Alberty, the First Circuit Court of Appeals

¶ … Alberty, the First Circuit Court of Appeals affirmed the district court's grant of summary judgment in Defendant's favor, holding that under 42 U.S.C. § 2000e (Title VII of the Civil Rights Act) and P.R. Laws Ann. Tit. 29, 146 et seq. And 467 et seq., there was no genuine issue of material fact that Plaintiff was an "independent contractor," not an "employee." The issue on appeal was whether there were any genuine issues of material fact evidencing Defendant's unlawful discrimination against Plaintiff in violation of Title VII and Puerto Rico's anti-discrimination laws. The Court, however, used a de novo standard of review to side-step the issue of discrimination and focus instead on the parties' legal relationship. Using First Circuit Court precedent, the Court reasoned that since it could affirm a summary judgment ruling "on any basis apparent from the record," it would focus its analysis on the parties' legal relationship. Although, as explained below, this reasoning and logic is faulty on numerous levels, the Court nevertheless analyzed Plaintiff's legal status by using a "common law agency test," as dictated by circuit court precedent. The Court noted that since the test was used by the First Circuit Court in analyzing an ERISA claim -- which had an identical definition of "employee" -- the Court was justified in using it the instant matter. Under the agency test, the Court held that based on the undisputed facts, "a reasonable fact finder could only conclude that Alberty was an independent contractor." Accordingly, since an independent contractor is not an "employee," and because Title VII only covers "employees," Plaintiff essentially had no legal basis for her claim, and therefore the district court was justified in granting summary judgment for Defendant.

Motion for Summary Judgment: "A court should grant summary judgment 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). Stated differently, if there really is only one answer to a disputed issue, and the moving party is entitled to judgment as a matter of law on that issue, then the court should resolve that issue in the moving party's favor.

The Common Law Agency Test: Under this test, the 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. Under this test, the court must look at the facts and determine whether the "hiring party" controls how the "hired party" does what it was hired to do, and whether the "hiring party" controls how the "hired party" accomplishes its objective. The laundry list of accompanying factors above is meant to assist the court in making these determinations.

Using the summary judgment standard above, the Court affirmed the district court's decision by avoiding the "factual" prong of the standard and instead focusing on the "legal" prong, i.e., whether Plaintiff qualified for protection under Title VII. There is a fundamental flaw, however, with the Court's decision to focus solely on the parties' legal relationship. According to the procedural posture of the case, the district court initially granted partial summary judgment on Plaintiff's status as an "employee." At trial, the court nullified its decision by granting Defendant's motion for judgment as a matter of law, finding that Plaintiff was in fact an independent contractor. The Circuit Court, however, reversed the trial court on the issue of Plaintiff's status as an employee, which meant that the original judgment -- that Plaintiff was an "employee" -- stood and was binding on the parties. Subsequently, when the case was reassigned to a magistrate judge, Defendant filed a motion on this very issue, and according to the Alberty court, "the district court entertained WIPR's summary judgment motion but denied it because of factual disputes." Alberty, at 4 (emphasis added). The summary judgment standard is clear: The moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Clearly there were issues of material fact as to Plaintiff's status as an employee which precluded summary judgment on that issue, if in fact the district court based its decision on Plaintiff's legal status, which it did not.

Assuming, arguendo, that the Court was justified in examining the parties' legal relationship, as opposed to the issue of whether Plaintiff "failed to present evidence of unlawful discrimination," the Court's use of the "common law agency test" is unpersuasive. First, the Court concluded that Plaintiff's skill set qualified her as an "independent contractor." In support of this proposition the Court cited Aymes v. Bonelli, 980 F.2d 857, 862 (2d Cir. 1992). In Aymes, the court recounted that "architects, photographers, . . . artists, [and] drafters" are "highly skilled independent contractors." The Court then recites Plaintiff's skills, but fails to provide any analogy between her skills and the professions discussed in Aymes. The Court also reasoned that Plaintiff, not Defendant, provided the "tools and instrumentalities" for her to perform. Yet, as pointed out by Plaintiff, and summarily dismissed by the Court, Plaintiff could not logically perform her "job" without the Defendant's "tools and instrumentalities," e.g., "equipment for filming and producing the show." The Court attempts to analogize Plaintiff's case to that of a symphony, but fails to draw a logical distinction between a musician (whose "instrument" is the primary "tool" used in the performance) and Plaintiff (whose "image-related supplies" are ancillary to the necessary equipment for filming a show).

With respect to assignment of work, method of payment, failure to provide Plaintiff with benefits, and tax treatment, the Court's reasoning supports its conclusion that Plaintiff was an independent contractor. Indeed, based on the fact that (1) Defendant could not assign Plaintiff work in addition to filming; (2) Plaintiff's pay was contingent on completing the filming; (3) Defendant did not provide Plaintiff with benefits; and (4) Plaintiff's taxes classified her income as deriving from professional services, the Court's arguments were logical. Nevertheless, as the Court itself stated, "no one factor is dispositive." Thus, the Court's conclusion that "a reasonable fact finder could only conclude that Alberty was an independent contractor" is misplaced and not fully supported by the facts, as discussed previously.

Finally, the Court's rejection of the Puerto Rico Department of Labor's ("PRDOL") determination that Plaintiff was an "employee" ignores the procedural posture of the case. The Court correctly concluded that the PRDOL's determination of Plaintiff's employee status does not control the Court's decisions on federal law, i.e., Title VII. The Court failed to explain, however, how its conclusion comports with its holding that Plaintiff was "not covered by . . . The Puerto Rico anti-discrimination laws." If an agency of the territory determined that Plaintiff was an employee under its own law, then the Court had to apply its reasoning to the territory law as well. By focusing solely on Title VII, and not addressing Puerto Rico law, the Court's holding is not fully supported.