Wolf v. Coca-Cola Company ( 2000 )


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  •                                                                        [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________  ELEVENTH CIRCUIT
    01/18/2000
    No. 98-9608                THOMAS K. KAHN
    ________________________              CLERK
    D. C. Docket No. 96-00562-1-CV-GET
    SHEILA WOLF,
    Plaintiff-Appellant,
    versus
    COCA-COLA COMPANY, EILEEN HILBURN, et al.,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (January 18, 2000)
    Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges.
    BLACK, Circuit Judge:
    Appellant Sheila Wolf filed suit against Appellee Coca-Cola Company
    (Coca-Cola) and a number of individual defendants after being terminated from
    working at Coca-Cola as a computer programmer and analyst. The district court
    granted the defendants’ motions for summary judgment on all of Appellant’s
    claims. On appeal, Appellant challenges only the summary judgment on her
    claims against Coca-Cola for benefits under the Employee Retirement Income
    Security Act (ERISA), 29 U.S.C. §§ 1001-1461, benefits under the Consolidated
    Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. §§ 1161-1169,
    retaliation under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, and
    retaliation under ERISA. We affirm.
    I. BACKGROUND
    Appellant worked as a computer programmer and analyst at Coca-Cola from
    February 1988 until she was terminated in March 1994. Appellant obtained this
    work by answering an ad placed by Access, Inc. (Access), a staffing company
    independent of Coca-Cola. Appellant’s only employment contract was with
    Access; it provided that Appellant was an “independent contractor” of Access.
    Appellant performed services at Coca-Cola pursuant to contracts between Access
    and Coca-Cola. These contracts were one year in length and were renewed
    annually. The contracts governed the rates of compensation and length of
    2
    employment for Access workers working at Coca-Cola, including Appellant.
    Appellant never obtained any written or oral agreement concerning her status at
    Coca-Cola.
    In 1992, Appellant began working on a software project known as the ICS
    project. Tensions developed, however, with the hardware employees at Coca-Cola,
    known as the MCS group, over access rights and disk space on the computers. On
    February 24, 1994, Appellant and her counsel met with a human resources officer
    and a labor counsel from Coca-Cola (hereinafter “the Feb. 24 meeting”). At the
    Feb. 24 meeting, Appellant presented allegations that MCS employees were
    sabotaging the work of the ICS project. In addition, Appellant’s counsel stated in
    his deposition that at the Feb. 24 meeting he “at some point . . . raised the issue that
    [Appellant] appeared to be an employee and had claims under the Fair Labor
    Standards Act, under ERISA. I can’t remember if I used the words Fair Labor. I
    may have used Wage Labor Hour or something like that. Then I don’t remember.”
    The evidence is undisputed that this meeting is the only time prior to Appellant’s
    termination at which she may have asserted ERISA and FLSA claims to Coca-
    Cola. On March 7, 1994, Appellant was terminated when Access was told that
    Appellant’s services were no longer needed at Coca-Cola.
    3
    II. DISCUSSION
    We review de novo an order granting summary judgment, applying the same
    legal standards as the district court. See Mitchell v. USBI Co., 
    186 F.3d 1352
    , 1354
    (11th Cir. 1999). We will affirm the summary judgment for the moving party if,
    viewing the evidence in the light most favorable to the non-moving party, there is
    no genuine issue of material fact. See Crawford v. Babbitt, 
    186 F.3d 1322
    , 1325
    (11th Cir. 1999).
    A. Claims for Benefits Under ERISA and COBRA.
    To assert a claim under ERISA, the plaintiff must be either a “participant” or
    a “beneficiary” of an ERISA plan. See 29 U.S.C. § 1132(a)(1). Appellant asserts
    she is a participant in Coca-Cola’s ERISA plan because she is a former employee
    who may be entitled to benefits from the plan. A participant is defined as “any
    employee or former employee of an employer . . . who is or may become eligible to
    receive a benefit of any type from” the ERISA plan. 
    Id. § 1002(7)
    (emphasis
    added). ERISA thus imposes two requirements for participant status. First, the
    plaintiff must be an employee. Second, the plaintiff must be “according to the
    language of the plan itself, eligible to receive a benefit under the plan. An
    individual who fails on either prong lacks standing to bring a claim for benefits
    4
    under a plan established pursuant to ERISA.” Clark v. E.I. DuPont DeNemours &
    Co., Inc., No. 95-2845 (4th Cir. Jan. 9, 1997), 
    105 F.3d 646
    (table).
    The first prong—whether the plaintiff is an employee—is an independent
    review by the court of the employment relationship. The Supreme Court held in
    Nationwide Mutual Insurance Co. v. Darden, 
    503 U.S. 318
    , 319, 
    112 S. Ct. 1344
    ,
    1346 (1992), that the term “employee” as used in the ERISA statute refers to the
    common law analysis, which distinguishes between employees and independent
    contractors by examining at least 14 factors.1 Under the common law analysis,
    how the employment relationship is described by the parties and the employment
    documents is considered but is not dispositive. For example, in Daughtrey v.
    Honeywell, Inc., 
    3 F.3d 1488
    (11th Cir. 1993), this Court concluded that the district
    court had relied too heavily on the parties’ contract, which described the ERISA
    1
    The common law analysis is a consideration of at least the following factors:
    In determining whether a hired party is an employee under the general common
    law of agency, we consider the hiring party’s right to control the manner and
    means by which the product is accomplished. Among the other factors relevant to
    this inquiry are 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.
    
