Juino v. Livingston Parish Fire District No. 5

Filing 28

ORDER granting 6 MOTION for Partial Summary Judgment filed by Livingston Parish Fire District No. 5 as stated herein; FURTHER ORDERED that the 26 Joint MOTION to Stay Discovery and Vacate Scheduling Order filed by Rachel Juino, Livingston Parish Fire District No. 5 is dismissed as moot by Judge Africk. (CAR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

RACHEL JUINO

CIVIL ACTION

VERSUS

No. 11-466

LIVINGSTON PARISH FIRE
DISTRICT NO. 5

SECTION “I”

ORDER AND REASONS
Before the Court is a motion1 for partial2 summary judgment3 filed by defendant,
Livingston Parish Fire Protection District No. 5 (“District 5”). Plaintiff, Rachel Juino (“Juino”),
opposes4 the motion. For the following reasons, the motion is GRANTED. Juino’s claims with
respect to violations of Title VII of the Civil Rights Act of 1964 are DISMISSED WITHOUT
PREJUDICE pursuant to Rule 12(b)(1). Because the Court declines to exercise supplemental
jurisdiction over Juino’s state law claims, all remaining state law claims are DISMISSED
WITHOUT PREJUDICE.
BACKGROUND
Juino became a volunteer firefighter with District 5 in November, 2009.5 Shortly

1

R. Doc. No. 6.

2

District 5 argues that Juino’s Title VII and LEDL claims must be dismissed. As stated infra, the Court does not
reach any of Juino’s state law claims. Consequently, this order does not resolve whether Juino is entitled to any
relief under the LEDL. See pp. 17-18. Likewise, the motion does not address Juino’s remaining state law claims for
violations of Louisiana’s whistle blower statute and for assault, battery and intentional inflection of emotional
distress.
3

The Court has construed this motion as a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule
12(b)(1) for the reasons set forth infra on pp. 3-4.
4

R. Doc. No. 9.

5

R. Doc. No. 9-2, p. 1.

thereafter, Juino alleges that another male firefighter, John Sullivan (“Sullivan”), began to
sexually harass her.6 According to Juino, Sullivan would frequently call her cell phone and
follow her around the fire department.7 Sullivan allegedly bragged to other firefighters that he
was “sleeping with” Juino.8 Juino states that she began to fear for her personal safety after an
incident where “Sullivan jerked [her] head from side to side and pulled [her] air pack valve off
[her] face mask in a confrontation.”9 Juino reported the harassment to Captain Charles Weaver
(“Weaver”) and Fire Chief Elmer Knab (“Knab”).10 Neither Weaver nor Knab allegedly took
any action to discipline Sullivan or to ensure that he stopped harassing Juino.11 Juino asserts that
Knab “told [her] that if [she] continued to complain about Sullivan’s behavior [she] could ‘drop
[her] gear’ and leave the department. ”12 Due to Sullivan’s continuing harassment, Juino states
she left her position with District 5 on April 2, 2010.13
Juino filed a charge with the Equal Employment Opportunity Commission (“EEOC”) and
requested a right-to-sue letter. The EEOC failed to issue the letter within six months.14
6

R. Doc. No. 9-2, pp. 1-2.
R. Doc. No. 9-2, pp. 1-2.
8
R. Doc. No. 9-2, p. 2.
9
R. Doc. No. 9-2, p. 2.
10
R. Doc. No. 9-2, p. 2.
11
R. Doc. No. 9-2, pp. 1-2.
12
R. Doc. No. 9-2, p. 2.
13
R. Doc. No. 1, ¶ 21.
7

14

R. Doc. No. 1., ¶ 29. Title 42, United States Code, Section 2000e-5(f)(1) provides that “within one hundred and
eighty days from the filing of such charge . . ., the Commission . . . shall so notify the person aggrieved and within
ninety days after the giving of such notice a civil action may be brought against the respondent named in the
charge.”
The U.S. Fifth Circuit Court of Appeals (“Fifth Circuit”) has stated that receipt of an EEOC right-to-sue
letter “is a condition precedent to a Title VII claim rather than a jurisdictional prerequisite,” and that such condition
precedent is subject to equitable modification. Pinkard v. Pullman-Standard, 678 F.2d 1211, 1218-19 (5th Cir.
1982). In Barnes v. Levitt, the Fifth Circuit observed that “[t]he 180-day provision essentially allows the claimant to
appeal to the district court if there has not been final agency action on her claim after six months from filing the
claim with the agency.” Barnes, 118 F.3d 404, 409 (5th Cir. 1997) (citing Munoz v. Aldridge, 894 F.2d 1489, 1492
(5th Cir. 1990)). However, because the plaintiff in Barnes did not cooperate with the EEOC investigation, the Fifth
Circuit held that the plaintiff could not pursue a lawsuit in federal court without a right-to-sue letter, underscoring
2

