, 297 F.3d 1146, 1152 (10th Cir. 2002),
and Daggitt v. United Food & Commercial Workers Int’l Union, Local 304A, 245 F.3d
981, 987–89 (8th Cir. 2001). Moreover, alleged employee-employer relationships can
be complex and may not fit neatly into one particular categorization.

Here, Bryson put forth evidence that the firefighter-members received worker’s
compensation coverage, insurance coverage, gift cards, personal use of the Department’s
facilities and assets, training, and access to an emergency fund, cf. Pietras, 180 F.3d at
473 (analyzing similar benefits received by volunteer firefighters); Haavistola, 6 F.3d
at 221 (same), and that, for particular portions of the relevant time period, certain
firefighter-members received a one-time, lump-sum retirement payment4 and others
received an hourly wage. The district court, however, limited its analysis to
remuneration without considering any other aspects of the Department’s relationship
with its firefighter-members. Although remuneration is a factor to be considered, it must
be weighed with all other incidents of the relationship. Accordingly, we reverse the
district court’s grant of summary judgment on Bryson’s Title VII claims and remand for
further proceedings consistent with this opinion. The district court on remand can
address whether any further discovery is necessary. Because we remand the case to the
district court for further proceedings on the Title VII claims, we reverse the district
court’s decision dismissing Bryson’s state-law claims so that the district court again may
decide whether to exercise supplemental jurisdiction over these claims. See Bishop v.
Children’s Ctr. for Developmental Enrichment, 618 F.3d 533, 539 (6th Cir. 2010).

4
We agree with the district court that only the two active firefighter-members who were not
already counted as employees are relevant to the analysis of the Department’s Longevity Fund. Associate
and inactive members are, in effect, retired workers and therefore should not be counted as employees for
purposes of § 2000e(b). See Robinson v. Shell Oil Co., 519 U.S. 337, 341 n.2 (1997) (indicating that
§ 2000e(b) “refer[s] to those persons with whom an employer has an existing employment relationship”);
Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404
U.S. 157, 168 (1971) (stating, in analyzing the NLRA, that “[t]he ordinary meaning of ‘employee’ does
not include retired workers; retired employees have ceased to work for another for hire”); Graves, 907 F.2d
at 74 (indicating that employment must involve a duty of service owed to the employer).
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 11

III. CONCLUSION

The district court erred in concluding that remuneration must be an independent
antecedent inquiry when evaluating whether the firefighter-members were employees
of the Department. Because the district court did not consider and weigh all incidents
of the firefighter-members’ relationship with the Department, we REVERSE the district
court’s grant of summary judgment to Defendants on Bryson’s Title VII claims,
REVERSE the district court’s decision declining to exercise supplemental jurisdiction
over Bryson’s state-law claims, and REMAND the case for further proceedings
consistent with this opinion.
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 12

___________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
___________________________________________________

JULIA SMITH GIBBONS, Circuit Judge, concurring in part and dissenting in
part. I agree with the majority that a remand is necessary because, on the factual record
of this case, the question of remuneration cannot be decided as a matter of law.
However, I disagree with the majority’s conclusion that, when evaluating whether an
individual is an “employee” for purposes of Title VII of the Civil Rights Act of 1964
(“Title VII”), the court must weigh remuneration as merely one factor under the
common-law agency test set forth in Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 318, 323–24 (1992), and in Community for Creative Non-Violence v. Reid, 490 U.S.
730, 751–52 (1989). I would instead adopt the two-step inquiry applied by several of
our sister circuits and by the district court, requiring the putative employee to make a
threshold showing of remuneration before analyzing the putative employment
relationship under the common-law agency test.

As the majority correctly observes, this case presents our first occasion to address
the scope of the term “employee” as it applies in the volunteer context. But several
cases from our sister circuits have considered this issue, and their analysis is instructive.
Foremost, in evaluating whether a volunteer firefighter is an “employee” of the fire
department for the purpose of Title VII protection, both the Fourth and Second Circuits
have required a threshold showing of significant remuneration or job-related benefits.
In Haavistola v. Community Fire Co., the Fourth Circuit held that where a volunteer
firefighter had received “indirect but significant remuneration” through benefits
including a disability pension, group life insurance, survivors’ benefits, tax exemptions
for unreimbursed travel expenses, and scholarships for dependents upon death, a
reasonable fact-finder could conclude that an employment relationship existed under
Title VII between the firefighter and her department. 6 F.3d 211, 221–22 (4th Cir. 1993)
(noting that “[t]he district court must leave to a factfinder the ultimate conclusion
whether the benefits represent indirect but significant remuneration . . . or
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 13

