

                 UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 96-2251

                       MARGARITA SERAPION,

                      Plaintiff, Appellant,

                               v.

                    FRED H. MARTINEZ, ET AL.,

                     Defendants, Appellees.

                                             

          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Salvador E. Casellas, U.S. District Judge]

                                             

                             Before

                      Selya, Circuit Judge,

             Coffin and Cyr, Senior Circuit Judges.

                                             

     Judith                      Berkan,                             with                                  whom                                       Mary Jo Mendez and Rosalinda Pesquera
were on brief, for appellant.
     Graciela J. Belaval,  with whom Alvaro R. Calderon, Jr.  and
Martinez, Odell &amp; Calabria were on brief, for appellees.

                                             

                          July 18, 1997

                                             

          SELYA,                           Circuit                                  Judge                                      .                                                                                                                          This appeal requires us to explore

a gray area in the emerging jurisprudence of Title VII, 42 U.S.C.

SS 2000e  to 2000e-17  (1994).   Having completed  that task,  we

conclude                   that                       while                             Title VII's employment-related shelter might in

certain                  circumstances extend to a person who is a partner in a law

firm,                plaintiff-appellant                                  Margarita Serapion, a partner in the now-

disbanded law  firm of Martinez,  Odell, Calabria  &amp; Sierra  (the

Firm), is  not entitled to such  shelter here.  Consequently,  we

affirm  the  lower  court's entry  of  summary  judgment  in  the

defendants' favor.

          In  explaining  our  rationale,  we  take  a   slightly

unorthodox course.   We  begin with the  facts, then  shift to  a

discussion                     of the statutory scheme, and then resume our historical

account                  by                    describing                               the course of the litigation.  In succession,

we thereafter  rehearse the summary  judgment standard, limn  the

doctrinal parameters of the requisite Title VII inquiry,  address

the merits,  iron out  a  procedural wrinkle,  and at  long  last

conclude.

I.  THE FACTUAL PREDICATE

          Serapion                             earned                                   a                                     distinguished reputation as a certified

public accountant  before  deciding  to switch  careers.    After

graduating from  the University of  Puerto Rico  Law School  with

honors in  1982, she joined  the San Juan  law firm of  Colorado,

Martinez, Odell, Calabria &amp; Sierra as an associate.  She left  in

1983 for a stint in government service but returned in 1985.   In

the interim,  Colorado had departed and the partnership had  been

                                2

reconstituted.  Approximately one  year later, the appellant  was

  mitted                                                        a

 non-proprietary"                            partner          ad       into the Firm as a "junior" partner (sometimes termed            "                      ).  While this status did not give her any

equity position, it  did give her some profit distribution  units

(PDUs)               1                                  and                      enabled her to participate in meetings of the Board of

Partners (a  body which comprised  all the  partners, senior  and

junior   in the aggregate, roughly half the Firm's lawyers    and

which  had  the   ultimate  responsibility  for  management   and

policymaking).

          In 1990, Serapion became what is variously described as

a "senior" or "proprietary" partner.  Theretofore the Firm's four

name               partners                       (all                            males) were the only other proprietary partners.

They               enjoyed                       equality among themselves in respect to compensation,

PDUs, benefits, and  equity, and they promised Serapion that  she

would be elevated to an equal partnership in three years.  In the

meantime,                    her                        status                              as                                 a proprietary partner brought about several

changes in  her working  conditions:   she received  a 4%  equity

interest in the Firm (ceded 1% by each name partner); she assumed

pro  rata liability  for  the  Firm's debts,  losses,  and  other

obligations;  and she  became a  voting member  of the  Executive

     1Each partner received an allotment of PDUs,  and the Firm's
profits                  were                      distributed                                  periodically to the partners in proportion
to             the                 number                       of                          PDUs                               which each partner held.  These distributions
were over and above the recipients' base salaries.  At all  times
material  hereto, the name  partners held 100  PDUs apiece.   The
junior partners held varying amounts, ranging from 20 to 45  PDUs
apiece.

                                3

Committee                    (a                      five-member                                  group which was responsible for the Firm's

day-to-day management).  When the appellant became a  proprietary

partner, the Firm increased  her allocation of PDUs to 75  units.