Consequently, Juino filed her complaint against District 5 for violations of Title VII of the Civil
Rights Act of 1964 (“Title VII,” 42 U.S.C. § 2000e, et seq.) due to sexual harassment and
retaliation for reporting sexual harassment, violations of Louisiana Employment Discrimination
law (“LEDL,” La. Rev. Stat. § 23:301, et seq.), violations of Louisiana’s whistle blower statute
(La. Rev. Stat. § 23:967, et seq.), assault, battery, and intentional infliction of emotional
distress.15
District 5 argues that Juino’s Title VII claims must be dismissed because District 5 is not
covered by Title VII as it does not have the requisite number of employees. Furthermore,
District 5 argues, even if it were covered by Title VII, Juino was a volunteer firefighter.
Consequently, Juino was not an “employee” of District 5 and she is not covered by Title VII.16
District 5 likewise argues that Juino’s LEDL claims must be dismissed because District 5 is not
covered by the LEDL and, even if it were covered, District 5 was not Juino’s employer.17 Juino
asserts that District 5 is covered by Title VII and the LEDL and that she is a covered employee
protected from such discrimination under both state and federal law.18
District 5 does not argue that Juino’s Title VII claims must be dismissed pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure. Nevertheless, the Court notes that whether
that she could not “be dilatory at the administrative level, wait for the 180 days to pass, and then invoke the
jurisdiction of the federal court.” Id. at 410.
Unlike in Barnes, Juino has cooperated with the EEOC. More than one year has elapsed since she filed her
charge with the EEOC and more than six months have elapsed since she requested her right-to-sue letter. Given
Juino’s compliance and the fact that District 5 has not argued that this Court lacks authority to hear this case because
the EEOC has not issued a right-to-sue letter, the Court finds that the above-captioned case is properly before the
Court. See, e.g., Pietras v. Board of Fire Comm’rs of Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir. 1999)
(“Given that [plaintiff] made a diligent effort to obtain a notice-of-right-to-sue letter from the EEOC and was denied
one on the erroneous basis that she was not an employee [because she was a volunteer firefighter], we believe that
the district court acted well within its discretion by excusing the absence of such a letter in this case.”).
15

R. Doc. No. 1, ¶¶ 24-27.
R. Doc. No. 6-1, p. 2.
17
R. Doc. No. 6-1, p. 3.
18
R. Doc. No. 9.
16

3

District 5 is an “employer” subject to Title VII is a jurisdictional question. See Greenlees v.
Eidenmuller Enters., 32 F.3d 197, 198 (5th Cir. 1994); see also Guillory v. Rainbow Chrysler
Dodge Jeep, LLC, 158 Fed. App’x 536, 537 (5th Cir. 2005) (stating “the statutory minimum of
fifteen employees is a jurisdictional requirement” and affirming dismissal pursuant to Rule
12(b)(1) where district court found that defendant did not satisfy the fifteen-employee threshold)
(citing Greenlees, supra).19 “When a requirement goes to subject-matter jurisdiction, courts are
obligated to consider sua sponte issues that the parties have disclaimed or have not presented.” 20
Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 648 (2012) (citing United States v. Cotton, 535
U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). Accordingly, if District 5 is not an
“employer” for purposes of Title VII, then Juino’s Title VII claims must be dismissed pursuant
to Rule 12(b)(1).
Because the Court finds that Juino’s federal claims under Title VII must be dismissed, the
Court declines to exercise supplemental jurisdiction over her remaining state law claims.
LAW AND ANALYSIS
I.

Rule 12(b)(1)

A motion to dismiss filed pursuant to Rule 12(b)(1) “allow[s] a party to challenge the
subject matter jurisdiction of the district court to hear a case.” Ramming v. U.S., 281 F.3d 158,
161 (5th Cir. 2001). The party asserting jurisdiction carries the burden of proof. Id. The district
court may base its determination as to its subject matter jurisdiction on: “(1) the complaint alone;
19

Whether a defendant is a Title VII “employer” is a jurisdictional question properly resolved pursuant to Rule
12(b)(1). Keller v. Niskayuna Consol. Fire Dist. 1, 51 F. Supp.2d 223, 226 (N.D.N.Y. 1999).

