717 F.3d 431 (5th Cir. 2013), 12-30274, Juino v. Livingston Parish Fire Dist. No. 5

Docket Nº:12-30274.
Citation:717 F.3d 431
Opinion Judge:CARL E. STEWART, Chief Judge:
Party Name:Rachel JUINO, Plaintiff-Appellant, Cross-Appellee, v. LIVINGSTON PARISH FIRE DISTRICT NO. 5, Defendant-Appellee, Cross-Appellant.
Attorney:Winston G. DeCuir, Jr., Esq., DeCuir, Clark & Adams, L.L.P., Baton Rouge, LA, for Plaintiff-Appellant, Cross-Appellee. Henry DuPontheck Olinde, Jr., Esq., Olinde & Mercer, L.L.C. Baton Rouge, LA, for Defendant-Appellee, Cross-Appellant.
Judge Panel:Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.
Case Date:May 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 431

717 F.3d 431 (5th Cir. 2013)

Rachel JUINO, Plaintiff-Appellant, Cross-Appellee,


LIVINGSTON PARISH FIRE DISTRICT NO. 5, Defendant-Appellee, Cross-Appellant.

No. 12-30274.

United States Court of Appeals, Fifth Circuit.

May 30, 2013

Page 432

Winston G. DeCuir, Jr., Esq., DeCuir, Clark & Adams, L.L.P., Baton Rouge, LA, for Plaintiff-Appellant, Cross-Appellee.

Henry DuPontheck Olinde, Jr., Esq., Olinde & Mercer, L.L.C. Baton Rouge, LA, for Defendant-Appellee, Cross-Appellant.

Appeals from the United States District Court for the Middle District of Louisiana.

Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.

CARL E. STEWART, Chief Judge:

Plaintiff-Appellant Rachel Juino (" Juino" ) appeals from the district court's dismissal of her claim of sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ). The district court ruled that Juino, a volunteer firefighter, was not an " employee" within the meaning of Title VII. The existence of an employment relationship in the volunteer context is an issue of first impression in this circuit. For the following reasons, we AFFIRM.


Livingston Parish Fire District No. 5 (" District 5" ) is a political subdivision of the state of Louisiana that primarily relies on volunteers to provide fire and emergency services. From November 2009 to April 2010, Juino was a volunteer firefighter with District 5. Juino claims that during her tenure, fellow firefighter John Sullivan (" Sullivan" ) subjected her to sexual harassment on several occasions. Juino allegedly reported Sullivan's conduct to superiors, but claims that no disciplinary action was taken. Juino terminated her services with District 5 on April 2, 2010.

After not receiving a right-to-sue letter from the Equal Employment Opportunity Commission (" EEOC" ) within six months of filing her claim, Juino filed suit in the district court, alleging sexual harassment and retaliation under Title VII; violations of the Louisiana Employment Discrimination Law, La. R.S. § 23:301 et seq. ; and violations of the Louisiana whistleblower statute, La. R.S. § 23:967 et seq. Juino also asserted state law claims for assault, battery, and intentional infliction of emotional distress.

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District 5 moved for partial summary judgment, claiming that it was not an " employer" for purposes of Title VII because it had only three paid " employees" in 2010 and, as a result, it did not satisfy Title VII's fifteen-employee minimum requirement. Alternatively, District 5 maintained that, assuming it was an " employer" for purposes of Title VII, Juino's status as a volunteer rendered her Title VII and state law claims non-cognizable. Juino opposed the motion, contending that District 5 was an " employer" because its membership roster included between 50 and 70 firefighter/members who provided firefighting service and, like her, received similar benefits.

The district court treated District 5's motion for partial summary judgment as a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) by concluding that the minimum " employee" requirement was a jurisdictional issue and dismissing the case on this basis.1 With respect to the merits of the case, the district court noted that this circuit has not adopted a test for evaluating the employment relationship in the volunteer context, but stated its preference for the Second Circuit's threshold-remuneration test as articulated in O'Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir.1997). Pursuant to this test, courts analyze, as a threshold matter, whether the plaintiff-volunteer has received remuneration supporting a plausible employment relationship. The district court also prudently analyzed Juino's claim under this circuit's " economic realities/common law control test," which is applied in resolving the employee-independent contractor conundrum. Under both tests, the district court concluded that Juino was not an " employee" for purposes of Title VII. The district court declined to exercise supplemental jurisdiction over the remaining state law claims. Juino now appeals.


We review the district court's grant of summary judgment de novo. Admiral Ins. Co. v. Ford, 607 F.3d 420, 422 (5th Cir.2010) (citation omitted). Summary judgment is appropriate when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). We must view all facts and evidence in the light most favorable to the non-moving party when considering a motion for summary judgment. Dameware Dev., L.L.C. v. Am. Gen. Life Ins. Co., 688 F.3d 203, 206-07 (5th Cir.2012) (citation omitted).



Pursuant to Title VII, it is illegal " for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Therefore, Title VII prohibits sexual harassment that takes the form of a tangible employment action, such as a demotion or denial of promotion, or

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the creation of a hostile or abusive working environment. Lauderdale v. Tex. Dep't of Criminal Justice, Institutional Div., 512 F.3d 157, 162 (5th Cir.2007) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)) (other citation omitted).

In order to be subject to liability pursuant to Title VII, an employer must have at least fifteen employees " for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b).

An " employee" under Title VII is defined in pertinent part as " an individual employed by an employer." 42 U.S.C. § 2000e(f). The Supreme Court has noted that this definition " is completely circular and explains nothing." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (describing same definition under ERISA). " Recognizing the circularity in such a definition, the Supreme Court explained that ‘ when Congress has used the term ‘ employee’ without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.' " Arbaugh v. Y & H Corp., 380 F.3d 219, 226 (5th Cir.2004) rev'd on other grounds by 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting Darden, 503 U.S. at 322-23, 112 S.Ct. 1344). The Supreme Court has stated,

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill 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...

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