Maria Wortham v. American Family Ins.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3955
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Maria Wortham, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
American Family Insurance Group; *
Dave Vore, *
*
Appellees, *
*
Bob Carnine, *
*
Defendant. *
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Submitted: September 23, 2004
Filed: October 8, 2004
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
Maria Wortham (Wortham), an insurance agent, appeals the district court’s1
adverse grant of summary judgment in her employment discrimination action.
Wortham claimed age discrimination in violation of the Age Discrimination in
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
Employment Act (ADEA), 29 U.S.C. § 623, and the Iowa Civil Rights Act (ICRA),
Iowa Code § 216.6; sex discrimination in violation of Title VII, 42 U.S.C. § 2000e,
and the ICRA; denial on the basis of her race (African-American) of the right to enjoy
the benefits of her contractual relationship with American Family, in violation of 42
U.S.C. § 1981; and race discrimination in violation of the ICRA. The district court
granted American Family summary judgment, concluding (1) Title VII does not
protect independent contractors, and Wortham admitted she was an independent
contractor; and (2) Wortham did not present sufficient evidence to create a genuine
issue as to discrimination.
We review de novo the district court’s grant of summary judgment. See
Jenkins v. S. Farm Bureau Cas., 307 F.3d 741, 743 (8th Cir. 2002). Because we
determine Wortham sufficiently disputed her employment status below, we analyze
whether she was an independent contractor under the multiple-factor test adopted by
this circuit. See Schwieger v. Farm Bureau Ins. Co. of Neb., 207 F.3d 480, 483-84
(8th Cir. 2000) (applying non-exhaustive list of factors enumerated in Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)).
We conclude, as a matter of law, the undisputed facts show Wortham was an
independent contractor because (1) Wortham is an insurance professional; (2) the
agent agreement signed by Wortham expressly identified her as an independent
contractor; (3) American Family did not supervise her day-to-day activities; (4)
Wortham worked out of an independent office, hired her assistants, and paid all
office-related expenses, including assistants’ salaries, rent, utilities, furniture, and
supplies; (5) Wortham was not subjected to any formal hour or leave policies; (6)
Wortham was paid exclusively by commission, did not receive employee benefits,
and was responsible for paying self-employment taxes; and (7) Wortham was free to
terminate her contract with American Family at will. See Lerohl v. Friends of Minn.
Sinfonia, 322 F.3d 486, 488 (8th Cir.) (issue whether workers were employees or
independent contractors is question of law which may properly be resolved by
summary judgment provided there is no genuine issue of material fact), cert denied,
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124 S. Ct. 469 (2003); Schwieger, 207 F.3d at 484-86 (factors); see also Birchem v.
Knights of Columbus, 116 F.3d 310, 313 (8th Cir. 1997) (federal courts have
consistently found that insurance agents are independent contractors). While we
recognize some aspects of American Family’s relationship with Wortham were
consistent with employment, we conclude the overwhelming balance of factors
support the district court’s independent contractor determination. Id.Independent contractor status is not protected under the ADEA, Title VII, or
the ICRA. Employees are protected under these acts. Thus, Wortham’s claims
brought pursuant to these statutes fail as a matter of law. See Schwieger, 207 F.3d
at 487 (Title VII); Jenkins, 307 F.3d at 742 (ADEA); Weary v. Cochran, 377 F.3d
522, 524 (6th Cir. 2004) (ADEA); Birchem, 116 F.3d at 314 (state law); Loeckle v.
State Farm Auto. Ins. Co., 59 F. Supp. 2d 838, 846 (N.D. Iowa 1999) (extending
federal-statute requirement of employee status to ICRA claim); aff’d, 210 F.3d 379(8th Cir. 2000) (unpublished table decision).
Wortham’s status as an independent contractor, however, does not preclude her
from pursuing a claim under section 1981. “Section 1981 does not limit itself, or
even refer, to employment contracts but embraces all contracts and therefore includes
contracts by which a[n] . . . independent contractor . . . provides service to another.”
Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 14 (1st Cir. 1999). To establish a
prima facie case under section 1981, Wortham had to show (1) she is a member of a
racial minority; (2) American Family intended to discriminate against her on the basis
of race; and (3) the discrimination concerned an area enumerated in section 1981.
See Williams v. Lindenwood Univ., 288 F.3d 349, 355 (8th Cir. 2002). We agree
with the district court that Wortham presented insufficient evidence to support her
bare allegation of discrimination. The only evidence Wortham produced was an
unauthenticated list of transfers, which failed to identify the race of either the
transferors or the transferees. See Fed. R. Civ. P. 56(e) (party opposing summary
judgment may not rest on allegations in pleadings, but must set forth specific facts
showing genuine issue for trial); Jeseritz v. Potter, 282 F.3d 542, 545-46 (8th Cir.
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2002) (party opposing summary judgment must point to evidence sufficient to raise
genuine issue for trial).
Accordingly, we affirm.
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