Concomitantly                      , she began reaping a correspondingly larger share of

the Firm's profits.  Under  the terms of the 1990 agreement,  her

allotment                    of                       PDUs                           (and,                                 therefore, her share of the profits) was to

continue                   to                      rise in increments until the end of 1992 when Serapion

would achieve full parity with the four name partners.

          Despite these emoluments, Serapion was not on an  equal

footing                  with                       the name partners.  Each of them had a greater equity

interest (24% apiece) and a more munificent compensation  package

(roughly one-third  higher than hers  in 1990,  although the  gap

gradually                    closed).  The difference in compensation was largely, if

not entirely,  a function of  the disparate  allocation of  PDUs.

Still, although her allotment of  PDUs was less than that of  the

name partners, it was nonetheless significantly greater than that

of even the most well-endowed junior partner.

          Serapion alleges  that three of  her partners (Fred  H.

Martinez, Lawrence Odell, and Jose Luis Calabria) never  intended

that a  woman would  achieve parity.   These partners, she  says,

connived to prevent her  from reaping the fruits of her  bargain,

eventually demanding that she sign an agreement which would  have

significantly diminished  her authority  within the  Firm.   When

Serapion                   stood her ground, the trio caused the Firm to dissolve in

1992 (shortly  before the expiration  of the three-year  phase-in

period)  and  simultaneously  forged  a  new  partnership  called

                                4

"Martinez,                     Odell &amp; Calabria."  The nascent firm included the three

men,               as                  well                       as                         most                              of                                 the Firm's other lawyers.  The founders did

not invite either Serapion  or Sierra (the remaining  proprietary

partner) to join.

II.  THE STATUTORY SCHEME

          We                       pause                             at                                this juncture to sketch the legal landscape.

Title VII is one of the brightest stars in the firmament of  this

nation's antidiscrimination laws.   Generally  speaking, it  bars

certain  employment-related actions  undertaken on  the basis  of

impermissible                       criteria (such as gender).  See, e.g., Smith v. F.W.

Morse &amp; Co., 76 F.3d 413, 420 (1st Cir. 1996).  In relevant part,

Title VII provides:

               It  shall  be  an  unlawful   employment
          practice for an employer  
                    (1) to fail or refuse to hire or to
          discharge  any individual,  or  otherwise  to
          discriminate  against  any  individual   with
          respect   to    his   compensation,    terms,
          conditions,  or  privileges  of   employment,
          because  of such  individual's  race,  color,
          religion, sex, or national origin.

42 U.S.C. S 2000e-2(a)(1).

          The Firm is plainly an employer for Title VII purposes.

After all, an employer is defined by statute as "a person engaged

in an industry  affecting commerce," and the statute makes  clear

that               "a                  person" in this context can include a partnership.  Id. at

S 2000e(a)-(b).  The rub is whether Serapion is an employee.

          Although the  language we  have quoted  speaks of  "any

individual," courts long ago concluded that Title VII is directed

at, and only  protects, employees and potential employees.   See,

                                5

e.g.             ,                Vera-Lozano                                                    v.                              Inte                                 rnational Broad., 50 F.3d 67, 69 (1st Cir.

1995); Broussard v. L. H. Bossier, Inc., 789 F.2d 1158, 1159 (5th

Cir.               1986);                      s                      ee generally Keyes v. Secretary of the Navy, 853 F.2d

1016,                1026                     (1st                         Cir.                              1988) (noting that "Title VII does not presume

to             obliterate all manner of inequity").  We know, moreover, that a

single individual in a single occupational setting cannot be both

an             employer                      and an employee for purposes of Title VII.  See, e.g.,

Devine v. Stone, Leyton &amp; Gershman, P.C., 100 F.3d 78, 80-81 (8th

Cir. 1996), cert. denied, 117 S. Ct. 1694 (1997); EEOC v. Dowd  &amp;

Dowd,                Ltd.,                     736                         F.2d                              1177, 1178 (7th Cir. 1984); Johnson v. Cooper,

Deans &amp; Cargill, 884 F. Supp. 43, 44 (D.N.H. 1994).  Even so, the

parameters of the term "employee" have proven elusive.  Title VII

defines  an  employee  only as  "an  individual  employed  by  an

employer,"                     42 U.S.C. S 2000e(f), a turn of phrase which chases its

own tail.  See Broussard,  789 F.2d at 1160; see also  Nationwide

Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (terming nearly

identical language  in the ERISA  statute, 29  U.S.C. S  1002(6),

"completely circular").