inconsequential incidents of an otherwise gratuitous relationship”). Although Haavistola
contended that control—not remuneration—was the “essential element” in defining an
“employee,” the Fourth Circuit disagreed, commenting that “[c]ontrol loses some of its
significance in the determination [of] whether an individual is an employee in those
situations in which compensation is not evident.” Id. at 220–21. The Second Circuit,
citing Haavistola with approval, likewise stated that “the question of whether someone
is or is not an employee under Title VII usually turns on whether . . . she has received
direct or indirect remuneration from the alleged employer” and that “a non-salaried
volunteer firefighter’s employment status under Title VII is a fact question when that
firefighter is entitled to significant benefits.” Pietras v. Bd. of Fire Comm’rs of the
Farmingville Fire Dist., 180 F.3d 468, 473 (2d Cir. 1999) (internal quotation marks
omitted).

Similarly, in Graves v. Women’s Professional Rodeo Association, Inc., the Eighth
Circuit considered whether the membership roster of the Women’s Professional Rodeo
Association (“WPRA”), a non-profit corporation organized for the purpose of
sanctioning rodeo barrel races, could be construed as a list of its employees. 907 F.2d
71, 72 (8th Cir. 1990). Although WPRA did not compensate members directly or
indirectly, certain benefits inured from membership: namely, WPRA offered advances
on rodeo fees and the opportunity for annual recognition as the World Champion Barrel
Racer. Id. Graves, a male rodeo contestant who was denied membership, filed suit
against WPRA, alleging a claim for gender discrimination under Title VII. Id. at 71.
Although Graves argued that WPRA’s control over its membership approximated an
employment relationship, the Eighth Circuit rejected this argument:

For most members, belonging to WPRA and competing on the
professional rodeo circuit is not a remunerative proposition. The
relationship between WPRA and its members simply bears no
resemblance to that between an employer and employee within the
accepted usage of those terms: no compensation is made, only prize
money won—and that is not supplied by the alleged employer nor does
the recipient necessarily come from the postulated class of
employees. . . . Only by skipping this crucial and elementary initial
inquiry—whether there exists an employment relationship, according to
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 14

the ordinary meaning of the words—and jumping straight into verbal
manipulation of the case law . . . can Graves make an implausible
argument sound even marginally plausible.

Id. at 73. The Eighth Circuit further noted that the legislative history of the Civil Rights
Act “explicitly provide[d] that the dictionary definition should govern the interpretation
of ‘employer’ under Title VII” and that “[c]ompensation by the putative employer to the
putative employee in exchange for his services . . . is an essential condition to the
existence of an employer-employee relationship.”1 Id. (stating that “employee” means
“one employed by another usu. in a position below the executive level and usu. for
wages” (quoting Webster’s Third New Int’l Dictionary 743 (unabridged) (1981))). Thus,
Haavistola, Pietras, and Graves make clear that, in evaluating whether a volunteer is an
“employee” under Title VII, several of our sister circuits have required plaintiffs to make
a threshold showing of “indirect but significant remuneration,” Haavistola, 6 F.3d at
222, or “significant benefits,” Pietras, 180 F.3d at 473.

The majority, however, states that we cannot require a showing of remuneration
as an antecedent inquiry, independent of the common-law agency test, because
“employee-employer relationships can be complex and may not fit neatly into one
particular categorization.” (Majority Op. at 10.) But, courts have applied this two-step
test in a variety of factual circumstances, notwithstanding that the putative employment
relationship is “complex.” For example, in United States v. City of New York, the
Second Circuit held that the district court erred by finding as a matter of law that four
welfare recipients who participated in New York City’s Work Experience Program, a
mandatory welfare work program, were not “employees” within the meaning of Title VII
and thus were not entitled to Title VII’s protections. 359 F.3d 83, 87 (2d Cir. 2004). In
determining whether an individual was an employee for Title VII purposes, the court
applied a two-part test:

1
Although the Supreme Court has not defined “employee” in the Title VII arena, it has construed
the meaning of this term under the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq. See
NLRB v. Town & Country Elec., Inc., 516 U.S. 85 (1995). As in the Title VII context, “employee” is
defined broadly under the NLRA: “The term ‘employee’ shall include any employee . . . .” Id. at 89
(quoting 29 U.S.C. § 152(3)). There, the Court noted that “[t]he ordinary dictionary definition of
‘employee’ includes any ‘person who works for another in return for financial or other compensation.’”
Id. at 90 (quoting American Heritage Dictionary 605 (3d ed. 1992)).
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 15