20

Because District 5’s motion was presented as a motion for partial summary judgment wherein District 5 argued
that it is not a covered employer for the purposes of Title VII, Juino has had sufficient notice that she must come
forward with evidence to support her argument that District 5 should be subject to Title VII liability. The Court has
all the necessary facts before it to determine whether District 5 is a Title VII “employer.”
4

(2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.” Id. If a Rule
12(b)(1) motion is filed in conjunction with other Rule 12 motions, a court should address the
jurisdictional attack before reaching any other arguments that attack the merits of a plaintiff’s
claims. Id. “A court’s dismissal of a case for lack of subject-matter jurisdiction is not a decision
on the merits, and the dismissal does not necessarily prevent the plaintiff from pursuing the claim
in another forum.” Advocacy Ctr. for the Elderly and Disabled v. La. Dep’t of Health and Hosp.,
731 F.Supp.2d 583, 588 (E.D. La. 2010) (Vance, J.) (citing Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977)).
II.

Title VII

Title VII prohibits discrimination “against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment, because of such individual’s . . .
sex.” 42 U.S.C. § 2000e-2(a)(1). “Sexual harassment is a form of discriminatory treatment, and
applies in any situation where there is discrimination ‘because of’ sex, whether it be between
members of the same or opposite sexes.” Cherry v. Shaw Coastal, Inc., ___ F.3d ___, 2012 WL
147867, at *3 (5th Cir. Jan. 19, 2012) (citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75,
81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). In order to be subject to liability pursuant to Title
VII, an “employer” must have at least fifteen “employees” “for each working day in each of
twenty or more calendar weeks in the current or preceding calendar year.” See 42 U.S.C. §
2000e(b).
The term “employee” is circularly defined as “an individual employed by an employer.”
See 42 U.S.C. § 2000e(f). A plaintiff must have an employer/employee relationship with the

5

defendant in order to pursue a Title VII employment discrimination claim. Oden v. Oktibbeha
Cnty., Miss., 246 F.3d 458, 465 (5th Cir. 2001). Consequently, to determine whether District 5
is an “employer” subject to liability for Juino’s claims under Title VII, the Court must follow a
two-step inquiry: (1) did District 5 have at least fifteen employees during the requisite time
period? and, if so, (2) did an employment relationship exist between Juino and District 5? See
Muhammad v. Dallas Cnty. Cmty. Supervision and Corr., 479 F.3d 377, 380 (5th Cir. 2007).
District 5 provides fire protection services to certain areas of Livingston Parish,
Louisiana. During 2009 and 2010, District 5 states that it employed only three “employees” and
that its “primary source of manpower is volunteers.”21 The number of volunteer firefighters on
District 5’s roster fluctuates, but historically it has had roughly fifty volunteers at any one time.22
District 5 argues that because it does not meet Title VII’s fifteen-employee threshold, it may not
be subject to liability. Likewise, because Juino is a volunteer firefighter and has no
employer/employee relationship with District 5, she has no cause of action pursuant to Title VII.
Juino counters with a District 5 membership roster dated July 19, 2010, which lists
eighty-three individuals.23 Juino asserts that the roster provides evidence that District 5
employed more than the requisite fifteen-employee minimum and, as such, it is covered by Title
VII because volunteer firefighters such as herself are Title VII “employees.”24 District 5
responds that it not is an “employer” because all persons listed on the roster, except for three
actual employees, are volunteer firefighters like Juino. Volunteer firefighters, District 5
maintains, are not Title VII employees.
21

