Volunteer campground hosts who received per diem, free utilities may be employees under Title VII
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Monday, June 8, 2020

Volunteer campground hosts who received per diem, free utilities may be employees under Title VII

By Wayne D. Garris Jr., J.D.

The husband and wife volunteered as hosts at a campground managed by the Bureau of Land Management until they were terminated for alleged poor performance.

Granting in part and denying in part a federal agency’s motion for summary judgment, a federal district court in New Mexico held that genuine issues of fact existed as to whether a married couple who served as volunteer hosts at a government-run campground were employees under Title VII. The government provided the couple with a per diem and free utilities, the court found, so a jury must decide whether these benefits were "substantial or significant" remuneration under the law. Furthermore, because the agency failed to provide the volunteers with EEO training, a genuine issue of fact existed as to whether the couple had notice of the EEOC’s 45-day time limit (Bittermann v. Zinke, June 5, 2020, Brack, R.).

VSA. The plaintiffs, a married couple, served as volunteer hosts at a New Mexico campground managed by the Bureau of Land Management. Their work was governed by a volunteer service agreement (VSA). The VSA’s were one-year agreements that could be terminated at any time.

Under the terms of the VSA, the couple’s duties included greeting campers, collecting fees, cleaning restrooms and campsites, answering questions from the public, and enforcing campground rules. They were required to work eight hours per day, five days per week, but often worked longer hours when necessary.

The agency did not compensate or provide health benefits to the couple. The agency did provide them with other benefits including a $20 per diem reimbursement stipend, amounting to $100 per week each; a campground site to park their camper, worth $15/day or $5,475/year; free utilities; a landline phone; reimbursement for gas mileage on their personal vehicle for work-related travel; use of an agency vehicle; uniforms; and coverage for work-related injuries or tort claims.

Harassment. The wife alleged that their supervisor sexually harassed her on several occasions including complimenting her "form-fitting" clothes; telling her sexually-related jokes; giving her hugs that were too long and unwelcome; seeking time alone with her; inviting her to accompany him on rafting trips or out for drinks; creating individual training sessions with her; encouraging her to "bend over more often"; standing close to her and peering down her blouse; standing in the doorway to block her exit; and touching her buttocks.

The wife alleged that after about one month of the harassment, she told her supervisor "she was not interested in his advances." She also alleged that after she confronted her supervisor, he "began to fabricate reasons to report that she was not a good employee, criticize how she answered the phone, and make fun of her accent."

Termination. Several agency managers decided to terminate the couple after they received a complaint from another volunteer and two campers that the couple failed to assist them after they reported feeling threatened by other campers. In addition to the complaint, the agency alleged that it received other complaints from campers about cleanliness, the wife’s tardiness, and the husband’s poor campground upkeep. The agency notified the couple that they were being terminated due to the number of camper complaints. The couple filed suit alleging sexual harassment and retaliation in violation of Title VII.

Volunteers or employees? The employer argued that the couple could not bring claims under Title VII because they were volunteers, not employees. In the Tenth Circuit, federal volunteers must prove that they receive remuneration for their work, then the court applies the common-law agency test to determine whether the volunteer can be classified as an employee. However, the remuneration must be substantial or significant.

Here, the court found that a genuine issue of fact existed as to whether the $20 stipend, camper parking, and free utilities constituted substantial or significant remuneration. The agency argued that these benefits were not substantial or significant because "the sum total of the [couple’s] remuneration does not equal the 2017 minimum wage, which necessitates a finding that they were not employees." The court rejected this argument noting that there was no case law to support the agency’s minimum wage standard.

Lastly, the court noted that the couple’s supervisor promised them future employment and that several agency volunteers had become paid employees. Citing the EEOC compliance manual, the court stated that volunteers may be protected under federal employment laws when "volunteer work is required for regular employment or regularly leads to regular employment with the same entity."

Timeliness. Next, the agency argued that many of the couple’s allegations occurred outside of the EEOC’s 45-day reporting deadline. However, the timeline can be extended if a complainant shows that "he or she was not notified of the time limits and was not otherwise aware of them." Here, the agency did not provide EEO training to the couple. Further, while the couple’s deposition testimony showed that they had some familiarity with the EEOC from prior employment, it did not establish that they were aware of the 45-day reporting deadline. Therefore, the court found an issue of fact remained on whether the couple had sufficient notice of the 45-day time limit.

Sexual harassment. The employer only opposed the wife’s sexual harassment claim on timeliness grounds and failed to respond to her allegations against her supervisor. Thus, the court denied summary judgment on her sexual harassment claim.

Wife’s retaliation claim. The wife alleged that she was subjected to a retaliatory hostile work environment, including being ridiculed by her supervisor after she confronted him about his harassing behavior. The agency’s only response to the wife’s claim was to assert that she did not confront her supervisor and, thus, never engaged in protected activity. The court rejected this argument finding that the wife’s testimony was enough to create an issue of fact as to whether she confronted her supervisor about his conduct. Because the agency did not challenge any other elements of the retaliation claim, its motion was denied.

Couple’s retaliation claim. Lastly, the couple alleged that they were terminated in retaliation for the wife’s complaints about sexual harassment. On this claim, however, the couple failed to present enough evidence that the agency’s legitimate, nondiscriminatory reason for terminating her, complaints about their performance, was pretext for discrimination. Instead, the couple relied only the temporal proximity between the wife’s complaints and their termination. Under Tenth Circuit precedent, temporal proximity can be a factor in showing pretext, but is not enough to defeat summary judgment.

The case is No. CIV 18-041 RB/KK.

Attorneys: Carlos M. Quinones (Quinones Law Firm) for Meda Bittermann. Roberto D. Ortega, U. S. Attorney's Office, for Ryan Zinke.

Cases: Discharge SexualHarassment Retaliation EmployeeStatus PublicEmployees Procedure CoverageLiability GCNNews NewMexicoNews

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