                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 15 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ANNE WAISGERBER,                                 No. 09-56131

              Plaintiff - Appellant,             D.C. No. 2:09-cv-03246-R-RC

  v.
                                                 MEMORANDUM*
CITY OF LOS ANGELES; SEAN KANE,
an individual, and in his official capacity,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                     Argued and Submitted December 6, 2010
                              Pasadena, California

Before: TROTT and WARDLAW, Circuit Judges, and BREWSTER, Senior
District Judge.**

       Anne Waisgerber appeals from the district court’s judgment dismissing with

prejudice her action alleging violations of 42 U.S.C. § 1983 and California state


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.
law against the City of Los Angeles and Captain Sean Kane of the Los Angeles

Police Department (LAPD). Waisgerber claims she was terminated from her

position as a volunteer LAPD Reserve Officer because she is a woman and because

she exercised her First Amendment rights in challenging a charge of neglect of

duty. Waisgerber’s attorney failed to oppose the motion to dismiss or to appear at

the hearing because she was dying of brain cancer. Neither the district court nor

the parties knew about the attorney’s fatal illness. The district court properly

dismissed Waisgerber’s First Amended Complaint. We determine, however, that it

is possible the complaint can be saved by amendment. We therefore affirm in part,

reverse in part, and remand with instructions to allow Waisgerber to file a Second

Amended Complaint.

      To state a valid claim under § 1983 for sex discrimination, Waisgerber must

be protected by Title VII of the Civil Rights Act of 1964. See Crumpton v. Gates,

947 F.2d 1418, 1420 (9th Cir. 1991). Title VII prohibits employers from

discriminating against employees on the basis of sex. 42 U.S.C. §§ 2000e-2.

“[T]here must be some connection with an employment relationship for Title VII

protections to apply,” although that connection “need not necessarily be direct.”

Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir. 1980). Because

Title VII defines “employee” in a “circular manner,” Murray v. Principal Financial


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Group, 613 F.3d 943, 945 (9th Cir. 2010), we apply the general common law of

agency to determine whether a person is an employee. Cmty. for Creative Non-

Violence v. Reid, 490 U.S. 730, 739-40 (1989).

      We have previously considered whether an unpaid volunteer can meet the

definition of “employee” as used in the Americans with Disabilities Act and the

Age Discrimination in Employment Act. In Fichman v. Media Center, 512 F.3d

1157, 1158 (9th Cir. 2008), we held that the directors of the board of a non-profit

organization were not employees. One of the factors we considered in our analysis

was the directors’ lack of compensation:

               Media Center does not hire or fire its directors: the Board
               selects its own members. The directors each have
               full-time jobs independent of Media Center, and are not
               compensated by Media Center. Neither the travel
               reimbursement nor the food supplied at Board meetings
               rises to the level of compensation. The personal
               satisfaction and professional status several directors
               reported gaining from their positions with Media Center
               are typical benefits of volunteer work.

Id. at 1160.

      The lack of remuneration was not dispositive, however. We also considered

evidence that the directors

               do not share in the day-to-day responsibilities of Media
               Center staff, but rather spend approximately two to four
               hours a month on Media Center work. The Board is


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              governed by bylaws that the Board itself adopts. The
              Board generally operates as a democracy. That the Board
              has created a system of self-governance does not place
              any individual director in the position of subservience
              contemplated by the conventional master-servant
              relationship.

Id. at 1160-61. As evidenced by our discussion in Fichman, the fact that a person

is not paid a salary does not necessarily foreclose the possibility that the person is

an “employee” for purposes of federal statutes, including Title VII. See id. at 1161

(“Most courts consider the definition of ‘employee’ to be uniform under federal

statutes where it is not specifically defined . . . .”).

       Other circuits have taken a similar approach. See, e.g., United States v. City

of New York, 359 F.3d 83, 92 (2d Cir. 2004) (“[R]emuneration need not be a

salary, but must consist of substantial benefits not merely incidental to the activity

performed”) (internal citation and quotation marks omitted); Pietras v. Bd. of Fire

Comm’rs of the Farmingville Fire Dist., 180 F.3d 468, 471-73 (2d Cir. 1999)

(holding that an unpaid firefighter was an employee under Title VII because she

received a retirement pension, life insurance, death benefits, disability insurance,

and limited medical benefits); Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6

F.3d 211, 221-22 (4th Cir. 1993) (finding Title VII coverage of a volunteer

firefighter to be a disputed issue of fact where volunteer received death and



                                             4
disability benefits, scholarships for dependent children upon death in the line of

duty, life insurance, and certain tax-exemptions); cf. Jacob-Mua v. Veneman, 289

F.3d 517, 521 (8th Cir. 2002) (holding that an unpaid volunteer researcher was not

an employee under Title VII because she did not receive annual or sick leave,

retirement benefits, or insurance benefits).

      Like Title VII, California’s Fair Employment and Housing Act (FEHA)

protects employees from sex discrimination. Cal. Gov’t Code § 12940(a). The

California Court of Appeal has held that a person can be an employee under FEHA

as long as the person receives some form of compensation, although it can be

“substantial benefits” rather than a paycheck. Mendoza v. Town of Ross, 27 Cal.

Rptr. 3d 452, 460 (Ct. App. 2005) (citing City of New York, 359 F.3d at 92).

      It is possible Waisgerber can amend her complaint to allege the “substantial

benefits” necessary to make her an employee under Title VII or FEHA. For the

same reason, an amendment could save her claim under California Labor Code

§ 1102.5, which protects employees from retaliatory termination. Although the

Los Angeles Administrative Code states that reserve officers are not “employees,”

a city code’s label cannot trump a state statute.

      Waisgerber’s remaining claims are not futile as a matter of law. Her due

process claims may be viable if she is entitled to certain benefits stemming from


                                           5
her position as a reserve officer, Portman v. County of Santa Clara, 995 F.2d 898,

906 (9th Cir. 1993), or if the LAPD’s charge against her is “sufficiently serious to

stigmatize or otherwise burden [her] so that [she] is not able to take advantage of

other employment opportunities,” id. at 907 (internal quotation marks omitted).

Waisgerber can state a retaliation claim under the First Amendment if she was

terminated for speaking on a matter of public concern, rather than an internal

personnel matter. See Gibson v. Office of the Attorney General, 561 F.3d 920, 925

(9th Cir. 2009). Finally, if given the opportunity, Waisgerber might be able to

allege facts sufficient to support her emotional distress claim.

      Given the record in this case, as well as the extraordinary and tragic

circumstances presented, we conclude upon de novo review that the First Amended

Complaint might be saved by amendment. See Thinket Ink Info. Res., Inc. v. Sun

Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (discussing the standard

of review of a dismissal without leave to amend). We therefore remand to the

district court for further proceedings consistent with this decision.

      AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

        Each party shall bear its own costs.




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