R. Doc. No. 6-3, p. 1.
R. Doc. No. 6-3, p. 1.
23
R. Doc. No. 9-2, pp. 4-5.
24
R. Doc. No. 9, p. 5.
22

6

Essentially, the two-step inquiry that the Fifth Circuit has set forth in cases such as
Muhammad, supra, collapses when a court is faced with the factual scenario presented in this
case. In order to determine at the first step whether District 5 employed at least fifteen Title VII
employees, the Court must analyze whether employment relationships exist between District 5
and volunteer firefighters such as Juino. See Holder v. Town of Bristol, 2009 WL 3004552, at *2
(N.D. Ind. Sept. 17, 2009) (“In this case, the second issue necessarily turns on the outcome of the
first because if [plaintiff, a reserve police officer,] and the other reserve officers are not
employees, then [defendant] employs too few employees to be subject to Title VII liability.”).
Consequently, the Court will consider the two questions together because if volunteer firefighters
– which make up the bulk of District 5’s manpower – are not in employment relationships with
District 5, then District 5 does not reach the fifteen-employee threshold and it cannot be subject
to liability pursuant to Title VII.
District 5 urges the Court to adopt the O’Connor two-step analysis to resolve whether
Juino is a covered employee. See O’Connor v. Davis, 126 F.3d 112, 115-16 (2nd Cir. 1997);
Llampallas v. Mini-Circuits Lab, Inc., 163 F.3d 1236, 1243 (11th Cir. 1998); see also Haavistola
v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993). District 5’s proposed test
would require the Court to determine, as a threshold matter, whether Juino has received
remuneration in her work as a volunteer firefighter. Id. If Juino satisfies this requirement, the
Court would then perform a common law agency analysis. Id. Other courts have considered
remuneration as merely one, non-dispositive factor, of a common law agency analysis. See, e.g.,
Bryson v. Middlefield Volunteer Fire Dep’t, 656 F.3d 348, 352-56 (6th Cir. 2011); Fichman v.
Media Center, 512 F.3d 1157, 1160-61 (9th Cir. 2007) (analyzing agency principals to determine

7

whether a directors and independent volunteer producers of a non-profit organization are
“employees” under the Age Discrimination in Employment Act, 42 U.S.C. § 12101, et seq.).25
Juino underscores that some courts have held that whether or not a volunteer firefighter receives
a salary is not a litmus test for determining whether such a person was an employee for the
purposes of Title VII. See, e.g., Pietras v. Board of Fire Comm’rs of Farmingville Fire Dist.,
180 F.3d 468 (2d Cir. 1999).
The Fifth Circuit has not addressed whether district courts should employ a two-step
remuneration analysis versus a common law agency analysis. At least one district court in the
Fifth Circuit has considered whether a plaintiff received actual financial benefits as a threshold
matter. See Moran v. Harris County, 2007 WL 2534824, at *1-2 (S.D. Tex. Aug. 31, 2007)
(concluding that a reserve deputy constable who received no “financial benefits” was not an
employee because “[e]mployees expect to get paid”). Another district court in the Fifth Circuit
has indicated that it would apply the hybrid economic realities/common law control test set forth
in Diggs v. Harris Hosp.-Methodist, Inc., 847 F.2d 270, 272 (5th Cir. 1988). See Noah v.
Community Place, 2011 WL 237701, at *2 (S.D. Miss. Jan. 24, 2011) (noting Diggs, but
ultimately declining to analyze the issue because the parties did not brief it). The Court agrees
with District 5 that the O’Connor approach is likely the better inquiry in light of the facts of this
case. However, given that the Fifth Circuit has provided no guidance on this issue, out of an
abundance of caution, the Court will conduct both analyses.

25

See n.33, infra.
8

A. Remuneration Test
In O’Connor, the plaintiff, Bridget O’Connor (“O’Connor”), was a college student
interning at Rockland Psychiatric Institute (“Rockland”) when a staff physician sexually
harassed her. Rockland supervised the plaintiff’s work, but paid her nothing. O’Connor
received federal work-study funds from her college for her work at Rockland. O’Connor sued
for sexual harassment under Title VII. The U.S. Second Circuit Court of Appeals rejected
O’Connor’s argument that she was an employee under common law agency principles for the
purposes of Title VII, and it held that O’Connor had to show that she was “hired” before such an
agency analysis would be relevant:
Both parties on appeal (and the district court below) addressed themselves to the
question of whether or not O’Connor was an employee within this [common law
agency] framework [as set forth in Cmty. for Creative Non-Violence v. Reid, 490
U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)]. However, we think that this
analysis is flawed because it ignores the antecedent question of whether
O’Connor was hired by Rockland for any purpose. As the Supreme Court
suggests, the common feature shared by both the employee and the independent
contractor is that they are ‘hired part[ies],’ id., and thus, a prerequisite to
considering whether an individual is one or the other under common-law agency
principles is that the individual have been hired in the first instance. That is, only
where a ‘hire’ has occurred should the common-law agency analysis be
undertaken.

O’Connor, 126 F.3d at 115. Whether O’Connor received “direct or indirect economic
remuneration” went to the heart of her status as a “hired” party. Id. Because O’Connor had not
received any such compensation, the court found that “the preliminary question of remuneration
is dispositive in this case” and it concluded that she was not an employee within the meaning of
Title VII. Id.

