Knight v. State Univ. of N.Y. at Stony Brook

• Decision Date: 29 January 2018
• Docket Number: August Term, 2017,Docket No. 17-54-cv
• Citation: 880 F.3d 636
• Parties: Anthony KNIGHT, Plaintiff-Appellant, v. STATE UNIVERSITY OF NEW YORK AT STONY BROOK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

880 F.3d 636

Anthony KNIGHT, Plaintiff-Appellant,

v.STATE UNIVERSITY OF NEW YORK AT STONY BROOK, Defendant-Appellee.

Docket No. 17-54-cv

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: December 15, 2017

Decided: January 29, 2018

Michael G. O'Neill, Law Office of Michael G. O'Neill, New York, NY, for Plaintiff–Appellant Anthony Knight.

Caroline A. Olsen, Assistant Solicitor General (Barbara D. Underwood, Solicitor General & Steven C. Wu, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Defendant–Appellee State University of New York at Stony Brook.

Before: Winter, Lynch, and Droney, Circuit Judges

Per Curiam:

Plaintiff Anthony Knight, an African-American electrician, sued Defendant State University of New York at Stony Brook ("Stony Brook") for discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ., when it terminated Knight's employment after he reported racist graffiti in a bathroom located at his worksite. At trial, the parties disputed (among other issues) whether Knight qualified as an employee for purposes of Title VII, and the jury was presented with conflicting evidence on that issue. At the close of evidence, Knight moved for judgment as a matter of law that he was Stony Brook's employee. The United States District Court for the Eastern District of New York (Joanna Seybert, Judge ) denied Knight's motion and submitted the issue to the jury, which found that Knight was not an employee. On appeal, Knight argues that: (1) the district court should not have submitted the question of whether he was an employee to the jury; (2) the district court misinstructed the jury on how to determine whether he was an employee; (3) the evidence was insufficient to support the jury's conclusion that he was not an employee; and (4) the district court made several other errors unrelated to the question of whether Knight was an employee. For the following reasons, we AFFIRM.

BACKGROUND

At all relevant times, Knight, who is African American, was an electrician and a member of the International Brotherhood of Electrical Workers, Local 25 ("the Union"). The Union had an arrangement with Stony Brook under which it referred union electricians to Stony Brook when additional workers were needed to supplement its workforce during large construction projects.

Pursuant to this arrangement, the Union referred Knight to Stony Brook, and in April 2011, he began working on a construction project for a psychiatric emergency facility. Sometime that summer or fall,¹ Knight discovered racist graffiti in the bathroom he used at work every morning. He reported the graffiti to the project's foreman, Thomas Murphy, who was also a member of the Union, and to the shop steward, James Malley.² His work was terminated sometime thereafter.³ Knight had worked on the project for approximately six months. Knight then initiated this action against Stony Brook, claiming that he had been discriminated against on the basis of his race and retaliated against for reporting the graffiti in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq .

Stony Brook moved to dismiss both claims for failure to state a claim. The district court granted the motion without prejudice, and Knight submitted a first amended complaint. Stony Brook again moved to dismiss, and the district court dismissed the discrimination claim with prejudice, but declined to dismiss the retaliation claim.

The retaliation claim proceeded to a jury trial. At trial, Stony Brook argued that Knight was not its employee, and that it therefore could not be held liable under Title VII. As the district court recognized, whether a plaintiff is an employee of a defendant for purposes of Title VII is determined by what are known as the Reid factors. See Cmty. for Creative Non–Violence v. Reid , 490 U.S. 730, 751–52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). Borrowing from the common law of agency, the Reid Court established a non-exhaustive list of thirteen factors which guide the determination of employee status. Id. Those factors are:

the hiring party's right to control the manner and means by which the product is accomplished[;] ... 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 treatment of the hired party.

Id. (footnotes omitted).

