151 F.3d 564 (6th Cir. 1998), 97-1041, Johnson v. City of Saline

Docket Nº:97-1041.
Citation:151 F.3d 564
Party Name:Jotham Clement JOHNSON, Plaintiff-Appellant, v. CITY OF SALINE, et al., Defendants-Appellees.
Case Date:August 06, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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151 F.3d 564 (6th Cir. 1998)

Jotham Clement JOHNSON, Plaintiff-Appellant,


CITY OF SALINE, et al., Defendants-Appellees.

No. 97-1041.

United States Court of Appeals, Sixth Circuit

August 6, 1998

Argued March 17, 1998.

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[Copyrighted Material Omitted]

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Mark V. Heusel (briefed), Marian L. Faupel (argued and briefed), John K. Kline (briefed), Faupel & Associates, Ann Arbor, Michigan, for Plaintiff-Appellant.

Michael J. Bommarito, Martens, Ice, Geary, Klass, Legghio, Israel & Gorchow, Southfield, Michigan, Stephen J. Rhodes, Kevin T. McGraw (argued and briefed), R. Lance Boldrey (briefed), Foster, Swift, Collins & Smith, Lansing, Michigan, for Defendants-Appellees.

Before: BOGGS, NORRIS, and MOORE, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which ALAN E. NORRIS, J., joined. MOORE, J. (p. ----), delivered a separate opinion concurring in part.


BOGGS, Circuit Judge.

Jotham "Jot" Johnson appeals from the dismissal by the district court of his claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The district court's application of Title II of the ADA was improperly narrow, and so we vacate in part and remand for further proceedings.



Johnson has ankylosing spondylitis, for which he has received social security disability benefits since 1984. The disease caused him to get both of his hips replaced, and his doctor has told him not to carry heavy objects or to use stairs.

In 1988, Johnson entered into an agreement with the city of Saline, Michigan. Under the agreement, which was between the city and SVI (a corporation to be formed by Johnson and an associate), SVI was to operate the city's public access cable station. The agreement was supposed to last for a year, but it provided for renewals. It is disputed whether the agreement was explicitly renewed, but both parties continued performing. At some point, SVI lost its corporate status when it failed to file an annual report.


The contractual relationship between Johnson and the city was complicated. Although not formally required to do so by the contract, the city allowed Johnson to keep any income he obtained from selling advertising on the station. The cable provider paid a franchise fee to the city, which apparently did not pass any of the money along to the

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station. Johnson paid the phone and insurance bills, but the city did not charge rent, and it paid the station's other expenses. Johnson also paid for over $10,000 in equipment, adding to the equipment provided by the city.

Johnson listed himself as self-employed on his income tax return; he paid himself a small salary from the money, if any, SVI earned over the course of the year. The city did not provide him with any employee benefits. Johnson described his job responsibilities as "everything," from taking out the trash to "hiring and firing" volunteers. He did not need or obtain any authorization from the city for his personnel decisions, though at one point the city successfully pressured him to fire an associate. In general, though, the record indicates that he was his own boss.

The main problem for Johnson was that the station's studio was on the second floor of a city building. In addition, the only available bathroom was on the first floor. Johnson claims that he notified city officials of his condition and his needs to the best of his ability, and that he pleaded with the city to move the studio to a more easily accessible location. However, it appears that although it was apparent to those who saw Johnson that something was wrong with him, it was unclear to anyone just what his limitations were. After all, Johnson walked up and down the stairs several times a day, making it implausible to expect the city to know that he was not supposed to do so. In a broadcast on the station in February 1995, however, Johnson declared what his restrictions were, and complained about the city's actions regarding the station. There is ample evidence that city officials knew that the second floor of the building was generally inaccessible to disabled people.


A substantial portion of the programming that Johnson produced was for the city and its government. The city paid Johnson on two occasions when he submitted invoices, in 1990 for making a video for the city ($7,000), and in 1992 for undefined "services rendered" ($7,980). In 1994, however, the city refused to pay one of Johnson's invoices.

