                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-2113
JAMES D. SOLON,
                                               Plaintiff-Appellant,
                                 v.

LARRY S. KAPLAN, individually and as partner
in the firm of KAPLAN, BEGY & VON OHLEN;
ROBERT C. VON OHLEN, individually and as
partner in the firm of KAPLAN, BEGY & VOH OHLEN;
FRED C. BEGY, III, individually and as partner
in the firm of KAPLAN, BEGY & VOH OHLEN; et al.,
                                            Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 00 C 2888—Samuel Der-Yeghiayan, Judge.
                          ____________
 ARGUED DECEMBER 9, 2004—DECIDED FEBRUARY 15, 2005
                   ____________


  Before FLAUM, Chief Judge, and BAUER and WILLIAMS,
Circuit Judges.
  FLAUM, Chief Judge. James Solon filed this suit under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., alleging that his former law partners Larry Kaplan,
Robert von Ohlen, and Fred Begy terminated his interest in
their firm in retaliation for his opposition to sexual harass-
ment. The district court granted summary judgment in
favor of defendants, concluding inter alia that Kaplan was
2                                               No. 04-2113

not an “employee” as defined by 42 U.S.C. § 2000e-3(a) and
therefore not protected by Title VII. For the reasons stated
herein, we affirm.


                     I. Background
  On September 1, 1989, Solon joined the law firm of Adler,
Kaplan & Begy as a partner. The partnership agreement, as
amended January 1, 1993, named Solon as one of eight
general partners. It provided that each general partner
would fund an equal share of the firm’s capital interest, be
liable for an equal proportion of the firm’s debts, and have
an equal voice in the management of the firm and the
conduct of its business. The allocation of income among the
general partners, the need for additional capital contribu-
tions, and financial commitments in excess of $5,000 would
be decided by a majority vote of the general partners, with
each entitled to cast one vote. A two-thirds vote would be
required for amendments to the partnership agreement,
dissolution of the firm, or the involuntary termination of
any general partner. New general or special partners could
be brought into the firm only by unanimous vote. Special
partners would have no equity interest or voting rights, and
could be terminated by a simple majority vote of the general
partners.
  As a general partner, Solon paid a total of $50,000 in
capital contributions to the firm over the course of his
tenure. He received an allocated share of its income, at-
tended compensation meetings with the other general
partners, and was privy to daily cash reports and other
sensitive financial information. None of the special partners
or associates received these benefits.
  On December 31, 1994, three general partners voluntarily
left the firm. Solon drafted a separation agreement specify-
ing that he and four others would continue as general
partners under the terms of the 1993 partnership agree-
No. 04-2113                                                3

ment. The next day, the firm changed its name to Kaplan &
Begy, and plaintiff was named managing partner. In 1996,
another general partner departed, leaving Solon, Larry
Kaplan, Fred Begy, and Robert von Ohlen as the remaining
general partners. In 1997, von Ohlen was added as a named
partner and the firm became Kaplan, Begy & von Ohlen
(“KBV”). As of January 1, 1998, a total of twenty-one
lawyers, including general partners, special partners, and
associates, worked at the firm.
   As managing partner, Solon was the only general partner
authorized to draw on all of the firm’s bank accounts. He
signed checks in that capacity to pay rent and distribute
profits. He had extensive knowledge of KBV’s financial
condition, handled its relationship with LaSalle Bank, and
applied for and signed financing agreements as managing
partner. He also served as the point of contact with the
firm’s landlord and acted as trustee of the firm’s 401(k)
account. On January 18, 1998, Solon stepped down as
managing partner, but continued to direct some administra-
tive matters, signing a revolving letter of credit with
LaSalle Bank, and looking for new office space when the
firm’s lease expired.
  In August 1998, Kaplan and von Ohlen approached Begy
about their desire to terminate Solon’s interest as a general
partner. Over lunch one afternoon, the three agreed to
remove plaintiff as a general partner, but considered
allowing Solon to stay on as a salaried administrator or to
work for Begy as an independent contractor. In October,
Begy advised Solon of the partners’ decision to terminate
his interest as of December 31, 1998. Begy presented Solon
with the options of working as an administrator or an
independent contractor. Solon rejected these alternatives
and left the firm in January 1999.
  Solon contends that von Ohlen pressed for his ouster
because he had spoken out against von Ohlen’s alleged
4                                                No. 04-2113