The parties presented conflicting evidence regarding several of these factors. Knight elicited testimony that Stony Brook provided some tools for him and the other electricians, tending to show that he was an employee; however, this testimony also revealed that the electricians were required to supply their own basic tools, tending to show the opposite. Knight also presented evidence that Stony Brook controlled the manner and means by which the work was accomplished because Knight received specific assignments every morning, and had no discretion over how or when the work was accomplished; Stony Brook countered by arguing that Knight and the other union electricians had significant control over their work because they were given only an overview of the work that needed to be done, and were then instructed to handle the details of the work on their own. Similarly, when Knight argued that he was an employee because Stony Brook provided him with benefits, Stony Brook produced evidence that the benefits were in fact paid to the union, which was charged with dispersing the benefits to individual members.

Moreover, the factors as to which the facts were not disputed did not clearly favor one party or the other. For example, Knight presented uncontradicted evidence that he was paid by the State Comptroller and was treated as an employee for tax purposes, and Stony Brook, in turn, presented undisputed evidence that the construction work for which Knight was hired was not its usual business, and that the duration of the employment was brief. In sum, several of the factors were disputed, with evidence presented on both sides, and the rest of the factors did not trend decisively in favor of either party.

At the close of evidence, Knight moved pursuant to Fed. R. Civ. P. 50(a) for judgment as a matter of law that he was Stony Brook's employee. The district court denied Knight's motion and submitted the issue to the jury, finding that "the variety of evidence" created questions of fact that needed to be determined by a jury. App. at 130. It instructed the jury to consider and balance the Reid factors in determining Knight's employment status. After brief deliberations, the jury returned a verdict finding that Knight was not an employee of Stony Brook. Because that finding resolved the case in Stony Brook's favor, the jury did not make any determination about the other elements of Knight's retaliation claim.

Knight did not renew his Rule 50 motion after the verdict under Rule 50(b), or seek a new trial. Instead, he filed this appeal, raising the claims of error set forth above.

DISCUSSION

I. Permitting the Jury to Determine Whether Knight was an Employee

First, Knight contends that a judge, not a jury, should decide whether an individual is an employee, and that the district court therefore erred when it submitted that question to the jury. Whether a jury may determine a plaintiff's status as an employee presents a question of law. We review questions of law de novo . Waggoner v. Barclays PLC , 875 F.3d 79, 97 (2d Cir. 2017) (quoting Roach v. T.L. Cannon Corp. , 778 F.3d 401, 405 (2d Cir. 2015) ) ("[W]e review the district court's construction of legal standards de novo "); see also U.S. v. Salameh , 152 F.3d 88, 142 (2d Cir. 1998) ("Whether jury instructions were properly given is a question of law that this court reviews de novo ").

We rejected an argument virtually identical to Knight's in Kirsch v. Fleet Street, Ltd. , 148 F.3d 149 (2d Cir. 1998). In that case a plaintiff sought a new trial on his state labor law claim on the ground that "the question of whether he was an employee was improperly submitted to the jury." Id. at 170. Like Knight, he argued that the question was a legal one that only a court could decide after the jury had made relevant factual findings. Id. Without deciding whether determining employment status presents a question of fact or law, we concluded that "the submission of that question to the jury" did not warrant a new trial. Id. at 171. We noted that a district court always has discretion to call for a general verdict.⁴ Accordingly, we reasoned that the plaintiff had not suffered any harm to his substantial rights from the trial court's submission of the "employee" issue to the jury on general instructions rather than having the jury decide only the narrow factual questions and reserving the bottom-line determination of the issue to itself as a question of law. Because errors that do not affect substantial rights are not grounds for reversal, 28 U.S.C. § 2111, reversal was not warranted.

Kirsch controls here. Although, as Knight notes, we have stated that the district court's "ultimate determination as to whether a worker is an employee ... is a question of law," Eisenberg v. Advance Relocation & Storage, Inc. , 237 F.3d 111, 115 (2d Cir. 2000) (internal quotation marks omitted), Kirsch rejected the argument that submitting the question to a jury is prejudicial error, the same contention Knight now makes. In so doing, Kirsch noted that whether an individual is an employee is "regularly...