          Given                          the                             unhelpful                                       nature of the supplied definition, we

are  compelled   to  look   for  assistance   in  other   federal

antidiscrimination statutes that  contain similar definitions  of

"employee," such  as  the Age  Discrimination in  Employment  Act

(ADEA), 29 U.S.C. SS 621-634 (1994), the Employee Retirement  and

Income                 Security                         Act                             (ERISA), 29 U.S.C. SS 1001-1461 (1994), and the

Fair Labor Standards Act (FLSA), 29 U.S.C. SS 201-219 (1994).  We

regard Title VII, ADEA, ERISA, and FLSA as standing in pari passu

                                6

and  endorse  the   practice  of  treating  judicial   precedents

interpreting                       one                          such                               statute as instructive in decisions involving

another.                                       See                      , e.g., Oscar Mayer &amp; Co. v. Evans, 441 U.S. 750, 756

(1979); Lorillard v. Pons,  434 U.S. 575, 584 (1978); Wheeler  v.

Hurdman, 825 F.2d 257, 263 (10th Cir. 1987); Hyland v. New  Haven

Radiology Assocs., 794 F.2d 793, 796 (2d Cir. 1986).

          Of course,  we  are not  remitted solely  to  statutory

parallels.  There is a developing jurisprudence under Title  VII.

In it,  we detect  precedential  value not  only in  cases  which

actually involve partnerships, but  also in decisions which  have

determined the status of individuals by analogy to a  partnership

paradigm (even though the individuals involved were principals of

entities                   other than partnerships).  See, e.g., Devine, 100 F.3d at

80-81; Fountain v. Metcalf, Zima &amp; Co., 925 F.2d 1398,  1399-1401

(11th Cir. 1991).  We do  not, however, hitch our wagon to  cases

deciding                   whether a particular individual is an employee as opposed

to an independent contractor.  That distinction is between  those

who are part of an employer's business and those who are  running

their own businesses, and the factors central to that inquiry are

inapposite here.  See Wheeler, 825 F.2d at 271-72.

          There are  also a few  cases which  deal directly  with

whether                  a                    partner in a professional practice should be regarded as

an             employee                      for the purpose of Title VII (and, therefore, entitled

to its safeguards).  The  seminal case is Burke v. Friedman,  556

F.2d 867, 869-70  (7th Cir. 1977), in  which the court held  that

partners in an accounting firm were not employees vis-a-vis Title

                                7

VII.  This interpretation received a modicum of support in Hishon

v.             King                  &amp;                    Spalding, 467 U.S. 69 (1984).  Although the Hishon Court

answered                   a                     different question   holding that Title VII precluded a

law              firm                   from denying partnership consideration to an associate on

the basis  of her  gender, see  id.  at 76-78     Justice  Powell

cautioned that  the majority opinion  did "not  require that  the

relationship among partners  be characterized as an  `employment'

relationship to which Title VII would apply."  Id. at 79 (Powell,

J., concurring).   Since  Hishon, several  appellate courts  have

followed                   Justice Powell's lead and declared, with varying nuances,

that  partners  are not  protected  as  employees  under  federal

antidiscrimination laws.  See Simpson v. Ernst &amp; Young, 100  F.3d

436, 443 (6th Cir. 1996),  cert. denied, 117 S. Ct. 1862  (1997);

Wheeler, 825 F.2d at 263; accord EEOC Decision No. 85-4, 2  Empl.

Prac. Guide (CCH) q 6846, at 7040-41 &amp; n.4 (1985).

          As  we  visualize  it, the  key  inquiry  is  into  the

attributes of the relationship between the partnership and  those

whom               it                  styles                        as                           partners.  The method by which this inquiry is to

be conducted     how  a court  determines whether  an  individual

labelled                   as                      a partner is to be treated as an employee for purposes

of Title VII   is an unresolved issue which lies at the epicenter

of this appeal.

