Zinn v. McKune

• Decision Date: 12 May 1998
• Docket Number: No. 97-3007,97-3007
• Citation: 143 F.3d 1353
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 435, 73 Empl. Prac. Dec. P 45,318, 98 CJ C.A.R. 2251 Jerilyn ZINN, Plaintiff-Appellant, v. David McKUNE, in his individual and official capacity; State of Kansas Department of Corrections; Fritz Young, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1353

143 F.3d 1353

78 Fair Empl.Prac.Cas. (BNA) 435,

73 Empl. Prac. Dec. P 45,318, 98 CJ C.A.R. 2251

Jerilyn ZINN, Plaintiff-Appellant, v. David McKUNE, in his individual and official capacity;

State of Kansas Department of Corrections; Fritz

Young, Defendants-Appellees.

No. 97-3007.

United States Court of Appeals, Tenth Circuit.

May 12, 1998.

Jane McQueeny, Benson and Associates (Bert Braud, Popham Law Firm on the brief), Kansas City, MO, for Plaintiff-Appellant.

Linden G. Appel (Edward F. Britton, Jr. and Lisa A. Mendoza on the brief), Kansas Department of Corrections, Topeka, KS, for Defendants-Appellees.

Before KELLY, BARRETT, and BRISCOE, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-appellant Jerilyn Zinn appeals from the district court's grant of summary judgment in favor of defendant-appellees David McKune, Fritz Young and the Kansas Department of Corrections (Department). ¹ See Zinn v. McKune, 949 F.Supp. 1530 (D.Kan.1996). Relying on Lambertsen v. Utah Dept. of Corrections, 79 F.3d 1024 (10th Cir.1996), the district court determined that Ms. Zinn was not an employee of the Department and dismissed her retaliation claims brought under Title VII of the 1964 Civil Rights Act and Kansas's common-law "whistle-blower" retaliatory discharge doctrine. See Zinn, 949 F.Supp. at 1534-38. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Background

Prison Health Services (PHS) provided medical services to the Osawatomie Correctional Facility, a Kansas state prison administered by the Department of Corrections, pursuant to a written contract. In 1992, Jerilyn Zinn was hired by PHS as a correctional nurse assigned to the prison clinic at Osawatomie. From 1992 to 1995, Ms. Zinn served as the clinic's Charge Nurse, and as her job title implies, Ms. Zinn was responsible for the day-to-day operation of the clinic.

The contract between PHS and the Department expressly provided that both PHS and its employees were independent contractors, and explicitly negated the existence of any agency, employment or servant relationship between PHS and the Department of Corrections. See I Joint App. at 75. Accordingly, PHS exercised control over the hiring, firing, wages and benefits of PHS personnel like Ms. Zinn. The agreement also required that PHS personnel assigned to one of the Department's prison facilities had to "comply with all applicable rules and regulations, Internal Management Policies and Procedures, and general orders of the Department ... respecting operations and activities in and about property occupied by the Department," I Joint App. at 80, including the Department of Corrections' Employee Rules of Conduct/Conditions of Employment. See id.; I Joint App. at 99-108. According to the Policy Statement which precedes them, the Rules of Conduct were promulgated to "provid[e] a productive and efficient work environment free of behaviors that are either violent, threatening, disruptive, harassing, [or] dishonest.... " I Joint App. at 99. To that end, the Rules establish operational standards relating to penological security concerns, including limitations on contact with inmates and their families, dress and conduct requirements, and regulation of the use of state property. See id. at 99-108. Moreover, in recognition of "the sensitive nature of penal institutions," I Joint App. at 62, the contract grants the Department discretion to request removal of PHS personnel assigned to work in a Department prison facility under the contract. Id. If the Department's concerns about a PHS employee are not resolved, PHS agrees to remove the employee from the facility. Id.

Phyllis Warder, who was Ms. Zinn's immediate supervisor and a Department employee, evaluated Ms. Zinn's management of the clinic as it related to the delivery of health care services in the clinic. Ms. Warder, however, was not assigned to the Osawatomie facility and had little day-to-day contact with Ms. Zinn. Fritz Young, a Department employee, also supervised Ms. Zinn's activities within the Osawatomie facility and her management of the clinic to the extent they implicated safety and security concerns within the prison. See II Joint App. at 365-68, 395-96. Department employees also conducted audits of Ms. Zinn's preparation of inmate medical records to ensure they were prepared according to the Department's specifications, as required by the contract between PHS and the Department. See I Joint App. at 79-80; II Joint App. at 333-34, 363-64.

