West-Anderson v. Choicepoint Services, Inc. ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 14 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BRENDA WEST-ANDERSON,
Plaintiff-Appellant, No. 02-3318
(D.C. No. 01-CV-2373-JWL)
v. (D. Kan.)
CHOICEPOINT SERVICES, INC.,
Defendant-Appellee.
ORDER AND JUDGMENT
Before TACHA , Chief Judge, HARTZ , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Brenda West-Anderson, appearing pro se, appeals
from the district court’s order granting summary judgment in favor of
Defendant-appellee Choicepoint Services, Inc. (Choicepoint) on her racial
discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17. Our jurisdiction arises under 28 U.S.C. § 1291.
We affirm.
“We review a grant of summary judgment de novo, applying the same
standard as the district court.” Ferroni v. Teamsters, Chauffeurs &
Warehousemen Local No. 222 , 297 F.3d 1146, 1149 (10th Cir. 2002). “Summary
judgment is appropriate if, viewing the evidence in the light most favorable to the
nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Id. “While [Plaintiff’s] pro se
pleadings are to be construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers, [she] must nonetheless set forth sufficient
facts to support [her] claims.” Diaz v. Paul J. Kennedy Law Firm , 289 F.3d 671,
674 (10th Cir. 2002). Summary judgment is appropriate when a jury trial would
serve no purpose. In this case the district court ruled that there was no need for a
trial because any reasonable jury, if properly instructed by the judge on what the
law is, would decide that Plaintiff was not an employee of Choicepoint. We
agree.
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Under Title VII, it is “an unlawful employment practice for an
employer . . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). An employer is defined as
“a person engaged in an industry affecting commerce who has fifteen or more
employees . . . .” Id. § 2000e(b). An employee, in turn, is defined as “an
individual employed by an employer . . . .” Id. § 2000e(f).
Given this statutory framework, “[i]n order to establish a prima facie case
under Title VII, [Plaintiff] was required to prove, among other things, that
[Choicepoint] was her employer.” Lockard v. Pizza Hut, Inc. , 162 F.3d 1062,
1069 (10th Cir. 1998). As the district court concluded, to determine whether
Plaintiff made a prima facie showing that Choicepoint was her employer, the
evidence in the record must be examined under the “hybrid” common-law
economic-realities test. See R., Vol. II, Doc. 89 at 7 (citing Lambertsen v. Utah
Dep’t of Corr. , 79 F.3d 1024, 1028 (10th Cir. 1996)). Moreover, because the
purpose of the hybrid test is to distinguish an employee from an independent
contractor, see Bristol v. Bd. of County Comm’rs of County of Clear Creek ,
312 F.3d 1213, 1217 (10th Cir. 2002) (en banc), the main focus of the inquiry is
“‘the employer’s right to control the means and manner of the worker’s
performance.’” R., Vol. II, Doc. 89 at 7 (quoting Oestman v. Nat’l Farmers
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Union Ins. Co. , 958 F.2d 303, 305 (10th Cir. 1992) (further quotation omitted));
accord Lambertsen , 79 F.3d at 1028.
The relevant facts pertaining to the working relationship between Plaintiff
and Choicepoint are set forth in the memorandum and order entered by the district
court on July 23, 2002. See R., Vol. II, Doc. 89 at 2-4. The district court
concluded that the uncontroverted facts in the record established, as a matter of
law, that Plaintiff was an independent contractor of Choicepoint, and not an
employee. Id. at 8-11. As a result, the district court determined that Plaintiff was
not entitled to the protections of Title VII. Id. at 6.
We agree with the district court’s analysis. We further note that the
arguments asserted by Plaintiff on appeal are without merit. First, although
Plaintiff admits that she was initially an independent contractor, she claims that
Choicepoint “unilaterally converted” her status to that of an employee by
subsequently directing her to perform work that was different, both in terms of
scope and compensation, from the work contemplated by the parties’ June 12,
1997, written contract. Specifically, Plaintiff alleges that (1) Choicepoint
directed her to perform projects in geographical areas different from the areas
agreed to in the parties’ contract; and (2) she was paid a higher hourly rate than
the rate agreed to in the parties’ contract. See Aplt. Br. at 5-7. We fail to see
why those changes would mean that she became an employee. As the district
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court concluded, even if we accept her allegations as true, this evidence had no
bearing “on [Choicepoint’s] right to control the manner and means of [P]laintiff’s
work performance, nor does it bear on any of the other factors relevant to the
application of the hybrid test.” R., Vol. II, Doc. 89 at 11.
Second, in her reply brief, Plaintiff makes a number of arguments based on
information and documents she obtained, either from Choicepoint in discovery or
through her own research, pertaining to the corporate relationship between
Choicepoint’s parent company and its predecessor. “This court does not
ordinarily review issues raised for the first time in a reply brief,” Stump v. Gates ,
211 F.3d 527, 533 (10th Cir. 2000), and Plaintiff has failed to provide us with a
sufficient reason for departing from this rule here. In any event, none of her
arguments is relevant to the issue of whether she was an employee rather than an
independent contractor.
For substantially the same reasons stated in the district court’s
memorandum and order, we AFFIRM.
Entered for the Court
Harris L Hartz
Circuit Judge
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