Frederick v. United Brotherhood of Carpenters & Joiners of America (UBCJA) Local 926 , 558 F. App'x 83 ( 2014 )

13-1013
Frederick v. United Brotherhood of Carpenters
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 12th
day of March, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
Circuit Judge,
JED S. RAKOFF,*
District Judge.
__________________________________________
Nakeisha Frederick,
Plaintiff-Appellant,
v. 13-1013
United Brotherhood of Carpenters
and Joiners of America (UBCJA)
Local 926, et al.,
Defendants-Appellees.
__________________________________________
*
The Honorable Jed S. Rakoff, United States District Judge
of the District Court for the Southern District of New York,
sitting by designation.
FOR PLAINTIFF-APPELLANT: Nakeisha Frederick, pro se,
Brooklyn, NY.
FOR DEFENDANT-APPELLEE: Joni H. Kletter, Hanan B.
Kolko, Meyer, Suozzi, English
& Klein, P.C., New York, NY.
Appeal from a judgment of the United States District Court
for the Eastern District of New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment is VACATED and the action REMANDED for
further proceedings consistent with this order.
Appellant, Nakeisha Frederick, pro se, appeals from the
district court’s grant of summary judgment to the United
Brotherhood of Carpenters and Joiners of America (UBCJA) Local
926 (“Local 926”), dismissing her employment discrimination
complaint because Local 926 did not have the requisite number of
employees to constitute an “employer” for purposes of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., during the relevant years. We assume the parties’
familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
We review a district court’s grant of summary judgment de
novo, “resolv[ing] all ambiguities and draw[ing] all permissible
factual inferences in favor of the party against whom summary
judgment was granted.” See Gonzalez v. City of Schenectady, 728
F.3d 149, 154 (2d Cir. 2013) (internal citations, quotation
marks, and brackets omitted). “Summary judgment is appropriate if
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there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Id.;
see also Fed. R. Civ. P. 56(a). Upon such review, we conclude
that the district court improperly granted summary judgment to
Local 926.
Frederick argues that the district court erred in
determining, as a matter of law, that Local 926 was not an
employer under Title VII. Pursuant to Title VII, the term
“employer” is defined, in relevant part, as “a person . . . who
has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding
calendar year.” 42 U.S.C. § 2000e(b). An “employment relationship
is most readily demonstrated by the individual’s appearance on
the employer’s payroll.” Walters v. Metro. Educ. Enters., 519
U.S. 202, 206 (1997). However, “[a]n individual who appears on
the payroll but is not an ‘employee’ under traditional principles
of agency law, would not count toward the 15-employee minimum.”
Id. at 211 (internal citations omitted).
The district court found that Local 926's two clerical
employees counted as “employees,” but that the ten members of its
Executive Board and the additional six or seven delegates were
not “employees” within the meaning of Title VII. Because of this,
it concluded that Local 926 had only two employees during the
relevant time period, which meant that it did not have the
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fifteen employees required for it to be an “employer” covered by
Title VII.
In assessing whether a higher-level executive has assumed
duties that make him or her an employee for purposes of the
anti-discrimination laws, we have applied a three-factor test:
(1) whether the [executive] has undertaken
traditional employee duties; (2) whether the
[executive] was regularly employed by a
separate entity; and (3) whether the
[executive] reported to someone higher in the
hierarchy.
E.E.O.C. v. Johnson & Higgins, Inc., 91 F.3d 1529, 1539 (2d Cir.
1996); see also Drescher v. Shatkin, 280 F.3d 201, 203-04 (2d
Cir. 2002).
The district court found that neither the officers nor the
delegates of Local 926 are “employees” within the meaning of
Title VII. With respect to the officers, the district court
acknowledged that they are responsible for the daily operations
of Local 926, but concluded that they were not “employees”
because “they ‘answer to no one except themselves.’” Appellees’
App’x 122. However, this finding conflicts with facts in the
record, including that the President has the authority to
schedule meetings and require the officers to attend, enforce the
laws of the union, determine an individual’s eligibility to
become an officer, and remove officers for poor attendance. In
addition, various officers’ responsibilities include “assist[ing]
the President in the discharge of the official duties,” id. at
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88, and “report[ing]” to the President non-members who seek to
participate, id. at 90. These facts could suggest that the
officers reported to the President. Accordingly, since the record
contains evidence showing that two of the three Johnson & Higgins
factors may have been satisfied, we believe that a reasonable
juror could find that the officers are employees within the
meaning of Title VII. See also Kern v. City of Rochester, 93 F.3d
38, 47 (2d Cir. 1996).
As for the delegates, the district court found that they
were not employees because, inter alia, their “only function is
to attend city-wide New York District Council meetings twice a
week, receiving approximately $75 per meeting.” Appellees’ App’x
123. The district court also found it relevant that they are
elected, they do not receive a salary, and their work is done in
the delegate body of the District Council rather than in the
local union. However, this conclusion simply takes Tagliaferro’s
characterization at face value and ignores evidence in the record
showing that delegates’ work is not limited to attending District
Council meetings. For example, that evidence shows that, after
District Council meetings, the delegates must attend Local 926
meetings and report back on a lengthy list of issues. In
addition, the evidence indicates that they are required to attend
meetings called by the President and they are paid $150.00 per
meeting. Most importantly, under Local 926's Bylaws, delegates
5
are also required to “perform duties and assignments designated
by the President.” Appellees’ App’x at 15. Since delegates may be
required to perform a broad range of duties (including some that
may be seen as traditional employment) and report to the
President, we believe that a reasonable juror could find that
delegates are employees. See Johnson & Higgins, Inc., 91 F.3d at
1539; Kern, 93 F.3d at 47.
Local 926 also argues that, even if its officers and
delegates were employees, it would not be liable because Title
VII applies only to any employer “who has fifteen or more
employees for each working day in each of twenty or more calendar
weeks in the current or preceding calendar year.” 42 U.S.C.
§ 2000e(b). The test for whether an employer “has” an “employee”
is whether the employer has an employment relationship with the
employee on the day in question, and not whether the employee
actually performs work or receives compensation on the day in
question. See Walters, 519 U.S. at 206. Thus, the number of board
meetings the officers and delegates attend is not dispositive if
they are Local 926's payroll—and the plaintiff has proffered a
number of employment-related documents indicating that they are.
Moreover, given the broad scope of the duties described in Local
926's Bylaws, it is not at all clear that their work is confined
to the days on which they attend meetings.
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For the foregoing reasons—and drawing all permissible
factual inferences in favor of Frederick—it cannot be said, on
the present factual record, that Local 926 was entitled to
judgment as a matter of law. See Gonzalez, 728 F.3d at 154.
Accordingly, the district court’s judgment is VACATED and the
case is REMANDED for further proceedings.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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