Date: 02-01-2018

Case Style:

Case Number: 17‐54‐cv

Judge: Per Curiam

Court: United States Court of Appeals for the Second Circuit on appeal from the Eastern District of New York

Plaintiff's Attorney: Mike O'Neill

Defendant's Attorney: Caroline A. Olsen

Description: Plaintiff Anthony Knight, an African‐American electrician, sued Defendant
State University of New York at Stony Brook (“Stony Brook”) for discrimination
and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
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§ 2000e et seq., when it terminated Knight’s employment after he reported racist
graffiti in a bathroom located at his worksite. At trial, the parties disputed
(among other issues) whether Knight qualified as an employee for purposes of
Title VII, and the jury was presented with conflicting evidence on that issue. At
the close of evidence, Knight moved for judgment as a matter of law that he was
Stony Brook’s employee. The United States District Court for the Eastern District
of New York (Joanna Seybert, Judge) denied Knight’s motion and submitted the
issue to the jury, which found that Knight was not an employee. On appeal,
Knight argues that: (1) the district court should not have submitted the question
of whether he was an employee to the jury; (2) the district court misinstructed
the jury on how to determine whether he was an employee; (3) the evidence was
insufficient to support the jury’s conclusion that he was not an employee; and (4)
the district court made several other errors unrelated to the question of whether
Knight was an employee. For the following reasons, we AFFIRM.
BACKGROUND
At all relevant times, Knight, who is African American, was an electrician
and a member of the International Brotherhood of Electrical Workers, Local 25
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(“the Union”). The Union had an arrangement with Stony Brook under which it
referred union electricians to Stony Brook when additional workers were needed
to supplement its workforce during large construction projects.
Pursuant to this arrangement, the Union referred Knight to Stony Brook,
and in April 2011, he began working on a construction project for a psychiatric
emergency facility. Sometime that summer or fall,1 Knight discovered racist
graffiti in the bathroom he used at work every morning. He reported the graffiti
to the project’s foreman, Thomas Murphy, who was also a member of the Union,
and to the shop steward, James Malley.2 His work was terminated sometime
thereafter.3 Knight had worked on the project for approximately six months.
1 Testimony from different witnesses placed his discovery in either August 2011
or October 2011.
2 The parties presented conflicting evidence regarding Murphy’s and Malley’s
reactions to Knight’s report. Knight testified that they were indifferent to his
complaint, but Murphy and Malley testified that they acted immediately to paint
over the graffiti. Because the jury decided the case against Knight on other
grounds, it did not have occasion to resolve this dispute.
3 The parties also disputed the timing of Knight’s termination by Stony Brook.
While Knight contends that he was laid off about a week after he reported the
racist graffiti, Malley testified that Knight’s job ended a full two months after the
report.
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Knight then initiated this action against Stony Brook, claiming that he had been
discriminated against on the basis of his race and retaliated against for reporting
the graffiti in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq.
Stony Brook moved to dismiss both claims for failure to state a claim. The
district court granted the motion without prejudice, and Knight submitted a first
amended complaint. Stony Brook again moved to dismiss, and the district court
dismissed the discrimination claim with prejudice, but declined to dismiss the
retaliation claim.
The retaliation claim proceeded to a jury trial. At trial, Stony Brook argued
that Knight was not its employee, and that it therefore could not be held liable
under Title VII. As the district court recognized, whether a plaintiff is an
employee of a defendant for purposes of Title VII is determined by what are
known as the Reid factors. See Cmty. for Creative Non‐Violence v. Reid, 490 U.S. 730,
751–52 (1989). Borrowing from the common law of agency, the Reid Court
established a non‐exhaustive list of thirteen factors which guide the
determination of employee status. Id. Those factors are:
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the hiring party’s right to control the manner and
means by which the product is accomplished[;] . . . 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.
Id. (footnotes omitted).
The parties presented conflicting evidence regarding several of these
factors. Knight elicited testimony that Stony Brook provided some tools for him
and the other electricians, tending to show that he was an employee; however,
this testimony also revealed that the electricians were required to supply their
own basic tools, tending to show the opposite. Knight also presented evidence
that Stony Brook controlled the manner and means by which the work was
accomplished because Knight received specific assignments every morning, and
had no discretion over how or when the work was accomplished; Stony Brook
countered by arguing that Knight and the other union electricians had significant
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control over their work because they were given only an overview of the work
that needed to be done, and were then instructed to handle the details of the
work on their own. Similarly, when Knight argued that he was an employee
because Stony Brook provided him with benefits, Stony Brook produced
evidence that the benefits were in fact paid to the union, which was charged with
dispersing the benefits to individual members.
Moreover, the factors as to which the facts were not disputed did not
