[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 25, 2004
No. 03-12634 THOMAS K. KAHN
CLERK
D. C. Docket No. 01-01650 CV-T-30-TBM
SANDY CUDDEBACK,
Plaintiff-Appellant,
versus
FLORIDA BOARD OF EDUCATION,
UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES,
UNIVERSITY OF SOUTH FLORIDA,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Florida
(August 25, 2004)
Before DUBINA and HILL, Circuit Judges, and OWENS*, District Judge.
_____________________
*Honorable Wilbur D. Owens, Jr., United States District Judge for the Middle District of
Georgia, sitting by designation.
DUBINA, Circuit Judge:
Appellant Sandy Cuddeback appeals the district court’s order granting
summary judgment to the Florida Board of Education, the University of South
Florida Board of Trustees, and the University of South Florida (collectively the
“University”) on her gender discrimination claim brought pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.1 For the reasons that follow,
we affirm.
I. BACKGROUND
A. Facts
Cuddeback, a female, was a graduate student at the University of South
Florida, conducting cancer research in the laboratory of Dr. Hong Gang Wang, a
University professor. Cuddeback’s course work obligations required her to
complete a rotation in three laboratories. The University provided the equipment
and training. However, much of Cuddeback’s work in the laboratory was done for
the purpose of completing her dissertation and satisfying her program’s publishing
requirements. She received a stipend and benefits for her work, as well as sick
and annual leave. A comprehensive collective bargaining agreement also
1
Cuddeback also alleged that the University violated the Florida Civil Rights Act, Fla. Stat.
§ 760.01. On appeal, however, she does not challenge the district court’s grant of summary
judgment on this state law claim.
2
governed her employment relationship. In her first year at the laboratory, the
University’s Department of Pharmacology and Therapeutics funded her stipend of
$15,000 with a waiver of tuition. After Cuddeback’s first year, Dr. Wang’s
individual faculty research grant funded Cuddeback’s work. While Cuddeback
received a stipend for her work, the record does not reflect the amount.
Dr. Wang evaluated Cuddeback’s performance on a semi-annual basis, and
his evaluation was included in her general academic evaluation presented to her by
the University. The department faculty gave Cuddeback the highest possible
rating in her September 1998, May 1999, and October 1999 evaluations.
According to Cuddeback in the fall of 1999, Dr. Wang told her that she was his
best student and had the most potential of all the students in the department.
However, Dr. Wang stated that, beginning in late 1999, he informed
Cuddeback of his concerns regarding her attendance, lab notebooks, and lack of
communication. In his March 10, 2000, evaluation of Cuddeback, Dr. Wang
commented on her “(1) failure to obey necessary instructions, (2) unstable
productivity due to changes of mood, (3) argumentative without scientific
standpoint, (4) disrespect to colleagues, and (5) lack of focusing on the project.”
Furthermore, both Michael Lee, another research assistant, and a lab technician,
3
who worked with Cuddeback in Dr. Wang’s lab, stated that they observed
conflicts between Dr. Wang and Cuddeback.
The University asserts that, in January 2000, Dr. Wang asked Cuddeback to
improve in several areas. The University alleges that, after such request,
Cuddeback told Dr. Wang that she would leave his lab at the end of the semester.
Cuddeback alleges, however, that Dr. Wang informed her in January 2000 that she
would be leaving his lab at the end of April. On April 3, 2000, Cuddeback sent a
message to a Dr. Polson advising him of a severe hand injury and requesting time
off until April 10, 2000. She did not notify Dr. Wang of the injury or request a
leave of absence. Dr. Polson then attempted to notify Cuddeback by certified
letter that Dr. Wang was unaware of the reasons for her absence and to request that
Cuddeback contact Dr. Wang immediately to discuss the matter. Cuddeback did
not accept the certified letter containing this request, despite three delivery
attempts. Cuddeback testified that she thought that the matter was none of Dr.
Wang’s concern.
On May 1, 2000, after Cuddeback applied for a full-time job with Hilton
Reservations Worldwide,2 Cuddeback requested a leave of absence from Dr.