    Darden, 503 U.S. at 323-24
    , 112 S.Ct. at 1348 (quoting Community for Creative Non-Violence v.
    Reid, 
    490 U.S. 730
    , 751-52, 
    109 S. Ct. 2166
    , 2178-79 (1989)).
    5
    plaintiff as an independent contractor, in determining that the plaintiff was not an
    employee. See 
    id. at 1492-93.
    Despite the wording of the contract, the plaintiff
    had introduced sufficient evidence to raise a dispute of material fact over whether
    she was a common law employee under the full multi-factor Darden analysis. See
    
    id. Thus, if
    the plaintiff is a “common law employee” of the company, the first
    prong is established.
    The second prong—whether the plaintiff is eligible for benefits—is an
    examination of the terms of the company’s ERISA plan. The plaintiff must be
    eligible for benefits under the terms of the plan itself. This requirement is
    necessary because companies are not required by ERISA to make their ERISA
    plans available to all common law employees.2 See Abraham v. Exxon Corp., 
    85 F.3d 1126
    (5th Cir. 1996); Bronk v. Mountain States Tel. & Tel., Inc., 
    140 F.3d 2
              The only limitation imposed by ERISA appears in § 1052, which provides that a plan
    may not condition eligibility on the employee completing “a period of service with the employer
    or employers maintaining the plan extending beyond the later of the following dates (i) the date
    on which the employee attains the age of 21; or (ii) the date on which he completes one year of
    service.” 29 U.S.C. § 1052(a)(1)(A). This section continues: “A plan shall be treated as not
    meeting the requirements of paragraph (1) unless it provides that any employee who has satisfied
    the minimum age and service requirements specified in such paragraph, and who is otherwise
    entitled to participate in the plan” is covered within the earlier of six months, or the beginning of
    the first plan year, after meeting these requirements. 
    Id. § 1052(a)(4)
    (emphasis added). Thus,
    the only limitations imposed by § 1052 are that an ERISA plan not exclude common law
    employees on the basis of an age older than 21 or a term of service longer than one year—other
    grounds for exclusion from ERISA plans are permitted. See Abraham v. Exxon Corp., 
    85 F.3d 1126
    , 1130 (5th Cir. 1996); Bronk v. Mountain States Tel. & Tel., Inc., 
    140 F.3d 1335
    , 1338
    (10th Cir. 1998).
    6
    1335 (10th Cir. 1998). For example, the terms of the ERISA plan in Abraham
    excluded “leased employees” from coverage. 
    See 85 F.3d at 1128
    . The Fifth
    Circuit concluded that although the leased-employee plaintiffs were common law
    employees, see 
    id. at 1129,
    they were excluded by the plan and therefore had no
    ERISA claim. See 
    id. at 1130-31.
    Similarly, because the ERISA plan in Bronk
    covered only “regular employees,” 
    see 140 F.3d at 1336-37
    , the Tenth Circuit held
    that the plaintiffs, who were leased employees, could not prevail, despite their
    status as common law employees, because the plan specifically excluded them.
    See 
    id. at 1338.
    Appellant asserts two recent Ninth Circuit cases stand for the proposition
    that all common law employees are entitled to ERISA benefits. Those cases are
    distinguishable from this case, however, because of important facts relating to the
    second prong of ERISA standing. In Vizcaino v. Microsoft Corp., 
    120 F.3d 1006
    (9th Cir. 1997) (en banc), the Ninth Circuit held that Microsoft’s computer
    programmer “freelancers” were common law employees, notwithstanding that their
    contracts specifically described them as independent contractors without eligibility
    for benefits. See 
    id. at 1009-13.
    Microsoft’s ERISA plan, however, expressly
    made eligible for benefits any “common law employee . . . who is on the United
    States payroll.” 
    Id. at 1010.
    Thus, once the Ninth Circuit held that the first prong
    7
    was met, under the terms of Microsoft’s plan the freelancers were eligible; the
    court remanded for a determination whether the freelancers were on the United
    States payroll. See 
    id. at 1013.
    Similarly, in Burrey v. Pacific Gas & Electric Co.,
    
