                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAY 14 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 BRENDA WEST-ANDERSON,

                  Plaintiff-Appellant,                   No. 02-3318
                                                  (D.C. No. 01-CV-2373-JWL)
 v.                                                        (D. Kan.)

 CHOICEPOINT SERVICES, INC.,

                  Defendant-Appellee.


                               ORDER AND JUDGMENT


Before TACHA , Chief Judge, HARTZ , and O’BRIEN , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.
         Plaintiff-appellant Brenda West-Anderson, appearing pro se, appeals

from the district court’s order granting summary judgment in favor of

Defendant-appellee Choicepoint Services, Inc. (Choicepoint) on her racial

discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e to 2000e-17. Our jurisdiction arises under 28 U.S.C. § 1291.

We affirm.

         “We review a grant of summary judgment de novo, applying the same

standard as the district court.”   Ferroni v. Teamsters, Chauffeurs &

Warehousemen Local No. 222 , 297 F.3d 1146, 1149 (10th Cir. 2002). “Summary

judgment is appropriate if, viewing the evidence in the light most favorable to the

nonmoving party, there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law.”         Id. “While [Plaintiff’s] pro se

pleadings are to be construed liberally and held to a less stringent standard than

formal pleadings drafted by lawyers, [she] must nonetheless set forth sufficient

facts to support [her] claims.”    Diaz v. Paul J. Kennedy Law Firm        , 289 F.3d 671,

674 (10th Cir. 2002). Summary judgment is appropriate when a jury trial would

serve no purpose. In this case the district court ruled that there was no need for a

trial because any reasonable jury, if properly instructed by the judge on what the

law is, would decide that Plaintiff was not an employee of Choicepoint. We

agree.


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       Under Title VII, it is “an unlawful employment practice for an

employer . . . to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). An employer is defined as

“a person engaged in an industry affecting commerce who has fifteen or more

employees . . . .”   Id. § 2000e(b). An employee, in turn, is defined as “an

individual employed by an employer . . . .”         Id. § 2000e(f).

       Given this statutory framework, “[i]n order to establish a prima facie case

under Title VII, [Plaintiff] was required to prove, among other things, that

[Choicepoint] was her employer.”      Lockard v. Pizza Hut, Inc. , 162 F.3d 1062,

1069 (10th Cir. 1998). As the district court concluded, to determine whether

Plaintiff made a prima facie showing that Choicepoint was her employer, the

evidence in the record must be examined under the “hybrid” common-law

economic-realities test.   See R., Vol. II, Doc. 89 at 7 (citing      Lambertsen v. Utah

Dep’t of Corr. , 79 F.3d 1024, 1028 (10th Cir. 1996)). Moreover, because the

purpose of the hybrid test is to distinguish an employee from an independent

contractor, see Bristol v. Bd. of County Comm’rs of County of Clear Creek          ,

312 F.3d 1213, 1217 (10th Cir. 2002) (en banc), the main focus of the inquiry is

“‘the employer’s right to control the means and manner of the worker’s

performance.’” R., Vol. II, Doc. 89 at 7 (quoting         Oestman v. Nat’l Farmers


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Union Ins. Co. , 958 F.2d 303, 305 (10th Cir. 1992) (further quotation omitted));

accord Lambertsen , 79 F.3d at 1028.

       The relevant facts pertaining to the working relationship between Plaintiff

and Choicepoint are set forth in the memorandum and order entered by the district

court on July 23, 2002.     See R., Vol. II, Doc. 89 at 2-4. The district court

concluded that the uncontroverted facts in the record established, as a matter of

law, that Plaintiff was an independent contractor of Choicepoint, and not an

employee. Id. at 8-11. As a result, the district court determined that Plaintiff was

not entitled to the protections of Title VII.         Id. at 6.

       We agree with the district court’s analysis. We further note that the

arguments asserted by Plaintiff on appeal are without merit. First, although

Plaintiff admits that she was initially an independent contractor, she claims that

Choicepoint “unilaterally converted” her status to that of an employee by

subsequently directing her to perform work that was different, both in terms of

scope and compensation, from the work contemplated by the parties’ June 12,

1997, written contract. Specifically, Plaintiff alleges that (1) Choicepoint

directed her to perform projects in geographical areas different from the areas

agreed to in the parties’ contract; and (2) she was paid a higher hourly rate than

the rate agreed to in the parties’ contract.      See Aplt. Br. at 5-7. We fail to see

why those changes would mean that she became an employee. As the district


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court concluded, even if we accept her allegations as true, this evidence had no

bearing “on [Choicepoint’s] right to control the manner and means of [P]laintiff’s

work performance, nor does it bear on any of the other factors relevant to the

application of the hybrid test.” R., Vol. II, Doc. 89 at 11.

       Second, in her reply brief, Plaintiff makes a number of arguments based on

information and documents she obtained, either from Choicepoint in discovery or

through her own research, pertaining to the corporate relationship between

Choicepoint’s parent company and its predecessor. “This court does not

ordinarily review issues raised for the first time in a reply brief,”   Stump v. Gates ,

211 F.3d 527, 533 (10th Cir. 2000), and Plaintiff has failed to provide us with a

sufficient reason for departing from this rule here. In any event, none of her

arguments is relevant to the issue of whether she was an employee rather than an

independent contractor.

       For substantially the same reasons stated in the district court’s

memorandum and order, we AFFIRM.


                                                           Entered for the Court


                                                           Harris L Hartz
                                                           Circuit Judge




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