Lutcher v. Musicians Union Local 47
| Decision Date | 08 December 1980 |
| Docket Number | No. 78-2909,78-2909 |
| Citation | 633 F.2d 880 |
| Parties | 24 Fair Empl.Prac.Cas. 859, 24 Empl. Prac. Dec. P 31,402 Joe LUTCHER, Plaintiff-Appellant, v. MUSICIANS UNION LOCAL 47; Max Herman, individually and in his capacity as a Member and President Governing Board of Defendant Union; Marl Young, individually and in his capacity as Secretary of Defendant Union; Rene Block, individually and in his capacity as agent of Defendant Union; Nellie Lutcher, individually and in her capacity as Member of the Governing Board of Defendant Union; The Los Angeles Unified School District; and Nunzio Crisci, individually and in his capacity as Coordinator of the Intergroup Cultural Awareness Program for Defendant School District, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arnold I. Siegel, Los Angeles, Cal., on briefs, for plaintiff-appellant.
Lawrence R. Rosenzweig, Timothy J. McKnight, Los Angeles, Cal., on briefs, for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before SKOPIL and FERGUSON, Circuit Judges, and EAST, * District judge.
INTRODUCTION
Plaintiff Lutcher brought this action alleging discrimination on the basis of religion, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and of 42 U.S.C. §§ 1983, 1985. The district court granted summary judgment for all defendants on all claims, and denied as moot Lutcher's motion to amend his complaint. We affirm in part, reverse in part, and remand.
Lutcher is a professional musician. Before 1953 he belonged to Musicians Union Local 47 ("the Union"), but fell behind in his dues. In 1953 he was converted to the Seventh Day Adventist Church. Since that time, he has refused to pay dues because Church tenets prohibit union membership.
In November 1974, Lutcher contracted with defendant Crisci to perform 23 concerts in the Los Angeles Unified School District (the "School District"). Lutcher was to employ, equip and transport the members of his group, and exercise exclusive control over them. He was to be responsible for insurance, and to hold the School District harmless from liability for injuries. The School District agreed to pay Lutcher $3,125 upon completion of the performances. The School District retained the right to delete any material which in its opinion was unsuitable for the audience, and to terminate the program if it were "improper." Lutcher was understood to be "an independent contractor and not an officer, employee, or agent" of the School District.
Lutcher performed the contract. The School District did not renew it for the following year.
In 1975 Lutcher also served as business and personnel manager of the Watts Community Symphony Orchestra ("the Symphony"). The Symphony did not have a collective bargaining agreement with the Union.
In July 1975 John Stevens, a Church elder, wrote to defendant Max Herman, the Union's president. Stevens requested permission for Lutcher to perform with union musicians, offered to pay any delinquent dues, and to pay to charity an amount equal to current dues. Herman did not respond. When Crisci refused to renew Lutcher's contract, Lutcher notified Herman. He reiterated the accommodation Stevens had proposed. The Union rejected the proposal.
Subsequently, Herman wrote to Octave Bonomo, conductor of the Symphony, saying that Lutcher could not perform with union musicians. Herman asked that Bonomo respond in writing, outlining Lutcher's status. Lutcher continued with the Symphony as business and personnel manager, but did not become a performer.
1. Did the district court err in granting summary judgment for the School District defendants on Lutcher's Title VII claim against them?
2. Did the district court err in granting summary judgment for the Union defendants on Lutcher's Title VII claims against them?
3. Did the district court err in granting summary judgment for the School District defendants on Lutcher's section 1983 claim, and for the Union defendants on the section 1985 claim?
Summary judgment is appropriate only where the moving party has shown the absence of any genuine issue of material fact. Beltz Travel Service v. International Air Transport Association, 620 F.2d 1360, 1364 (9th Cir. 1980). Our review is identical to that of the trial court. Id.; Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir. 1980). We note that courts are reluctant
to grant summary judgment for defendants in Title VII cases, where motive and intent may be crucial elements, and the proof is in the hands of the alleged wrongdoers. Reed, supra.
Lutcher alleged that the School District violated Title VII by refusing to renew his contract. He contends that the School District's decision was based on his religious beliefs.