    159 F.3d 388
    (9th Cir. 1998), the plaintiffs were leased employees. See 
    id. at 390.
    The ERISA plan excluded leased employees as defined in I.R.C. § 414(n). See 
    id. at 391.
    That section of the I.R.C. defines a leased employee as a person who is not
    an employee and who meets certain other criteria. See 
    id. at 392.
    The Ninth
    Circuit held that the I.R.C., like ERISA, refers to the common law definition of
    employee when it uses the word “employee.” See 
    id. at 393.
    The court therefore
    reasoned that if a person is a common law employee, he or she is not a leased
    employee under I.R.C. § 414(n). See 
    id. Accordingly, because
    the employer’s
    plan incorporated the definition of leased employee in I.R.C. § 414(n) for
    determining who is excluded, the plaintiffs were not excluded as leased employees,
    under the terms of the plan, if they met the standard for common law employees.3
    See 
    id. at 394.
    Thus, contrary to Appellant’s argument, neither Vizcaino nor
    3
    Unlike Burrey, Coca-Cola’s ERISA plan does not incorporate by reference the
    definition of “leased employees” from I.R.C. § 414(n). Instead, the plan provides its own
    definition. Appellant’s argument that Burrey controls the interpretation of “leased employee”
    under Coca-Cola’s plan therefore is incorrect. Cf. 
    Abraham, 85 F.3d at 1130-31
    (holding that
    although exclusion of leased employees from plan may adversely effect tax status under
    Treasury regulations, court cannot add regulations’ requirements to the terms of the plan, so
    leased employees are excluded by plan).
    8
    Burrey holds that a person meeting the common law employee test must be given
    ERISA benefits. Rather, Vizcaino and Burrey simply clarify that if the plan makes
    all common law employees eligible, then meeting the first prong also will satisfy
    the second prong. When the plan affirmatively excludes certain workers from
    coverage, however, then meeting the first prong is not sufficient because, as
    Abraham and Bronk hold, failing the second prong denies the plaintiff ERISA
    standing.
    In this case, although Appellant may have a legitimate argument that she
    was a common law employee of Coca-Cola, her claim for ERISA benefits fails the
    second prong because she is specifically excluded from eligibility by the terms of
    Coca-Cola’s ERISA plan. The plan includes regular employees and excludes
    temporary and leased employees. The terms of Coca-Cola’s ERISA plan include
    the following language:
    You’re eligible for coverage under the plan if you’re a regular
    employee of The Coca-Cola Company or one of its participating
    subsidiaries. You’re not eligible for coverage under the plan if you’re
    a temporary employee or seasonal employee, as defined by your
    employer . . .
    A “regular employee” is
    An employee . . . who is not classified as a temporary employee and
    who is normally scheduled to work the number of hours per week and
    weeks per year that are standard for the division . . .
    9
    Two parts of the plan do not use the “regular employee” definition (excluding
    “temporary employees”), but these nevertheless exclude from eligibility “leased
    employees,” defined as “individuals who perform services for the Company under
    an agreement with a leasing organization.”
    The district court correctly found that Appellant failed to raise a genuine
    issue of material fact demonstrating that she could be found to be eligible for
    benefits under these terms. Significantly, Appellant’s status at Coca-Cola always
    was temporary; her only contract was with Access, and Access’s contracts with
    Coca-Cola were only one year in length and were renewed every year.
    Furthermore, Appellant always was leased by Coca-Cola from Access. Finally,
    Appellant has not shown any facts suggesting that she could be considered a