9

When a plaintiff like Juino has received “numerous job-related benefits” that do not
include a traditional salary, the Second and Fourth Circuit Courts of Appeal consider whether
these benefits constitute “indirect but significant remuneration” to be a factual question that must
be resolved by the factfinder. See Pietras v. Board of Fire Comm’rs of Farmingville Fire Dist.,
180 F.3d 468, 473 (2d Cir. 1999) (“We conclude, in accord with Haavistola, that a non-salaried
volunteer firefighter’s employment status under Title VII is a fact question when that firefighter
is entitled to significant benefits.”); Haavistola v. Cmty. Fire Co. of Rising Sun, 6 F.3d 211, 222
(4th Cir. 1993) (holding that the factfinder must resolve the “ultimate conclusion whether the
benefits represent indirect but significant remuneration as Haavistola contends or inconsequential
incidents of an otherwise gratuitous relationship”). The parties here do not dispute what benefits
Juino has received. Consequently, for the purposes of Rule 12(b)(1), the Court need only resolve
the legal effect of such benefits.
District 5 did not pay Juino a salary, it does not pay social security taxes (or any other
taxes) for the benefit of its volunteer firefighters, it does not provide retirement benefits, and it
does not provide annual leave.26 Most District 5 volunteer firefighters have full-time paying
jobs.27 As set forth in her affidavit, the indirect benefits that Juino received as a volunteer
firefighter included: (1) two dollars for every emergency call to which she responded;28 (2) a life
insurance policy; (3) emergency training and first responder courses; and (4) a badge, uniform,

26

R. Doc. No. 23-1, p. 1.

27

R. Doc. No. 23-1, p. 2.

28

Juino claims that she received this reimbursement. R. Doc. No. 9-2, p. 2. District 5 asserts that, because she was
a probationary member of District 5, Juino did not receive this reimbursement during her time as a volunteer
firefighter. R. Doc. No. 6-3, p. 2. The Court will assume that Juino did receive the two dollar reimbursement
because, ultimately, whether she did or did not receive it does not affect the Court’s analysis.
10

emergency gear, and dress uniform.29 The Court finds these indirect benefits to be insubstantial,
especially when compared with those that the plaintiffs received in Pietras and Haavistola. See
Pietras, 180 F.3d at 471 (holding that the district court in a bench trial did not clearly err when
the judge found that a volunteer firefighter was an employee because he received a retirement
pension, life insurance, death benefits, disability insurance, and some medical benefits);
Haavistola, 6 F.3d at 211 (reversing entry of summary judgment and remanding for a trial where
volunteer firefighter was entitled to a state-funded disability pension, survivors’ benefits for
dependents, benefits under the Federal Public Safety Officers’ Benefits Act, group life insurance,
scholarships for survivors, professional certifications, tuition reimbursement, tax exemptions and
coverage under Maryland’s Workers Compensation Act).
Rather, the Court finds that Juino’s benefits are most analogous to those received in
Holder v. Town of Bristol, 2009 WL 3004552 (N.D. Ind. Sept. 17, 2009), where the district court
concluded that a reserve police officer was not a Title VII employee. In Bristol, plaintiff, Joel
Holder (“Holder”), claimed that he was subjected to severe sexual harassment and a hostile work
environment while serving as a volunteer reserve police officer. Holder, 2009 WL 3004552, at
*1. As an officer, Holder was entitled to: “(1) free use of police equipment; (2) a uniform and
dry cleaning allowance; (3) worker’s compensation insurance; (4) disability insurance; and (5)
state-funded life insurance for death in the duty.” Id. at *5. With respect to these benefits, the
court observed:
But all of these so-called benefits are incidental to Holder’s volunteer
duties and have no independent value. For example, the police department pays
for Holder’s use of a police car, weapons, and protective gear. This is only
sensible since the reserve officers need these items to perform their volunteer
29

R. Doc. No. 9-2, p. 2.
11

duties. It’s like giving someone who volunteers at a soup kitchen a ladle. If the
volunteer officers are putting themselves in harm’s way in order to ensure public
safety, the least the Town can do is pay for their equipment. But Holder doesn’t
get to keep these items for personal use. And although the Town gives reserve
officers money for a police uniform and dry cleaning, this too only serves the
purpose of aiding them in their official duties. Holder can’t just pocket the money
and wear civilian clothes on duty.
As for the line-of-duty benefits that Holder received – workers’
compensation, disability insurance, and death benefits – these are not guaranteed
forms of remuneration. Holder and his dependents would have only seen a dime if
something bad happened to him while he was on duty. Holder was never injured
in the line of duty. So he didn’t receive any health insurance benefits or
compensation for medical expenses. It’s worth noting that these insurance
benefits are just as much for the Town’s protection as they are for the reserve
officers. If Holder had injured himself and made a claim against the Town, the
policies would cover the medical costs. So, without more, it can’t be said that
these mechanisms for insuring risk had independent value as consideration in
exchange for labor.