First, the plaintiff must show she was hired by the putative employer. To
prove that she was hired, she must establish that she received
remuneration in some form from her work. This remuneration need not
be a salary, but must consist of substantial benefits not merely incidental
to the activity performed. Once plaintiff furnishes proof that her putative
employer remunerated her for services she performed, we look to the
thirteen factors articulated by the Supreme Court in Community for
Creative Non-Violence v. Reid, 490 U.S. 730 (1989) to determine
whether an employment relationship exists.

Id. at 91–92 (internal citations and quotation marks omitted). On the facts of the case,
the court held that “the relationship alleged here—which includes cash payment, the
related benefits, and the requirement that the plaintiffs’ work be useful—if proved,
establishes the plaintiffs as employees for the purposes of Title VII.” Id. at 97.

The Tenth Circuit also has required a showing of remuneration in evaluating
whether a medical student could state a claim for discrimination against the university
under Title I of the Americans with Disabilities Act (“ADA”). See McGuinness v. Univ.
of N.M. Sch. of Med., 170 F.3d 974, 979 (10th Cir. 1998). The court remarked that “a
university[] may confer certain benefits on an individual and exercise a modicum of
control over him without establishing a master-servant relationship” and that Graves’s
Title I claim failed because, “as a threshold matter,” he made no showing of
remuneration. Id.; cf. Seattle Opera v. NLRB, 292 F.3d 757, 762 (D.C. Cir. 2002)
(applying the two-step test in determining whether auxiliary choristers were employees
of the opera under the National Labor Relations Act, 29 U.S.C. § 152(3)); O’Connor v.
Davis, 126 F.3d 112, 116 (2d Cir. 1997) (holding that an unpaid student intern was not
an “employee” under Title VII because the “preliminary question of remuneration [was]
dispositive”: the intern “received . . . no salary or other wages, and no employee benefits
such as health insurance, vacation, or sick pay, nor was she promised any such
compensation”). The court further stated that a student is not considered an employee
of the university “[u]nless [the] student receives remuneration for the work he performs.”
McGuinness, 170 F.3d at 979.

In accordance with the viewpoints of our sister circuits, I would “turn to
common-law principles to analyze the character of an economic relationship ‘only in
No. 10-3055 Bryson v. Middlefield Volunteer Fire Dep’t et al. Page 16

situations that plausibly approximate an employment relationship.’” Davis, 126 F.3d at
115 (quoting Graves, 907 F.2d at 74). And, no “plausible” employment relationship
exists “[w]here no financial benefit is obtained by the purported employee from the
employer.” Id. at 115–16. Thus, in analyzing whether an employer-employee
relationship exists within the meaning of Title VII, I would adopt the two-step test
applied by other circuit courts: first, the plaintiff must show that she was hired by the
putative employer by “establish[ing] that she received remuneration in some form from
her work,” and, second, after the plaintiff establishes remuneration, the court will apply
the common-law agency test set forth in Darden and Reid “to determine whether an
employment relationship exists.” City of New York, 359 F.3d at 91–92. While “[t]his
remuneration need not be a salary, [it] must consist of substantial benefits not merely
incidental to the activity performed.” Id. at 92 (internal quotation marks omitted).

Here, Bryson has offered evidence that the volunteer firefighters in her
department received benefits including workers’ compensation coverage, insurance
coverage, gift cards amounting to $300 or less, training, access to an emergency fund,
and personal use of the department’s facilities and assets. I would therefore remand this
case in order for a jury to decide the disputed issue of “whether the benefits represent
indirect but significant remuneration . . . or inconsequential incidents of an otherwise
gratuitous relationship.” Haavistola, 6 F.3d at 222. But see Evans v. Wilkinson, 609 F.
Supp. 2d 489, 494–97 (D. Md. 2009) (holding that benefits, including a length of service
program, a first-time homeowner’s assistance program, and a scholarship program, were
insufficient to establish an employment relationship between a volunteer emergency
medical technician and the rescue squad). Despite my agreement that remand is proper,
I disagree with the majority’s conclusion that consideration of remuneration is just one
factor of the common-law agency test and therefore dissent from its analysis.