clearly favor one party or the other. For example, Knight presented
uncontradicted evidence that he was paid by the State Comptroller and was
treated as an employee for tax purposes, and Stony Brook, in turn, presented
undisputed evidence that the construction work for which Knight was hired was
not its usual business, and that the duration of the employment was brief. In
sum, several of the factors were disputed, with evidence presented on both sides,
and the rest of the factors did not trend decisively in favor of either party.
At the close of evidence, Knight moved pursuant to Fed. R. Civ. P. 50(a) for
judgment as a matter of law that he was Stony Brook’s employee. The district
court denied Knight’s motion and submitted the issue to the jury, finding that
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“the variety of evidence” created questions of fact that needed to be determined
by a jury. App. at 130. It instructed the jury to consider and balance the Reid
factors in determining Knight’s employment status. After brief deliberations, the
jury returned a verdict finding that Knight was not an employee of Stony Brook.
Because that finding resolved the case in Stony Brook’s favor, the jury did not
make any determination about the other elements of Knight’s retaliation claim.
Knight did not renew his Rule 50 motion after the verdict under Rule
50(b), or seek a new trial. Instead, he filed this appeal, raising the claims of error
set forth above.
DISCUSSION
I. Permitting the Jury to Determine Whether Knight was an Employee
First, Knight contends that a judge, not a jury, should decide whether an
individual is an employee, and that the district court therefore erred when it
submitted that question to the jury. Whether a jury may determine a plaintiff’s
status as an employee presents a question of law. We review questions of law de
novo. Waggoner v. Barclays PLC, 875 F.3d 79, 97 (2d Cir. 2017) (quoting Roach v.
T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015)) (“[W]e review the district
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court’s construction of legal standards de novo”); see also U.S. v. Salameh, 152 F.3d
88, 142 (2d Cir. 1998) (“Whether jury instructions were properly given is a
question of law that this court reviews de novo”).
We rejected an argument virtually identical to Knight’s in Kirsch v. Fleet
Street, Ltd., 148 F.3d 149 (2d Cir. 1998). In that case a plaintiff sought a new trial
on his state labor law claim on the ground that “the question of whether he was
an employee was improperly submitted to the jury.” Id. at 170. Like Knight, he
argued that the question was a legal one that only a court could decide after the
jury had made relevant factual findings. Id. Without deciding whether
determining employment status presents a question of fact or law, we concluded
that “the submission of that question to the jury” did not warrant a new trial. Id.
at 171. We noted that a district court always has discretion to call for a general
verdict.4 Accordingly, we reasoned that the plaintiff had not suffered any harm
to his substantial rights from the trial court’s submission of the “employee” issue
4 See Fed. R. Civ. P. 49(a) (“The court may require a jury to return only a special
verdict . . . .” (emphasis added)); see also Skidmore v. Balt. & O.R. Co., 167 F.2d 54,
67 (2d Cir. 1948) (“[W]e cannot hold that a district judge errs when, as here, for
any reason or no reason whatever, he refuses to demand a special verdict . . . .”).
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to the jury on general instructions rather than having the jury decide only the
narrow factual questions and reserving the bottom‐line determination of the
issue to itself as a question of law. Because errors that do not affect substantial
rights are not grounds for reversal, 28 U.S.C. § 2111, reversal was not warranted.
Kirsch controls here. Although, as Knight notes, we have stated that the
district court’s “ultimate determination as to whether a worker is an employee . .
. is a question of law,” Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111,
115 (2d Cir. 2000) (internal quotation marks omitted), Kirsch rejected the
argument that submitting the question to a jury is prejudicial error, the same
contention Knight now makes. In so doing, Kirsch noted that whether an
individual is an employee is “regularly presented to juries that are instructed to
return general verdicts, informed by the court’s instructions on the law and
given the direction that if they find that the plaintiffs in question were employees
. . . they should simply state that they find in favor of the plaintiffs.” Kirsch, 148
F.3d at 171.5 Whether the jury is asked a simple question about liability or a series
5 Similarly, the Supreme Court has held that a jury may decide the employer/
employee issue in Federal Employers’ Liability Act cases. Baker v. Tex. & Pac. Ry.
Co., 359 U.S. 227, 228 (1959) (concluding in Federal Employers’ Liability Act case
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of questions, the first of which concerns whether the plaintiff was an employee,
the effect is the same.
As we held in Kirsch, a trial court does not commit error by submitting the
question of whether the plaintiff was the defendant’s employee to the jury,
whether by general verdict or by special question. Accordingly, we find no error
in the district court’s action.
II. Instructing the Jury on the Reid Factors
Second, Knight asserts that the district court should not have instructed
the jury on the Reid factors because those factors are only intended to distinguish
employees from independent contractors, and Stony Brook did not contend that
Knight was an independent contractor. The correctness of the jury instructions
presents a question of law that we review de novo. U.S. v. Salameh, 152 F.3d 88,
that although whether an individual is an employee is a question of law, it
“contains factual elements such as to make it one for the jury under appropriate