Id. The court concluded that, “Holder’s work for the Town of Bristol is more akin to community
service than gainful employment.” Id. at *6.
District 5 has afforded Juino even fewer benefits than those the Town of Bristol afforded to
Holder. The two dollar per call reimbursement is intended to defray emergency response costs –
fuel and wear and tear on personal vehicles, etc. – because District 5 asks volunteer firefighters
to supply their own transportation.30 This reimbursement, along with the emergency training and
gear supplied to Juino, are similar to the “ladles” given to soup kitchen volunteers. Id. at *5.
Likewise, the life insurance policy only has value if she suffers an unfortunate event. This is not
the type of benefit, like general medical insurance, upon which an individual would be
economically dependent. See Keller v. Niskayuna Consol. Fire Dist. 1, 51 F. Supp.2d 223, 232

30

R. Doc. No. 6-2, p. 2.

12

(N.D.N.Y. 1999) (“If a financial benefit or a benefit with significant financial value (e.g. general
medical insurance) is received in an ongoing, roughly contemporaneous fashion, then an
individual might well depend upon it, supporting a finding that they are in an employment
relationship. However, if the benefit [such as a small pension] is received only after many years
of services, then any concurrent dependance [sic] is absent.”).31 The Court agrees that “[w]hen
compared to the type of remuneration ordinarily derived from an employment relationship, the
benefits received by [Juino] are simply too minor to rise to a level that can be characterized as
compensation.” Scott v. City of Minco, 393 F.Supp.2d 1180, 1190 (W.D. Ok. 2005).32
Because Juino has not received significant remuneration for her work as a District 5
firefighter, she does not satisfy the first step of the remuneration test. Utilizing such a test, Juino
is not a Title VII employee and, accordingly, District 5 is not a Title VII employer.33

31

In Keller, the only benefit to which the plaintiff, a volunteer firefighter, was entitled was the ability to participate
in a “service award program” that awarded points for completing a certain number of tasks in a given year. If the
plaintiff were able to satisfy the program’s requirements, she would receive some financial benefit when she reached
the age of 55. The Keller court found that this benefit was not sufficient remuneration for plaintiff to be considered
a Title VII employee and, consequently, that the defendant did not employ fifteen employees as required by Title
VII. Keller, 51 F.Supp.2d at 232.
32

The plaintiff in Minco was also a volunteer firefighter who received a uniform allowance, certain tax credits and a
pension through the Oklahoma State Firefighters Association. The Minco court likewise concluded that these
benefits were too insubstantial for the plaintiff to be a Title VII employee and that the fire department was not a
Title VII employer. Minco, 393 F.Supp.2d at 1190-91.

33

See also Evans v. Wilkinson, 609 F.Supp.2d 489 (D.Md. 2009) (volunteer rescue squad E.M.T. who could
participate in a service award program similar to that in Keller, could apply for a first-time homeowner’s assistance
program, and was eligible for a scholarship program was not a Title VII employee); Moran v. Harris County, 2007
WL 2534824 (S.D. Tex. Aug. 31, 2007) (reserve police constable who could “take [law enforcement] certification
classes at no cost, make connections with local police officers, and get on-the-job experience filling in for actual
deputy constables” was not a Title VII employee); Tawes v. Frankford Volunteer Fire Co., 2005 WL 83784 (D.Del.
Jan. 13, 2005) (volunteer firefighter who received secondary automobile insurance for using his personal vehicle to
respond to emergency calls, insurance against death or injury while performing firefighter duties, discounts on
wireless telephone contracts, and a small pension was not an “employee” for purposes of the Americans with
Disabilities Act (“ADA,” 42 U.S.C. 12101, et seq.)).
The Court notes that Title VII’s definition of “employee” (“an individual employed by an employer,” 42
U.S.C. § 2000e(f)) is identical to the ADA’s definition of “employee” (“an individual employed by an employer,”
42 U.S.C. § 12111(4)). Courts often look to the various federal employment discrimination acts when interpreting
13

B.