The legislative history of Title VII 1 reveals that the statute's purpose was "to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin." H.R.Rep. No. 914, 88th Cong., 2d Sess., reprinted in 1964 U.S.Code Cong. & Ad.News, pp. 2355, 2391, 2401. The Supreme Court has said that Congress' objective was "to achieve equality of employment opportunities...." Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Consequently, there must be some connection with an employment relationship for Title VII protections to apply. 2 The connection with employment need not necessarily be direct. 3
The distinction between employment and an independent contractual affiliation depends upon the economic realities of the situation. 4 The extent of the employer's right to control the means and manner of the worker's performance is a primary factor. 5
The uncontested facts show that Lutcher was an independent contractor. The district court did not err in awarding the School District summary judgment on the Title VII claim.
Lutcher alleged that the Union limited his employment opportunities with both the School District and the Symphony. The district court held that no Title VII claim arose from Lutcher's affiliation with the School District, since Lutcher was an independent contractor. It further held that Lutcher did not state a cause of action under Title VII based upon his employment with the Symphony.
We agree that Lutcher was an independent contractor with the School District. Neither is this a situation where a defendant subject to Title VII has interfered with an individual's employment opportunities with another employer. At most, the Union interfered with an independent contractor relationship between Lutcher and the School District. This does not state a cause of action against the Union under Title VII. See Smith v. Dutra Trucking Co., 410 F.Supp. at 518 & n. 11.
To establish a prima facie case of religious discrimination under Title VII, Lutcher must show that:
(1) he had a bona fide belief that union membership and the payment of union dues are contrary to his religious faith; (2) he informed his employer and the Union about his religious views that were in conflict with the Union security agreement; and (3) he was discharged for his refusal to join the Union and to pay union dues.
Anderson v. General Dynamics, 589 F.2d 397, 401 (9th Cir. 1978), cert. denied, 442 U.S. 921, 99 S.Ct. 921, 61 L.Ed.2d 290 (1979) (footnote omitted; citations omitted). See Yott v. North American Rockwell Corp. (Yott II), 602 F.2d 904, 907 (9th Cir. 1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1316, 63 L.Ed.2d 761 (1980); Burns v. Southern Pacific Transportation Co., 589 F.2d 403, 405 (9th Cir. 1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). The burden then shifts to the defendant to show "good faith efforts to accommodate (the plaintiff's) religious beliefs, and that such efforts were unsuccessful in accommodating those beliefs without undue hardship." Yott II, supra. See Anderson, supra; Burns, supra.
The Union claims that the statute's requirement that "an employer ... reasonably accommodate to an employee's or prospective employee's religious observance or practice," 42 U.S.C. § 2000e(j), does not apply to unions. The Union does concede that this court has consistently applied the provision to unions, on the theory that "Title VII clearly imposes the same duty not to discriminate on a union as it does the employer." Yott II, 602 F.2d at 909. 6 The Union claims that the rule should be limited to cases in which there is a collective bargaining agreement with an employer, who is jointly charged with religious discrimination. We disagree.
Title VII imposes the same duty not to discriminate on a union as it does on an employer. See 42 U.S.C. § 2000e-2(a), (c); Yott II, 602 F.2d at 909; Anderson, 589 F.2d at 399. The addition of a requirement that there be a collective bargaining agreement for the duty to apply to a union would be inconsistent with the liberal construction to be given to a broad, remedial statute. See, e. g., Ramirez v. National Distillers and Lutcher alleged that union membership and payment of dues violated his religious beliefs. The defendants have not contested this allegation. The Union admitted that Lutcher notified it of his beliefs. Lutcher alleged that he was denied the opportunity to perform with union musicians in the Symphony. The Union has not challenged this allegation. The record is devoid of any showing that the Union made a good faith effort to accommodate Lutcher's religious beliefs, or that it would be unable to do so without undue hardship.
Chemical Corp., 586 F.2d 1315, 1321 (9th Cir. 1978); Mahroom v. Hook, 563 F.2d 1369, 1375 (9th Cir. 1977), ...
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