instructions as to the various relevant factors under [the] law”); see also
Restatement (Second) of Agency § 220, cmt. c (Am. Law Inst. 1958) (“If the
inference is clear that there is, or is not, a master and servant relation, [the
determination] is made by the court; otherwise the jury determines the question
after instruction by the court as to the matters of fact to be considered.”).
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142 (2d Cir. 1998) (“Whether jury instructions were properly given is a question
of law that this court reviews de novo”).
When the Supreme Court articulated the Reid factors, it stated that where
Congress uses the term “employee” without meaningfully defining it, “Congress
intended to describe the conventional master‐servant relationship as understood
by common‐law agency doctrine.” Reid, 490 U.S. at 740. The Court then reduced
that doctrine to thirteen non‐exclusive factors. Id. at 751–52. We have since
determined that those Reid factors, subject to a slight alteration, see O’Connor v.
Davis, 126 F.3d 112, 115‐16 (2d Cir. 1997) (imposing antecedent requirement that
individual receive remuneration), constitute the proper test under which to
analyze whether an individual is an employee for purposes of Title VII, see, e.g.,
Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226–27 (2d Cir. 2008); see also
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 321–24 (1992) (applying Reid
factors to statutory scheme containing similarly circular definition of employee
as Title VII). Although the Reid test may distinguish employees from
independent contractors, see Reid, 490 U.S. at 751, that is not its only function.
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Rather, the Reid factors are the method of analysis Congress intended to require
for determining employee status generally under Title VII.
Tellingly, while arguing that the Reid factors apply only for distinguishing
employees from independent contractors, Knight offers no alternate test that
should be used to determine employee status in other contexts, except to note
that in some cases, an employee of one entity may be deemed an employee of
another entity under the “joint employer” theory. See Arculeo v. On‐Site Sales &
Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005). However, that theory looks to the
relationship between two possible employers when “an employee” is “formally
employed by one entity,” and seeks to impose liability on another. Id. It therefore
does not help to answer the antecedent question at issue here, of whether an
individual is an employee of a single individual or entity. Thus, the “joint
employer” inquiry cannot replace the Reid factors.
We therefore reject Knight’s contention that the district court erred when it
instructed the jury to use the Reid factors to determine whether he was Stony
Brook’s employee.6
6 To the extent Knight argues that Stony Brook has not established that he was an
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III. The Application of the Reid Factors
Third, Knight argues that even if the Reid factors apply, they compel the
conclusion that he was Stony Brook’s employee and that the district court
therefore erred in denying his Rule 50(a) motion for judgment as a matter of law.
[Blue 18] Stony Brook responds that Knight is precluded from making such an
argument because he failed to file a renewed motion for judgment as a matter of
law under Rule 50(b) of the Federal Rules of Civil Procedure following the jury’s
verdict. We agree.
In Unitherm Food Systems, Inc. v. Swift‐Eckrich, Inc., the Supreme Court
determined that a party’s failure to make a renewed, post‐verdict motion for
judgment as a matter of law pursuant to Rule 50(b) “forecloses its challenge to
the sufficiency of the evidence” on appeal. 546 U.S. 394, 404 (2006). Here, Knight
failed to file a motion under Rule 50(b), or for that matter make any motion
challenging the jury’s conclusion that he was not an employee of Stony Brook.
independent contractor, we note that it is not necessary for the defendant to
establish that any particular label applies to a plaintiff’s relationship to an alleged
employer. It is rather the plaintiff’s burden to establish to the satisfaction of the
fact‐finder that he is an employee within the meaning of the statute. If he does
not, it does not matter how his status might be characterized.
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He nevertheless argues that the evidence was insufficient to permit the jury to
determine that he was not a Stony Brook employee and that the district “court
should have held as a matter of law that [he] was employed by Stony Brook.”
Appellant’s Br. at 21. That argument is barred by Unitherm. Indeed, in his reply
brief, Knight appears to abandon his sufficiency of the evidence challenge.
In any event, the argument is without merit. The evidence in the case
presented disputed issues of fact regarding several of the Reid factors, and the
balancing of those factors and others that pointed both in favor of and against
employee status also presented a disputed issue requiring resolution by the factfinder.
IV. Knight’s Evidentiary & Instructional Challenges
Finally, Knight challenges several of the district court’s evidentiary
rulings, as well as several of its other instructions to the jury. All of those
challenges, however, address issues that the jury was instructed not to decide
unless it first determined that Knight was Stony Brook’s employee. See LNC Invs.,
Inc. v. Nat’l Westminster Bank, N.J., 308 F.3d 169, 177 n.10 (2d Cir. 2002) (noting
that we presume that juries follow district court’s instructions). Because we
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identify no error that requires reversal of the jury’s finding that he was not an
employee, we need not reach those challenges.

Outcome: For the foregoing reasons, we AFFIRM the judgment of the district court.

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