    regular employee. To the contrary, for example, Appellant wore a different color
    badge than those worn by regular employees, was paid by Access and requested
    pay raises through Access, was not invited to events for regular Coca-Cola
    employees such as the Christmas party, and Appellant herself testified in her
    deposition that she did not consider herself a regular employee of Coca-Cola and
    had made inquiries about becoming one. Thus, the district court did not err in
    granting summary judgment to Coca-Cola on Appellant’s claim for ERISA
    10
    benefits because Appellant was not eligible for benefits under the terms of Coca-
    Cola’s ERISA plan.
    Appellant’s claim for benefits under COBRA is derivative of her claim for
    ERISA benefits because COBRA provides a right to a continuation of ERISA plan
    coverage after termination. See Mattive v. Healthsource of Savannah, Inc., 893 F.
    Supp. 1556, 1558 (S.D. Ga. 1995). Therefore, because Appellant was not entitled
    to benefits under Coca-Cola’s ERISA plan, the district court correctly held that the
    “finding by the court that plaintiff is not entitled to ERISA benefits is
    determinative regarding plaintiff’s entitlement to benefits under COBRA.”
    B. Claim of Retaliation Under the FLSA.
    The FLSA protects persons against retaliation for asserting their rights under
    the statute. See 29 U.S.C. § 215(a)(3). A prima facie case of FLSA retaliation
    requires a demonstration by the plaintiff of the following: “(1) she engaged in
    activity protected under [the] act; (2) she subsequently suffered adverse action by
    the employer; and (3) a causal connection existed between the employee’s activity
    and the adverse action.” Richmond v. Oneok, Inc., 
    120 F.3d 205
    , 208-09 (10th Cir.
    1997). If the employer asserts a legitimate reason for the adverse action, the
    plaintiff may attempt to show pretext. See 
    id. In demonstrating
    causation, the
    plaintiff must prove that the adverse action would not have been taken “but for” the
    11
    assertion of FLSA rights. See Reich v. Davis, 
    50 F.3d 962
    , 965-66 (11th Cir.
    1995).
    Although Appellant’s FLSA retaliation claim may meet the first element,4
    the district court correctly found that Appellant’s claim fails the other two. The
    second element requires that the adverse action be subsequent to the assertion of
    FLSA rights. The record demonstrates, however, that there is only one occasion
    prior to her termination when Appellant might have asserted FLSA rights—the
    Feb. 24 meeting. We agree with the district court that the evidence regarding the
    Feb. 24 meeting was insufficient to meet Appellant’s burden of producing a
    dispute of material fact regarding whether she asserted FLSA rights before being
    fired. The court found that “[a]t that meeting, plaintiff’s counsel later testified that
    he stated that plaintiff ‘appeared’ to be an employee with a [FLSA] claim.
    However, plaintiff’s counsel does not recall who raised the benefits issue or what
    any of the individuals said.” This testimony, while favorable to the plaintiff,
    4
    Appellant would be protected by the FLSA if she were an employee of Coca-Cola under
    the statute. The definition of “employee” under the FLSA is broader than that under ERISA.
    See Nationwide Mut. Ins. Co. v. Darden, 
    503 U.S. 318
    , 326, 
    112 S. Ct. 1344
    , 1350 (1992) (FLSA
    definition much broader than common law employee analysis used under ERISA); Villarreal v.
    Woodham, 
    113 F.3d 202
    , 205 (11th Cir. 1997) (describing “economic reality” analysis under
    FLSA). Thus, if Appellant were a common law employee of Coca-Cola for purposes of ERISA,
    she also would be an employee under the FLSA.
    12
    simply is too indefinite to meet Appellant’s burden of showing that she actually
    asserted FLSA rights before being terminated.
    Similarly, Appellant’s evidence on the third element, causation, also is