Hybrid Economic Realities/Common Law Control Test

The Court agrees with District 5 that the remuneration test better accommodates the
factual scenario at issue in this case because it requires a determination, as a threshold matter, of
whether a plaintiff is a “hired” party. Nevertheless, as stated, some courts look to agency
principals to resolve whether Juino is a Title VII covered employee. See, e.g., Bryson v.
Middlefield Volunteer Fire Dep’t, 656 F.3d 348, 352-56 (6th Cir. 2011).34
The Fifth Circuit utilizes the hybrid economic realities/common law control test set forth
in Diggs v. Harris Hosp.-Methodist, Inc., 847 F.2d 270 (5th Cir. 1988), to determine whether a
plaintiff is a Title VII employee or an independent contractor. 35 Diggs, 847 F.2d at 272-73.
First, the Court must “consider[] the economic realities of the work relationship.” Id. at 272
(citing Mares v. Marsh, 777 F.2d 1066, 1067 (5th Cir. 1985)). This economic realities inquiry
investigates whether purported “employees,” “as a matter of economic reality, are dependent
upon the business to which they render service.” Id. at 272 n.3 (quoting Mares, 777 F.2d at 1067
(internal quotation marks omitted)). Second, the Court considers whether the “employer” has the
right to control the “employee” by assessing several factors:
(1) the kind of occupation, with reference to whether the work usually is done
under the direction of a supervisor or is done by a specialist without supervision;
common language. See, e.g., Flowers v. S. Reg’l Phyisican Servs. Inc., 247 F.3d 229, 233 (5th Cir. 2001) (“We
conclude that the language of Title VII and the ADA dictates a consistent reading of the two statutes.”).
34

In Bryson, the Sixth Circuit rejected the remuneration test, stating “[w]e believe that the district court erred,
however, in its conclusion that remuneration must be an independent antecedent inquiry,” Bryson, 656 F.3d at 353.
It held that “[a]lthough remuneration is a factor to be considered, it must be weighed with all other incidents of the
relationship. Id. at 355.
35

The fact that this test is used to distinguish between employees and independent contractors is why the
remuneration test is the more appropriate analysis. As another district judge has observed when faced with similar
facts, conducting a common law agency analysis is “like using a screwdriver when the job calls for a wrench. The
question isn’t so much whether [a plaintiff] is an independent contractor as opposed to an employee, but whether he
is a volunteer or an employee.” Holder, 2009 WL 3004552, at *3.
14

(2) the skill required in the particular occupation; (3) whether the “employer” or
the individual in question furnishes the equipment used and the place of work; (4)
the length of time during which the individual has worked; (5) the method of
payment, whether by time or by the job; (6) the manner in which the work
relationship is terminated; i.e., by one or both parties, with or without notice and
explanation; (7) whether annual leave is afforded; (8) whether the work is an
integral part of the business of the “employer;” (9) whether the worker
accumulates retirement benefits; (10) whether the “employer” pays social security
taxes; and (11) the intention of the parties.
Id. at 272-73 (quoting Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir. 1986)).
First, with respect to the “economic reality” of the relationship between Juino and District
5, it is clear that Juino was not dependent upon District 5 for her livelihood. Even assuming that
Juino received the two dollar per call reimbursement, she responded to thirty-nine calls during
her four months as a District 5 volunteer firefighter – for which she would have been reimbursed
$78.00.36 Likewise, Juino could not depend upon the other benefits District 5 provided –
training; a badge, gear and uniforms; and an insurance policy – to support herself. Juino has not
informed the Court whether she has another job, but most District 5 volunteer firefighters have
other full-time employment with which they support themselves.37
Second, the balance of the “right to control” factors also do not weigh in Juino’s favor.
The Court recognizes that the first, second and eighth factors would support a finding that Juino
and District 5 had an employment relationship. Because Juino was a “rookie” firefighter, she
was closely supervised.38 She also had to undergo training in order to be eligible to respond to

36

R. Doc. No. 23-1, p. 2.

37

R. Doc. No. 23-1, p. 2.

38

However, Juino also had the right to determine the calls to which she would respond and the meetings that she
would attend. District 5 did not schedule when she would respond to calls, did not dictate when she had to be
present at the firehouse, and did not monitor how she spent her time there. R. Doc. No. 23-1, pp. 1-2.
15

emergency calls.39 Finally, firefighting is arguably an integral part of District 5’s “business” of
fighting fires.40
Nevertheless, District 5 did not supply all of her equipment. While the defendant did
give Juino a badge, equipment, etc., Juino had to expend her own resources in order to respond
to emergency calls.41 Juino was a probationary volunteer who would not necessarily have been
able to continue her volunteer service if she did not complete certain training responsibilities.42
As the Court discussed above, Juino received some indirect benefits, but she was not paid a
salary, stipend or analogous compensation.43 District 5 did not provide paid annual leave or
retirement benefits.44 District 5 did not pay social security taxes for Juino.45 In sum, taken as a
whole, District 5 did not have the right to control Juino’s service. Because Juino does not satisfy
the economic realities/common law control test, she is not a Title VII employee and,
accordingly, District 5 is not a Title VII employer.

