Broussard v. L.H. Bossier, Inc., 85-4471

• Decision Date: 16 May 1986
• Docket Number: No. 85-4471,85-4471
• Citation: 789 F.2d 1158,40 FEP Cases 1362
• Parties: 40 Fair Empl.Prac.Cas. 1362, 40 Empl. Prac. Dec. P 36,301, 54 USLW 2611 Donnie Sue Coker BROUSSARD, Plaintiff-Appellant, v. L.H. BOSSIER, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1158

789 F.2d 1158

40 Fair Empl.Prac.Cas. 1362,

40 Empl. Prac. Dec. P 36,301, 54 USLW 2611

Donnie Sue Coker BROUSSARD, Plaintiff-Appellant, v. L.H. BOSSIER, INC., Defendant-Appellee.

No. 85-4471.

United States Court of Appeals Fifth Circuit.

May 16, 1986.

Dan E. Melichar, Alexandria, La., for plaintiff-appellant.

Kullman, Inman, Bee & Downing, Clyde H. Jacob, III, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GEE, RANDALL, and GARWOOD, Circuit Judges.

PER CURIAM:

I.

Donnie Sue Coker Broussard ("Broussard") appeals from a district court order dismissing her Title VII action. During the period relevant to this case, Broussard and her husband operated Ronny Broussard Trucking Company. Their business involved hiring themselves and their truck out to various firms, including defendant L.H. Bossier, Inc. ("Bossier"), to make hauls. Bossier, a Louisiana firm primarily engaged in building and repairing roads, had a fleet of trucks that its employees operated. Bossier also hired other persons or companies having trucks to provide trucking services as needed, however; and prior to July 19, 1983, each of the Broussards had driven their truck for Bossier. On July 18, 1983, the Broussards were in their truck together working for Bossier when they were advised that, under company rules, only one person could be in the truck. When they informed Bossier's president that Donnie Sue was in the truck only for training purposes, she was allegedly advised by the president that he "did not want any damn women out there." The next day, Bossier advised Broussard that neither she nor the Broussard truck was needed any longer.

Broussard filed this action in 1984, claiming a violation of Title VII. At the close of Broussard's evidence, the district court granted defendant's Rule 41(b) motion based on its conclusion that Broussard was not Bossier's employee. Broussard appeals, contending that the district court erred in concluding that she was not an employee for Title VII purposes. We affirm.

II.

Broussard claims that she was unlawfully discharged on account of her sex. Under 42 U.S.C. Sec. 2000e-2(a)(1), it is unlawful 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 race, color, religion, sex, or national origin.

The trial court reasoned, however, that whatever caused Broussard's termination, Broussard was not Bossier's employee and hence was not protected by Title VII. The issue for decision is whether the employment relationship presented here is one that Title VII protects. What is therefore not relevant, despite Broussard's cites to it, is case law addressing refusals to hire or whether Title VII covers a claim that a person satisfying the statutory definition of an employer, 42 U.S.C. Sec. 2000e-2(a), has interfered with an individual's employment opportunities with another employer. See, e.g., Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1341 (D.C.Cir.1973); Puntolillo v. New Hampshire Racing Commission, 375 F.Supp. 1089, 1091-92 (D.N.H.1974).

Courts, logically enough, consistently hold that Title VII contemplates some employment relationship in discharge cases. It is also clear that whether a person is "an employee under Title VII is a question of federal law; it is to be ascertained through consideration of the statutory language of the Act, its legislative history, existing federal case law, and the particular circumstances of the case at hand." Calderon v. Martin County, 639 F.2d 271, 272-73 (5th Cir.1981). As Calderon suggests, there is simply not much statutory guidance on who is an employee. With magnificent circularity, Title VII defines an employee as "an individual employed by an employer." 42 U.S.C. Sec. 2000e(f).

Recognizing this lack of statutory guidance, we have recently held that the economic realities test identified in Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir.1979), guides the analysis of whether an individual is an employee for Title VII purposes. Mares v. Marsh, 777 F.2d 1066, 1067-68 (5th Cir.1985). Under this test, the right to control is the most important factor in determining employee status. As was observed concerning the remarkably similar facts in Smith v. Dutra Trucking Co., 410 F.Supp. 513, 516-17 (N.D.Cal.1976), aff'd, 580 F.2d 1054 (9th Cir.1978) (without published opinion), evidence of control over a job includes ownership of equipment necessary to its performance, responsibility for costs associated with operating that equipment and for such things as license fees and taxes, responsibility for obtaining insurance, responsibility for maintenance and operating supplies, ability to influence profits, length of job commitment, form of payment, and directions on schedules and on performing work. The right to control, although the most significant factor, is not alone...