2
The University argues that full-time employment outside of the graduate program is a
violation of the program’s requirements.
4
Krzanowski, acting chair of the University’s Department of Pharmacology and
Therapeutics, again without informing Dr. Wang. Dr. Krzanowski granted the
request through August 1, 2000. However, on May 9, 2000, Dr. Wang wrote
Cuddeback informing her that her lack of improvement in the areas identified in
her evaluation and her absence from his lab since April 20, without notice to him,
would result in the nonrenewal of her appointment. Cuddeback does not dispute
that she failed to show up in Dr. Wang’s lab after April 20, 2000,3 but Cuddeback
claims that she kept Dr. Wang apprized of her efforts to obtain a medical leave of
absence.4
After Cuddeback left Dr. Wang’s lab, Hirohito Yamaguchi, a male, took
over Cuddeback’s research duties. Yamaguchi had joined the lab in March 2000
and worked on his own research projects, but then finished Cuddeback’s research
project after she left the lab for publication of a journal article. Cuddeback alleges
that Dr. Wang paid Yamaguchi to finish the research project initiated by
Cuddeback from the stipend funds that originally were to be paid to her. The
3
Cuddeback attempts to counter the University’s assertion that she failed to show up in the
lab after January 19, 2000. However, because the University asserted only that Cuddeback failed
to show up after April 20, 2000, Cuddeback’s counter-argument regarding her physical presence in
the lab between January 19, 2000, and April 20, 2000, is irrelevant. Dr. Wang concedes that he does
not know how much time Cuddeback spent in the lab between January and April.
4
Cuddeback’s testimony here seems inconsistent with her testimony that she thought that
the matter was not any of Dr. Wang’s concern.
5
University alleges that none of the money appropriated as Cuddeback’s stipend
was used to pay Yamaguchi. However, the district court found from the evidence
that “Hirohito Yamaguchi took over plaintiff’s position in Dr. Wang’s lab after she
was terminated. Dr. Wang paid Yamaguchi to complete the experiments and
research Plaintiff worked on from Dr. Wang’s stipend money that was previously
allocated to pay the Plaintiff.” [R. Vol. 1 at Tab 60].
B. Procedural History
Cuddeback filed a complaint alleging gender discrimination in violation of
Title VII. The University moved for summary judgment arguing that Title VII did
not apply because Cuddeback was a student rather than an employee; that
Cuddeback failed to establish a prima facie case because she did not show that she
was qualified for her job and performed satisfactorily, suffered an adverse
employment action, and was treated less favorably than similarly-situated males;
and that Cuddeback did not show that the University’s articulated reason for
terminating her employment was a pretext for discrimination. Cuddeback
attempted to demonstrate a prima facie case through three alternative theories.
First, Cuddeback argued that she was qualified for her job, terminated, and
replaced by a male. Second, Cuddeback argued that, at the time of her
termination, the defendants retained Lee, a comparable or lesser qualified male
6
employee. Third, Cuddeback argued that Lee, a similarly-situated employee,
engaged in nearly identical misconduct without being terminated.
In granting the University’s motion for summary judgment, the district
court found that Cuddeback was an employee for Title VII purposes because the
University supervised her, provided the equipment that she used, paid her
biweekly, and gave her sick and annual leave. The district court also supported its
finding with the additional facts that a comprehensive collective bargaining
agreement covered her employment relationship, and that the decision to terminate
her was an employment, not an academic, decision. The district court then found
that Cuddeback failed to establish a prima facie case of gender discrimination
because Lee was not a similarly-situated or comparable employee. The district
court did not consider Cuddeback’s alternative arguments regarding her prima
facie case, including that (1) she was a member of a protected class; (2) she was
qualified for the job; (3) she suffered an adverse employment action; and (4) she
was replaced by someone outside the protected class. The district court also did
not examine whether the University had articulated a legitimate,
nondiscriminatory reason for Cuddeback’s termination or whether the proffered
explanation was pretextual.