III.  THE LITIGATION

          When                         her                             three                                  former                                         partners folded the Firm and dashed

her expectations  of proprietary parity,  Serapion sued them  and

their  new firm  (Martinez, Odell  &amp; Calabria)  in Puerto  Rico's

                                8

federal district  court.  She charged  in her complaint that  the

defendants had violated both Title VII and local law.  After  the

defendants'                      early                           attempt to obtain summary judgment misfired,2 the

parties                  engaged in pretrial discovery.  Thereafter, the defendants

renewed their  quest for brevis  disposition.   Their new  motion

relied on  alternative grounds.  It  averred that Serapion, as  a

partner in the Firm, was not an employee (and, therefore, had  no

recourse to Title  VII).  It also  averred that Serapion had  not

adduced                  any                     competent                               proof that gender-based discrimination caused

the              Firm's                    disintegration (an event which the defendants attributed

to  irreconcilable differences  between two  warring factions  of

proprietary partners).

          Judge Casellas granted the defendants' motion,  holding

that Serapion was not an employee as that term had been developed

in federal jurisprudence and that she was thus ineligible for the

prophylaxis of Title VII.  See Serapion v. Martinez, 942 F. Supp.

80, 84-85  (D.P.R.  1996).   The  court held  alternatively  that

Serapion  had  failed  to   make  out  a  prima  facie  case   of

discrimination under Title VII.  See id. at 85-87.  Finally,  the

court  refused to  exercise  supplemental jurisdiction  over  the

pendent claim and  dismissed that claim without prejudice to  its

pursuit in  the courts of Puerto Rico.   See id. at 88-89.   This

appeal followed.

     2When the defendants filed their initial motion  for summary
judgment,                    Chief Judge Cerezo denied it.  The case was subsequently
transferred                      to                        Judge                              Casellas' calendar as part of a redistribution
of cases ancillary to his assumption of judicial office.

                                9

IV.  THE SUMMARY JUDGMENT STANDARD

          While the origins of the summary judgment standard  may

have been important in the distant past, modern federal  practice

has reached a point at which the standard has achieved aphoristic

acceptance, rendering  the  attribution  of  specific  authorship

superfluous.  We thus present the standard without particularized

citation,                    referring                             readers interested in further exposition to the

long litany of decisions that have placed a gloss on the language

of Fed. R.  Civ. P. 56(c).   See McCarthy v. Northwest  Airlines,

Inc.             ,                56                   F.3d                       313,                            315                                (1st Cir. 1995) (collecting cases); Coyne v.

Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995) (same).

          Summary judgment  is a means  of determining whether  a

trial is actually required.  It is appropriately granted when the

record                 shows                       that                           no                              genuine issue of material fact exists and that

the              moving                     party                          is                             entitled to judgment as a matter of law.  Thus,

in             order                   to                      defeat a properly crafted summary judgment motion, the

party opposing it must demonstrate that a trialworthy issue looms

as to a  fact which could potentially  affect the outcome of  the

suit.

          A trial or appellate court considering the merits of  a

summary judgment initiative  must peruse the record in the  light

most favorable to the  nonmovant.  While this equation must  take

into account all properly documented facts, the court may  ignore

unsupported  conclusions,   rank  speculation,  and   opprobrious

epithets.  If the evidence, so viewed, reveals a genuine  dispute

over  a material  fact    that  is, if  a reasonable  factfinder,

                               10

examining                    the                       evidence                                and drawing all reasonable inferences in the

required manner,  could resolve  a factual  controversy which  is

critical                   to                      the                         outcome                                 of the case in favor of the nonmoving party

  then summary judgment will not lie.

          Where,  as here,  the  district  court  enters  summary

judgment, we review its ruling de novo.

V.  THE DOCTRINAL PARAMETERS

          Putting this appeal into proper perspective requires us

to             articulate                       the                           doctrinal parameters which inform an inquiry into

a partner's status vis-a-vis Title VII.  We divide our discussion

into two segments.

                               A.

          Partnerships                                 are                                    mutable                                            structures, and partners come in

varying shapes and sizes.  Consequently, attempting to  delineate

the              circumstances in which a particular partner should be regarded

as             an                employee                        for                            Title                                  VII purposes is tricky business.  Although

one court has hinted at the desirability of a per se rule, saying

in effect that all members of professional services  corporations

were               employees for purposes of the antidiscrimination laws (there,

the              ADEA),                     no                       matter                              how                                  significant a role they played in managing

the              affairs                      of                        the                            corporation, see Hyland, 794 F.2d at 797-98,3 we

reject the  notion that  labels can  conclusively resolve  status

inquiries.  We hold instead that the Title VII question cannot be

     3We  note that the Second Circuit appears to have  retreated
somewhat                   from                       this                            position.   See EEOC v. Johnson &amp; Higgins, Inc.,
91             F.3d                  1529, 1538-39 (2d Cir. 1996), petition for cert. filed, 65
U.S.L.W. 3755 (U.S. May 1, 1997) (No. 96-1743).