sexual harassment of two of the firm’s secretaries. Kaplan
and von Ohlen assert that they wanted to remove Solon
from the partnership because they had lost confidence
in his legal, rainmaking, and administrative skills. They
state that von Ohlen never sexually harassed either
secretary, and that Solon could not have reasonably
believed to the contrary. Begy asks us to affirm on the
ground that Title VII does not protect Solon, and takes
no position regarding whether von Ohlen harbored retalia-
tory motives.
  Plaintiff filed this suit against the firm and von Ohlen,
Kaplan, and Begy individually. His amended complaint
alleges violations of Title VII, the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.,
and supplemental state-law claims. Begy, who was pushed
out of the partnership after Solon was removed, filed
cross-claims against von Ohlen, Kaplan, and the firm for
indemnification, partner indemnification, and a declaratory
judgment.
  The district court granted summary judgment in favor
of defendants on the Title VII and ADEA claims. It con-
cluded that: (i) Solon was an employer, not an employee,
and therefore was not protected by Title VII or the ADEA;
and (ii) plaintiff failed to establish a prima facie case under
either statute. The district court declined to exercise
supplemental jurisdiction over Solon’s state-law claims or
Begy’s cross-claims, and dismissed them without prejudice.
Solon appeals the grant of summary judgment as to his
Title VII claim only.


                      II. Discussion
  Summary judgment is appropriate where the evidence
demonstrates that “there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). We
review a district court’s grant of summary judgment de
No. 04-2113                                                5

novo, construing all facts and reasonable inferences in favor
of the non-moving party. Luckie v. Ameritech Corp., 389
F.3d 708, 713 (7th Cir. 2004).
   Section 704(a) of Title VII provides in relevant part that
“it shall be an unlawful employment practice for an em-
ployer to discriminate against any of his employ-
ees . . . because he has opposed any practice made an
unlawful employment practice by this subchapter.” 42
U.S.C. § 2000e-3(a). The parties agree, and we assume
without deciding, that Title VII does not protect em-
ployers against retaliation. See EEOC v. Severn Trent
Servs., Inc., 358 F.3d 438, 445 (7th Cir. 2004) (stating in
dicta that Title VII does not prohibit retaliation against
employers). Cf. Schmidt v. Ottawa Med. Ctr., 322 F.3d 461,
468 (7th Cir. 2003) (ADEA does not protect employers);
EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 698
(7th Cir. 2002) (same). Solon argues that the district court
erred in granting summary judgment, however, because
there are genuine factual disputes regarding whether he is
an employee rather than an employer, and whether he
established a prima facie case of retaliation. We agree
with the district court that Solon is an employer as a matter
of law, and do not reach the latter issue.
  Title VII defines “employee,” subject to exceptions not
relevant here, as “an individual employed by an employer.”
42 U.S.C. § 2000e(f). Recent Supreme Court precedent
sheds light on this circular definition. See Clackamas
Gastroenterology Assocs. v. Wells, 538 U.S. 440 (2003). In
Clackamas, the Court addressed whether shareholder-
directors of a professional corporation counted as “employ-
ees” towards the fifteen-employee threshold for covered
employers under the Americans with Disabilities Act of
1990 (“ADA”). Id. at 442; 42 U.S.C. § 12111(5). Because it
found the ADA’s definition of “employee” circular, the Court
looked to the common-law definition of the master-servant
relationship, focusing on the element of control. Clackamas,
6                                               No. 04-2113