Cuddeback then perfected this appeal.
7
II. ISSUES
(1) Whether the district court erred in determining that Cuddeback was an
employee for the purposes of Title VII.
(2) Whether the district court erred in granting summary judgment on
Cuddeback’s gender discrimination claim.
III. STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo. Levinson v.
Reliance Standard Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir. 2001).
IV. DISCUSSION
A. A Title VII “Employee”
The University argues that Cuddeback was not an employee for purposes of
Title VII. Title VII defines an “employee” as “an individual employed by an
employer.” 42 U.S.C. § 2000e(f). This court has not addressed the specific issue
of whether a graduate student assistant constitutes an employee for purposes of
Title VII. However, generally, this circuit has adopted the “economic realities”
test to determine whether a Title VII plaintiff is an employee. See Cobb v. Sun
8
Papers, Inc., 673 F.2d 337, 340-41 (11th Cir. 1982). Under this test, the term
“employee” is “construed in light of general common law concepts” and “should
take into account the economic realities of the situation,” “viewed in light of the
common law principles of agency and the right of the employer to control the
employee.” Id. Specifically, the court should consider factors such as whether the
defendant directed the plaintiff’s work and provided or paid for the materials used
in the plaintiff’s work. Id. at 341. Because the question presented is whether
Cuddeback, as a graduate research assistant, is an “employee,” we conclude that
the economic realities test should apply.
Applying the economic realities test, the fact that much of Cuddeback’s
work in Dr. Wang’s lab was done for the purpose of satisfying the lab-work,
publication, and dissertation requirements of her graduate program weighs in favor
of treating her as a student rather than an employee. However, the following facts
weigh in favor of treating Cuddeback as an employee for Title VII purposes: (1)
she received a stipend and benefits for her work; (2) she received sick and annual
leave; (3) a comprehensive collective bargaining agreement governed her
employment relationship with the University; (4) the University provided the
equipment and training; and (5) the decision not to renew her appointment was
based on employment reasons, such as attendance and communication problems,
9
rather than academic reasons. Although the record does not indicate the amount
that she was paid for the year in which she was terminated, the record does
demonstrate that she was paid during that year, and was also paid $15,000 in her
first year with Dr. Wang.
Courts that have considered whether graduate students constitute employees
for the purposes of Title VII have distinguished between their roles as employees
and as students, and have typically refused to treat them as “employees” for Title
VII purposes only where their academic requirements were truly central to the
relationship with the institution. Compare Stilley v. University of Pittsburgh of the
Commonwealth Sys. of Higher Educ., 968 F. Supp. 252, 261-62 (W.D. Pa. 1996)
(finding that a plaintiff was an employee when she was a student researcher); Ivan
v. Kent State Univ., 863 F. Supp. 581, 585-86 (N.D. Ohio 1994) (finding that a
graduate student researcher was an employee where she was under an employment
contract, was paid biweekly, and had retirement benefits withheld); with Jacob-
Mua v. Veneman, 289 F.3d 517, 520-21 (8th Cir. 2002) (concluding that a
volunteer graduate student researcher was not an employee because she was not
financially compensated for her work); Pollack v. Rice Univ., 28 Fair Empl. Prac.
Cas. 1273 (S.D. Tex. 1982) (finding that paid research or instruction by the
plaintiff was “attendant to his capacity as a graduate student” because it was a
10
central part of the graduate program and, therefore, the plaintiff’s status was that
of “student” rather than “employee”). Therefore, even though Cuddeback’s course
work obligations required her to complete a rotation in three laboratories and
much of her work in Dr. Wang’s lab was to fulfill the program’s requirements, the
economic realities of this particular situation lead us to conclude that the district
court correctly found that Cuddeback was an employee for Title VII purposes. See
United States v. New York City, 359 F.3d 83 (2d Cir. 2004) (holding, in an
analogous situation and in the first circuit ruling of its kind, that people required to
work to receive welfare benefits are employees entitled to federal protection
against sexual and racial harassment because the benefits they receive constitute
remuneration for their work and because they meet the other elements of the
common law definition of employee).