                               11

decided                  solely on the basis that a partnership calls   or declines

to call     a person  a partner.   A court must peer beneath  the

label  and    probe the  actual  circumstances  of  the  person's

relationship                       with the partnership.  See Devine, 100 F.3d at 80-81;

Fountain                 ,                    925 F.2d at 1400-01; see also Hishon, 467 U.S. at 79 n.2

(Powell,                   J.,                      concurring)                                  ("Of course, an employer may not evade the

strictures  of Title  VII simply  by labelling  its employees  as

`partners.'"); see generally Board  of Trade v. Hammond  Elevator

Co.            ,               198                   U.S. 424, 437-38 (1905) (holding that the manner in which

the parties to  an agreement designate their relationship is  not

controlling).    In  other  words,  partnerships  cannot  exclude

individuals                      from                          the                              protection of Title VII simply by draping them

in grandiose titles which convey little or no substance.

          In our judgment,  the correct course is to undertake  a

case-by-case analysis aimed at determining whether an  individual

described                    as                       a                        partner                                actually bears a close enough resemblance to

an employee  to be afforded  the protections of  Title VII.   See

Strother                                    v.                      S                      outhern Cal. Permanente Med. Group, 79 F.3d 859, 867-

68 (9th Cir. 1996) (reversing grant of summary judgment where the

trial                court                      based its status determination principally on the fact

that               the                   plaintiff                            was                                called a partner); see also Devine, 100 F.3d

at 81  (holding,  in a  case  involving a  professional  services

corporation,                       that a court should not treat either the individual's

title                or                   the                      entity                             form                                  as determinative).  After all, form should

not be permitted  to triumph over substance when important  civil

rights are at stake.

                               12

          We also reject a variation on the per se theme advanced

by the appellant.  She asseverates that, due to the peculiarities

of Puerto Rico's civil law structure, all partners in all  Puerto

Rico partnerships  must be considered  employees for purposes  of

Title                VII.                                           In a civil law system, this theory goes, a partnership

is not  merely a  banding together of  individual partners but  a

separate                   entity                         which                               must itself be considered the employer of all

the individual partners.

          We need not  delve too deeply  into the hotly  disputed

question                   of                      whether the appellant's construct is sound as a matter

of Puerto  Rico law.   It  is enough  for our  purposes that  the

construct is unsound as a  matter of federal law.  The  appellant

cites no apposite  authority for the  novel proposition that  the

status of an individual under Title VII should vary depending  on

the              law                  of                     the state in which a partnership entity is chartered or

in which a  claim arises.   We think  that the  reverse is  true:

whether an individual is an employee for purposes of Title VII is

a matter of federal law,  and the question must be answered  with

reference                    to                      principles                                 of federal law.  Accord Broussard, 789 F.2d

at             1159-60;                      C                      obb v. Sun Papers, Inc., 673 F.2d 337, 339 (11th Cir.

1982); Lambertsen v. Utah Dep't of Corrections, 922 F. Supp. 533,

536 (D. Utah 1995), aff'd, 79 F.3d 1024 (10th Cir. 1996).4   This

determination                        is                          grounded in both Supreme Court case law and strong

federal policies of uniformity and fairness.

                                                       4               The                    Bro                      ussard decision is of particular interest because the
claim  which  was  considered  there  arose  in  Louisiana      a
jurisdiction which, like Puerto Rico, has a civil law tradition.

                               13

          In                       Robinson                                                              v  Shell Oil Co., 117 S. Ct. 843 (1997), the

Court  decided  that   the  word  "employee,"  as  used  in   the

antiretaliation section  of Title  VII, 42  U.S.C. S  2000e-3(a),

included                   former as well as current employees.  See id. at 849.  In

          this issue, the Court ignored state law,  concentratin                                .           resolving                                                       g

instead on the statute itself and on federal jurisprudence.   See

id. at 846-48.  The Court  took a similar approach in Walters  v.