    insufficient to defeat summary judgment for Coca-Cola. Appellant must show she
    would not have been fired but for her assertion of FLSA rights. Coca-Cola argues
    it terminated Appellant for a legitimate reason—namely, her allegations that the
    MCS employees were sabotaging the work of the ICS project. Appellant maintains
    this proffered reason is a pretext for firing her for asserting FLSA rights. We agree
    with the district court that Appellant’s only evidence of pretext is insufficient. Ben
    Hilburn, a supervisor at Coca-Cola, related in his deposition a conversation with
    his wife, Eileen Hilburn, a Coca-Cola superior of the supervisor who directly fired
    Appellant. The district court noted that “Ben Hilburn testified in his deposition,
    ‘Well, she thought – thought that there were some overtime claims or some such
    thing, but she didn’t really know.’” This testimony, which stands alone, is too
    ambiguous to create a genuine dispute of material fact regarding whether Coca-
    Cola’s legitimate explanation for Appellant’s termination was pretext.
    13
    C. Claim of Retaliation Under ERISA.
    ERISA also protects employees against retaliation for asserting claims to
    benefits under an ERISA plan. See 29 U.S.C. § 1140 (making it unlawful to
    “discharge” a “participant” in an ERISA plan for asserting a claim for benefits). In
    a retaliation case, “a plaintiff may establish a prima facie case of discrimination by
    showing (1) that he is entitled to ERISA’s protection, (2) was qualified for the
    position, and (3) was discharged under circumstances that give rise to an inference
    of discrimination.” Gitlitz v. Compagnie Nationale Air France, 
    129 F.3d 554
    , 559
    (11th Cir. 1997) (quoting Clark v. Coats & Clark, Inc., 
    990 F.2d 1217
    , 1223 (11th
    Cir. 1993)). If the employer asserts a legitimate reason for the discharge, the
    plaintiff may present evidence that the reason is a pretext masking the specific
    intent to interfere with ERISA rights. See 
    id. Appellant’s ERISA
    retaliation claim fails under the first element of the
    prima facie case. As determined above, Appellant is not a “participant” in Coca-
    Cola’s ERISA plan because she is not eligible under the terms of the plan.
    Appellant therefore was not entitled to claim ERISA benefits and is not protected
    by ERISA’s anti-retaliation provision. In addition, Appellant’s claim fails the third
    element. We agree with the district court that the factual deficiencies in
    Appellant’s evidence on the ERISA and FLSA retaliation claims are the same.
    14
    That is, the evidence regarding the Feb. 24 meeting is insufficient to prove that
    Appellant ever asserted ERISA claims prior to being terminated, and the evidence
    that Coca-Cola’s legitimate reasons for termination were pretext also is inadequate
    to defeat summary judgment.
    III. CONCLUSION
    For the foregoing reasons, we conclude the district court correctly granted
    summary judgment to Coca-Cola on Appellant’s claims for benefits under ERISA
    and COBRA and for retaliation under the FLSA and ERISA.
    AFFIRMED.
    15
    

Document Info

Docket Number: 98-9608

Filed Date: 1/18/2000

Precedential Status: Precedential

Modified Date: 10/31/2019

Authorities (13)

61-fair-emplpraccas-bna-1301-62-empl-prac-dec-p-42381-bill-clark ( 1993 )

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Frutoso Villarreal v. William A. Woodham, Sheriff, Gadsden ... ( 1997 )

72-empl-prac-dec-p-45106-21-employee-benefits-cas-2736-pens-plan ( 1997 )

Community for Creative Non-Violence v. Reid ( 1989 )

Jimmie Ruth Daughtrey v. Honeywell, Inc., Bull Hn ... ( 1993 )

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Richmond v. Oneok, Inc. ( 1997 )

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florett-burrey-ralph-brown-florisa-aliabadi-denise-barr-john-chyka-craig ( 1998 )

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