39

R. Doc. No. 23-1, p. 3.

40

Regarding the intention of the parties, District 5 and Juino, unsurprisingly, assert opposite opinions regarding their
intentions. The Court has no evidence (such as a written contract), other than their statements, from which to divine
their intentions. Consequently, the Court draws no inferences from that factor.
Furthermore, with respect to factor six, Juino claims she was constructively discharged whereas District 5
argues that she simply stopped her volunteer service without providing any notice. The Court considers this factor
to be neutral and draws no inferences from it in favor of either party.

41

District 5 provided the two dollar reimbursement in order to defray response costs borne by volunteers. R. Doc.
No. 6-2, p. 2.

42

R. Doc. No. 23-1, p. 3.

43

Juino argues that she was entitled to take a ninety day leave of absence if family circumstances, etc., so required.
Juino would not receive any compensation or remuneration if she exercised her right to take this leave. She asserts
that this ability to take a leave of absence is analogous to “annual leave.” R. Doc. No. 25, p. 7. Generally, “annual
leave” is time that is provided as a form of compensation (vacation time, holidays, and the like). Juino’s ability to
take a ninety day leave of absence constituted no such benefit.

44

R. Doc. No. 23-1, p. 1.

45

R. Doc. No. 23-1, p. 1.
16

III.

Juino’s Remaining State Law Claims

Having dismissed Juino’s federal Title VII claims before trial, the Court next considers
whether to exercise supplemental jurisdiction over Juino’s remaining state law claims for
violations of the LEDL, Louisiana’s whistle blower statute, assault, battery, and intentional
infliction of emotional distress. See Cudd Pressure Control Inc. v. Roles, 328 Fed. App’x 961,
966 n.2 (5th Cir. 2009) (“[T]the district court should keep in mind the Supreme Court’s
instructions that ‘if the federal claims are dismissed before trial, . . . the state claims should be
dismissed [or remanded] as well.’ ”) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 726 (1966)). “When a court dismisses all federal claims before trial, the general rule is to
dismiss any [supplemental] claims. However the dismissal should expressly be without
prejudice so that the plaintiff may refile in the appropriate state court.” Bass v. Parkwood
Hospital, 180 F.3d 234, 246 (5th Cir. 1999).
The Court recognizes that 28 U.S.C. § 1367 authorizes district courts to decline
supplemental jurisdiction over related state law claims if “(1) the claim raises a novel or complex
issue of State law, (2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction, (3) the district court has dismissed all claims over
which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.” Furthermore, this Court should also consider “ the commonlaw factors of judicial economy, convenience, fairness, and comity” in determining whether to
exercise supplemental jurisdiction. Mendoza v. Murphy, 532 F.3d 342, 347 (5th Cir. 2008).
Balancing all of these factors, the Court finds that it should not exercise supplemental
jurisdiction.

17

Accordingly, the Court declines to exercise supplemental jurisdiction over plaintiff’s
remaining state law claims. See 28 U.S.C. § 1367(c)(3) (“The district court may decline to
exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction.”); Severin v. Parish of Jefferson, 357 Fed. App’x
601, 606 (5th Cir. 2009).
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that District 5’s motion is GRANTED and Juino’s Title VII claims
are DISMISSED WITHOUT PREJUDICE pursuant to Rule 12(b)(1) due to a lack of subject
matter jurisdiction.
IT IS FURTHER ORDERED that Juino’s remaining state law claims are DISMISSED
WITHOUT PREJUDICE because the Court declines to exercise supplemental jurisdiction.
IT IS FURTHER ORDERED that the parties’ joint motion46 to stay discovery and
vacate the scheduling order in the above-captioned case pending the Court’s decision regarding
the motion for partial summary judgment is DISMISSED AS MOOT.
New Orleans, Louisiana, February 13, 2012.

__________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

46

R. Doc. No. 26.
18