B. Cuddeback’s Gender Discrimination Claim
To establish a prima facie case of discriminatory discharge, the plaintiff
must show that she (1) was a member of a protected class, (2) was qualified for the
job, (3) suffered an adverse employment action, and (4) was replaced by someone
outside the protected class. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) (applying the familiar
McDonnell Douglas burden-shifting framework in an age discrimination case).
11
Once a plaintiff has established a prima facie case of discrimination, the burden
shifts to the employer to offer a nondiscriminatory legitimate reason for the
adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973). The burden then shifts
back to the plaintiff to show that the employer’s stated reason was a pretext for
discrimination. Id. If the plaintiff does not satisfy her burden of establishing a
genuine issue of material fact that the employer’s reason was pretextual, the grant
of summary judgment in favor of the employer is proper. See Combs v.
Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997).
This court may affirm a judgment on any legal ground, regardless of the
grounds addressed and relied upon by the district court. See National R.R.
Passenger Corp. v. Roundtree Transp. and Rigging, 286 F.3d 1233, 1263 (11th
Cir. 2002) (explaining that an appellate court may affirm the district court’s grant
of summary judgment “as long as the judgment entered is correct on any legal
ground regardless of the grounds addressed, adopted, or rejected by the district
court”) (internal quotation and citation omitted).
Cuddeback established a prima facie case of gender discrimination by
showing that (1) she is a female; (2) she was qualified for the job; (3) the
University terminated her employment; and (4) someone outside the protected
12
class replaced her. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d
1181, 1185 (11th Cir. 1984). Because a male, Hirohito Yamaguchi, took over
Cuddeback’s research duties when she was terminated, the district court erred in
finding Cuddeback failed to establish a prima facie case. See Rollins v.
TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, the grant of
summary judgment in the University’s favor was otherwise proper because the
record clearly demonstrates that Cuddeback failed to establish pretext.5
The University met its burden of showing a nondiscriminatory reason for
the employment action by proffering that Cuddeback was terminated for
performance issues. Cuddeback then attempted to show that the University’s
reason was pretextual by arguing that the University’s statements were
inconsistent. For example, Cuddeback argues that the abrupt change in Dr.
Wang’s opinion of her performance, the lack of any convincing explanation for
the sudden negative view of her performance, the lack of any meaningful
opportunity for her to improve any perceived deficiencies in her performance, and
the lack of support for Dr. Wang’s views by other faculty members all evidence
5
If we were so inclined, we could remand the pretext issue to the district court to consider
in the first instance. However, where the record is so clear as to the final outcome of the case and
is sufficiently developed for us to decide the issue, we conclude that a remand here would be a waste
of time and judicial resources.
13
pretext. However, the record clearly shows that the change in Dr. Wang’s opinion
occurred over a span of at least five months; Dr. Wang performed the evaluation
detailing the deficiencies in early March and listed ways for Cuddeback to
improve; Dr. Wang began discussing the deficiencies in Cuddeback’s work with
her as early as January; Cuddeback admits that she did not go to the lab after April
20, 2000; and Cuddeback did not inform Dr. Wang of the reasons for her absence.
Therefore, we conclude from the record that Cuddeback failed to demonstrate that
the University’s nondiscriminatory reasons were pretextual. Accordingly, the
district court’s grant of summary judgment was proper.
V. CONCLUSION
We hold that the economic realities test should be used to determine
whether a person acting as a graduate research assistant is an employee for the
purposes of Title VII. Applying that test to this case, we conclude that Cuddeback
was an employee. However, because we conclude from the record that Cuddeback
cannot demonstrate that the University’s nondiscriminatory reasons for her
discharge were pretextual, Cuddeback’s gender discrimination claim fails and the
district court properly granted summary judgment in favor of the University.
AFFIRMED.
14
Sandy Cuddeback v. FL Board of Education
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2004-08-25
Citations: 381 F.3d 1230
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