Ms. Zinn filed an initial charge of discrimination with the Department in December 1994, alleging, among other things, that a male corrections officer verbally abused her. The Department investigated those allegations and found them to be without merit. In January 1995, several incident reports were filed against Ms. Zinn detailing allegedly improper contact with inmates. On January 19, 1995, Ms. Zinn provided Captain Dan Castello with information relating to the use of state supplies by inmates to produce gifts for former and current state employees. See II Joint App. at 495. Captain Castello's investigation of the incident implicated Fritz Young, who was thereafter disciplined for misuse of state property and for failing to address Ms. Zinn's complaints in an aggressive manner. See II Joint App. at 497-98. In early February, Deputy Warden Rudy Stupar requested that Mark Boyd, Health Services Administrator of PHS, reassign Ms. Zinn, citing four specific examples of "inappropriate behavior." II Joint App. at 445. Ms. Zinn was denied access to the Osawatomie facility on February 21, 1995. See II Joint App. at 446. PHS subsequently offered Ms. Zinn reassignment to other prison clinics in Wyandotte or Lansing, but Ms. Zinn accepted neither offer because she was physically unable to perform the duties of either position. PHS placed Ms. Zinn on disability leave without pay in March 1995.

Ms. Zinn filed a charge of discrimination with the Kansas Human Rights Commission against the Department as well as PHS alleging violations of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. See I Joint App. at 21. After receiving her right to sue letter, Ms. Zinn filed suit against all named parties to this appeal as well as PHS, with whom she settled. See I Joint App. at 1-2. The remaining defendants sought summary judgment against Ms. Zinn, arguing, among other things, that the Department was not Ms. Zinn's employer. See I Joint App. at 267-309. The district court granted defendants' motion, holding that Ms. Zinn presented "no evidence from which a trier of fact could conclude that [Ms. Zinn] was an employee of the KDC for Title VII purposes." II Joint App. at 591. Similarly, the district court dismissed Ms. Zinn's state law whistle-blower retaliation claim, noting that Ms. Zinn had not established that the Department had the power to terminate her and had not established a causal link between her whistle-blowing and her termination. See II Joint App. at 598-99. Ms. Zinn appealed.

Discussion

We review the district court's grant of summary judgment de novo and apply the same legal standard as the district court. See Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995). Summary judgment is appropriate if there is "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We examine the factual record and the reasonable inferences which may be drawn from it in the light most favorable to Ms. Zinn. See Universal Money Centers v. AT & T Co., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994).

Under Title VII, Ms. Zinn's employment status with the Department is "both a jurisdictional question and an aspect of [her] substantive claim" of retaliation. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987). In other words, Ms. Zinn must establish, for jurisdictional purposes, that the Department falls within the statutory definition of "employer" provided in 42 U.S.C. § 2000e(b) ² and that she is personally entitled to relief under the statute because she has an employment relationship with the Department as required by 42 U.S.C. § 2000e(f). ³ See Deal v. State Farm Co. Mut. Ins. Co., 5 F.3d 117, 118 n. 2 (5th Cir.1993). The parties apparently do not dispute that the Department falls within the statute; thus, the sole issue presented is whether Ms. Zinn is an employee of the Department.

We agree with the parties that Lambertsen v. Utah Dept. of Corrections, 79 F.3d 1024 (10th Cir.1996), provides the analysis for determining whether Ms. Zinn is an employee of the Department for purposes of Title VII. In Lambertsen, we held that the skeletal definitions of "employer" and "employee" provided in 42 U.S.C. § 2000e(b) and (f) should be fleshed out by applying common-law agency principles to the facts and circumstances surrounding the working relationship of the parties. See id. at 1028. Though the main focus of Lambertsen 's hybrid inquiry is whether and to what extent a putative employer has the "right to control the 'means and manner' of the worker's performance," id., other factors inform the analysis, including

(1) the kind of occupation at issue, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the employer or the employee furnishes the equipment used and the place of work; (4) the length of time the individual has worked; (5) the method of payment, whether by time or by job; (6) the manner in which the work relationship is terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of...