Explaining that the 13-factor test under the Supreme Court’s decision in Reid applied to more than the independent-contractor-versus-employee context, and finding no error in a district court instructing the jury on the test and submitting to the jury the question of whether an electrician was a university “employee” as defined by Title VII, the Second Circuit affirmed judgment against his race discrimination and retaliation claims (Knight v. State University of New York at Stony Brook, January 29, 2018, per curiam).
Terminated after reporting racist graffiti. The electrician, who is African-American, was a member of IBEW Local 25, which referred electricians to the university when additional workers were needed for large construction projects. In April 2011, the electrician began working on a project for a psychiatric emergency facility and, sometime during the summer or fall, he discovered racist graffiti in the bathroom he used at work every morning. He reported the graffiti to the foreman, who was also a union member, and to the shop steward. He claimed he was terminated two weeks later, though the stop steward testified that the electrician’s work ended a full two months after his report. Either way, he worked on the project for around six months.
Lawsuit. The electrician filed suit for race discrimination and retaliation. At trial, one of the main disputes was whether he was an “employee” under Title VII, and the parties submitted conflicting evidence. At the close of evidence, the court denied the employee’s motion for judgment as a matter of law and submitted the issue to the jury, providing a list of 13 factors set forth by the Supreme Court in Cmty. for Creative Non-Violence v. Reid to guide the determination of employee status.
The parties presented conflicting evidence on several factors. The electrician elicited testimony that the university provided some tools, tending to show he was an employee; but the testimony also revealed that electricians were required to supply their own basic tools, suggesting the opposite. He also presented evidence that the university controlled the manner and means by which the work was done because he received specific assignments every morning and had no discretion over how or when the work was done. But Stony Brook countered by arguing that electricians were given only an overview of the work but had significant control over the details. Also, the benefits provided by the university were in fact paid to the union, which was charged with dispersing benefits to individual members. Many factors did not favor one party over the other. Ultimately, the jury found that the electrician was not an employee. He appealed.
No error in submitting question to jury. Affirming, the appeals court rejected the electrician’s argument that employee status was a question of law that the court, and not the jury, should have decided. The appeals court pointed out that it had rejected that very argument in a prior case, Kirsch v. Fleet Street, Ltd. Without deciding whether employee status was a question of law or fact, it had concluded that “submission of that question to the jury” did not warrant a new trial.
The Kirsch court had explained that the district court always has discretion to call for a general verdict, so there was no harm to the plaintiff’s rights from submitting the “employee” issue to the jury on general instructions rather than having the jury decide only narrow factual questions. The Kirsch court also noted that whether an individual is an employee is “regularly presented to juries that are instructed to return general verdicts, informed by the court’s instructions on the law and given the direction that if they find that the plaintiffs in question were employees … they should simply state that they find in favor of the plaintiffs.”
Here, with that in mind, the court found that the district court committed no error by submitting the question of whether the electrician was the university’s employee to the jury, whether by general verdict or special question.
Jury instruction on Reid factors ok too. Also rejected was the electrician’s argument that, because the Reid factors are only intended to distinguish employees from independent contractors, it was improper to give them to the jury here. The appeals court explained that although the Reid test may distinguish employees from independent contractors, that’s not its only function. Rather, the Reid factors are a method of analysis Congress intended to require for determining employee status generally under Title VII. Thus, the lower court did not err when it instructed the jury to use those factors.
While the electrician also argued that, even if the Reid factors apply, they compel the conclusion that he was an employee. The appeals court explained that he waived that sufficiency-of-the-evidence argument by not raising it in a renewed motion for judgment as a matter of law following the jury’s verdict.
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