538 U.S. at 448. It highlighted six non-exhaustive factors as
relevant to whether the shareholder-directors were employ-
ees:
    Whether the organization can hire or fire the individual
    or set the rules and regulations of the individual’s work
    Whether and, if so, to what extent the organization
    supervises the individual’s work
    Whether the individual reports to someone higher in
    the organization
    Whether and, if so, to what extent the individual is able
    to influence the organization
    Whether the parties intended that the individual be an
    employee, as expressed in written agreements or
    contracts
    Whether the individual shares in the profits, losses, and
    liabilities of the organization.
Id. at 449-50 (quoting 2 Equal Employment Opportunity
Commission Compliance Manual § 605:0009 (2000)).
“[W]hether a shareholder-director is an employee depends
on ‘all of the incidents of the relationship . . . with no one
factor being decisive.’ ” Id. at 451 (quoting Nationwide Mut.
Ins. Co. v. Darden, 503 U.S. 318, 324 (1992)).
  The factor test announced in Clackamas applies to this
case. Although the Court focused on the meaning of the
term “employee” under the ADA rather than Title VII, both
statutes define “employee” in nearly identical language. See
42 U.S.C. §§ 12111(4), 2000e(f) (both defining “employee,”
subject to exceptions not relevant here, as “an individual
employed by an employer”). The Court signaled that its
analysis would extend to Title VII cases by noting that it
was resolving a conflict among the Circuits that was “not
confined to the particulars of the ADA.” Clackamas, 538
U.S. at 444 n.3 (citing Title VII and ADEA cases as evi-
No. 04-2113                                                 7

dence of the split). Moreover, the framework is not limited
to the narrow question of whether a shareholder-director is
an employee. The six factors were selected because they
provided guidance in resolving the more general issue of
whether an individual “is an employee or, alternatively, the
kind of person that the common law would consider an
employer.” Id. at 445 n.5. Indeed, the source of the
factors—an EEOC compliance manual— identifies them as
relevant to whether “partners, officers, members of boards
of directors, and major shareholders qualify as employees.”
Id. at 449 (citing 2 EEOC Compliance Manual §§ 605:0008-
605:00010 (2000)). The Court also made clear that its test
would determine whether someone was an employee both
for purposes of the fifteen-employer threshold and in
deciding whether a plaintiff could bring a claim. See
Clackamas, 538 U.S. at 446 n.6. Cf. Schmidt, 322 F.3d at
464 (cited with approval in Clackamas, 538 U.S. at 446 n.6)
(holding one framework applicable to both questions). In
sum, the analysis presented in Clackamas applies to the
question presented here: whether a partner is an employee
entitled to sue for retaliation under Title VII.
  Turning to the facts of this case, no reasonable juror could
find that Solon was an employee of the firm. By 1998, Solon
was one of only four general partners. The partnership
agreement allowed for his involuntary termination only by
a two-thirds vote of the general partners, meaning that the
other three had to agree unanimously to remove him.
Holding one quarter of the voting power, Solon also exer-
cised substantial control over how to allocate the firm’s
profits, and whether to require additional capital contribu-
tions, make financial commitments, amend the partnership
agreement, and dissolve the firm. Because special or
general partners could be added to the firm only by a
unanimous vote of the existing general partners, Solon
possessed a unilateral veto power over new admissions. In
addition to his voting rights, Solon held an equity interest
8                                                No. 04-2113