Johnson was denied payment again in 1995, and the city notified him that it was terminating its agreement with him. Johnson continued trying unsuccessfully to get the city to move the studio, and to negotiate with the city, which purported to want to increase the amount of programming on the station. When Johnson decided to acquiesce in the termination of the agreement, he announced that he would remove from the station all of the equipment he had bought. At this, the city asked to buy the equipment, and asked Johnson to continue running the station until June. The city also formed a commission and a task force to try to resolve its differences with Johnson. The negotiations failed, however, and in June Johnson removed his equipment and ceased operations. The city found another operator, who is not disabled but is less trained and less successful at running the station than Johnson was.

Johnson filed a complaint, with claims under Titles I and II of the ADA. He also asked for damages arising from the alleged worsening of his condition, and physical and mental suffering. The district court dismissed the case on summary judgment. Johnson then filed this timely appeal.


The district court dismissed Johnson's Title I claims because he was not in an employer-employee relationship with the city. Title I of the ADA dictates that

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a). The statute defines "covered entity" as an employer, "employer" as a person engaged in an industry affecting commerce and employing more than fifteen people, and "employee" as someone employed by an employer. 42 U.S.C. § 12111(2), (4)-(5). The definition of a "qualified individual with a disability" clearly foresees

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an employment relationship. 42 U.S.C. § 12111(8).

Overall, the determination of what constitutes an employer-employee relationship under the ADA is not evident from the statute. To answer this question, Johnson cites the "economic realities" test we used in Lilley v. BTM Corp., 958 F.2d 746 (6th Cir.), cert. denied, 506 U.S. 940, 113 S.Ct. 376, 121 L.Ed.2d 287 (1992). The city argues that the Lilley test was superseded by the Supreme Court's decision in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), which propounded a common-law agency test. For its part, the district court held that Johnson lost under both tests.

We hold that the proper test is the common-law test suggested by the city and Darden. Although Darden was an ERISA case, it stands for the proposition that when a statute has left a term undefined, has left no hint in the legislative history of its intended meaning for the terms, and the term has "accumulated settled meaning" under the common law, there is a presumption that Congress meant to incorporate the common-law definition into the statute. Darden, 503 U.S. at 322, 112 S.Ct. 1344. The Darden Court noted the use of this principle in a Copyright Act case, and extended it to ERISA. It is a rule of general applicability. See Ware v. United States, 67 F.3d 574 (6th Cir.1995) (applying Darden to Internal Revenue Code's definition of "employee").

In this case, the ADA uses the same sort of vague definition of employee and employer found in ERISA. Compare 42 U.S.C. § 12111(ADA) with 29 U.S.C. § 1002 (ERISA). The only statement on this question from the legislative history is not helpful, simply saying that the ADA definitions parallel those in Title VII (42 U.S.C. § 2000e et seq.), which are similarly vague. See H.R. REP. NO. 485, 101st Cong., 1st Sess., pt. 3, at 32 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 445 ["House Report"]. Therefore, we apply Darden to the ADA, and use common-law principles of agency and the master-servant relationship to determine if Johnson is eligible for the ADA's protections. See Birchem v. Knights of Columbus, 116 F.3d 310, 312-13 (8th Cir.1997) (applying Darden to ADA).

In a recent case, we applied Darden instead of Lilley, but recognized that in practice there is not much difference between the two standards--both consider the entire relationship, with the most important factor being the "employer's ability to control job performance and employment opportunities of the aggrieved individual." Simpson v. Ernst & Young, 100 F.3d 436, 442 (6th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1862, 137 L.Ed.2d 1062 (1997). Later in the same case, we listed applicable Darden factors:

[T]he hiring party's right to control the manner and means by which the product is accomplished; the skill required by the hired party; the duration of the relationship between the parties; the hiring party's right to assign additional projects; the hired party's discretion over when and how to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the hiring party's regular business; the hired party's employee benefits; and tax treatment of the hired party's compensation.

Simpson, 100 F.3d at 443 (citing Darden, 503 U.S. at 323-24, 112 S.Ct. 1344).

In Ware, however, we made it clear that while it is appropriate to apply Darden to many other statutory...

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