in the firm, shared in its profits, attended partnership
meetings, and had access to private financial information.
Each of these benefits distinguished him from the firm’s
special partners and associates. Solon’s broad authority as
trustee of the firm’s 401(k) account and as its managing
partner also supports the conclusion that he was an
employer. And though he stepped down as managing
partner a few months before being voted out of the firm, he
continued to handle the firm’s banking needs and land-
lord/tenant issues.
   Solon maintains, nevertheless, that he was not an
employer because he exercised no real control as a gen-
eral partner or managing partner. Plaintiff asserts that
defendants ignored the partnership agreement so fre-
quently that it no longer had any legal effect, and that any
leverage conferred to him by the agreement was illusory.
Solon identifies two instances when defendants allegedly
failed to observe the terms of the agreement. First, plaintiff
contends that defendants should have held a formal
meeting to debate whether he would be removed from the
firm. Instead, defendants met over lunch without notifying
Solon, gave him no opportunity to defend himself, and never
officially voted for his ouster. In fact, Solon asserts that
only Kaplan and von Ohlen voted to remove him, while
Begy dissented.
  The partnership agreement, however, does not demand a
formal meeting, notice, or a hearing before removing
a general partner. Defendants’ decision to proceed infor-
mally is not evidence that the agreement had no legal
effect. Moreover, the evidence shows that Begy agreed to
remove Solon. In a January 13, 1999 memorandum written
by Solon, plaintiff recounts that Begy had notified him in an
October 1998 meeting “that the partners had decided
to terminate my equity interest in the firm,” and that
Begy had advised “that this decision had been reached after
a series of partnership meetings.” The memorandum states
No. 04-2113                                                 9

that Solon and Begy met again on December 23, 1998 and
January 12, 1999 to discuss the options of working as an
administrator or independent contractor. During those
meetings, Solon told Begy that the alternatives were
unworkable “given the earlier decision to terminate my
equity interest.” It is undisputed that Solon never called for
an official meeting to challenge his termination. Had Begy
dissented, he would not have repeatedly advised Solon that
the partners had terminated his interest, nor would
plaintiff have accepted the sentiments of only two of the
four general partners as final.
  Second, Solon asserts that defendants routinely ignored
the agreement when distributing firm profits. For example,
he alleges that he was barred from attending some end-of-
year partner compensation meetings. The record shows,
however, that Solon was excluded from only one compensa-
tion meeting that occurred in 1999, after he had been
terminated as a general partner and been divested of his
right to attend. Solon also testified during his deposition
that decisions made at compensation meetings that he
attended were sometimes later changed at informal meet-
ings in his absence. Nevertheless, plaintiff concedes that he
was given an opportunity to call for a meeting of all of the
general partners to revisit the issue. He did not request a
meeting because he believed he could not persuade the
others to change their minds. Neither example cited by
Solon is evidence that defendants ignored the partnership
agreement, much less did so routinely.
  Plaintiff also argues that he had no control over the firm
because he was supervised closely by the other partners,
who made all of the key decisions about how to staff cases,
bring in new business, and steer the firm without con-
sulting him. The record does not support this contention.
Solon had substantial control over the firm; control that
he exercised in fact as managing partner, and control that
10                                              No. 04-2113

he had the right to exert by virtue of the partnership
agreement. Plaintiff’s assertion that he consulted with his
fellow partners before making major decisions may demon-
strate that he was passive, but it does not show that he was
powerless. Nor does his contention that he was outvoted
undermine the conclusion that he was an employer. See
Schmidt, 322 F.3d at 476 (“[T]he mere fact that lately
[plaintiff’s] preferences on shareholder-compensation
proposals have not secured the majority opinion of his
fellow shareholders does not alter the fact that with each
vote he has exercised this right to control. Even though
[plaintiff] rejected the current plan because he would be
affected by its passage, he nevertheless had the opportunity
to participate in revising and voting on it.”).
  Plaintiff was one of four general partners who, by vir-
tue of his voting rights, substantially controlled the direc-
tion of the firm, his employment and compensation, and the
hiring, firing, and compensation of others. He played an
active role in the operation of the firm as trustee of its
401(k) account, as managing partner, and informally
thereafter. Under the facts of this case, he was an employer
as a matter of law.


                     III. Conclusion
  For the reasons stated herein, we AFFIRM the district
court’s grant of summary judgment.
No. 04-2113                                         11

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—2-15-05