Metropolitan Educ. Enters., Inc., 117 S. Ct. 660, 663-66  (1997),

resolving the scope of the words "employee" and "employer"  under

Title VII by  reference solely to  federal statutes and  judicial

opinions.                                         So, too, in Darden, 503 U.S. at 322-23 &amp; n.3, the Court

determined the  meaning  of "employee"  under ERISA  through  the

application of established  common law principles (rejecting  the

idea that the term incorporated the law of any particular state).

          These  cases are  merely specific  applications of  the

widely                 accepted principle that, in the absence of plain indication

of  a  contrary   intent,  courts  ought  to  presume  that   the

interpretation of a  federal statute is not dependent upon  state

law.             5                                               See                   ,                      e.g.                        ,                           Mississ                                 ippi Band of Choctaw Indians v. Holyfield,

490 U.S. 30, 43 (1989); Dickerson v. New Banner Inst., Inc.,  460

U.S.               103,                    119                       (1983);                               Uni                                 ted States v. De Luca, 17 F.3d 6, 8-9 (1st

Cir. 1994).

                                                       5               We                   are                       unimpressed by the appellant's attempted analogy to a
line of cases involving the federal tax laws.   See, e.g., Morgan
v.             Commission                      er, 309 U.S. 78 (1940).  The appellant has not called
to our  attention any  court which  has accepted  those cases  as
persuasive in  the Title VII  context, and we  decline to be  the
first.

                               14

          Our                        refusal                                to give state law controlling weight on this

question                   not                       only comports with the case law but also makes common

sense.  Linking status determinations to local law would make  an

important  federal statute  mean  different things  in  different

states.  This sort  of checkerboarding would undermine  Congress'

easily                 discerned intent that Title VII stand as a national code of

conduct in  the struggle to ensure  equality of treatment in  the

workplace.  See  110 Cong. Rec. 13,088-13,091 (1964).   Moreover,

since                the                    United                          States                                 is home to in excess of 1,000,000 operating

partnerships, numbering over 13,000,000 individual partners,  see

U.S. Bureau  of the Census,  Statistical Abstract  of the  United

States 535 (116th ed. 1996), relegating status determinations  to

local  law  would   create  enormous  confusion  and   widespread

uncertainty.

          In regard to Title VII, there is no basis for departing

from the precept that "federal statutes are generally intended to

have               uniform                       nationwide application,"  Mississippi Band of Choctaw

Indians                ,                   490                       U.S. at 43, and there is every reason for adhering to

it.   Here,  moreover, the  possibility  that defining  the  term

"employee"                     by reference to local law would open the door for state

legislatures to adopt restrictive definitions and thereby  defeat

Title                VII's                      broad remedial purposes militates strongly in favor of

a uniform national standard.  Cf. United States v. Kimbell Foods,

Inc.             ,                440                    U.S. 715, 728 (1979) (suggesting that, in cases in which

the  application  of  state  law  would  frustrate  the  specific

objectives                     of                        a                         federal                                 program, establishing uniform federal rules

                               15

is appropriate).   Thus,  we hold that  the meaning  of the  term

"employee," as that  term is used in  Title VII, must be  derived

through  an analysis  of federal  statutes, legislative  history,

judicial                   decisions, and common law understandings, not through the

law of Puerto Rico.

                               B.

          Having                           determined that federal law controls the question

of the appellant's status, we  turn next to an analysis of  those

attributes                     of                       a                         partner's relationship to the partnership which may

influence the decisional calculus.   In this endeavor, we do  not

write on a pristine page.  Two other courts of appeals have tried

their                hands                      at plotting the line which divides partners who may be

treated                  as                    employees                              under federal antidiscrimination statutes from

those who may not.

          In Simpson, the Sixth Circuit considered the status for

ADEA  purposes of  an  individual  denominated a  partner  by  an

international                       accounting firm.  In attempting to ascertain whether

the plaintiff, notwithstanding his  title, qualified as a  person

protected by the ADEA, the court weighed factors such as:

          the  right   and  duty   to  participate   in
          management; the right and  duty to act as  an
          agent   of  other   partners;   exposure   to
          liability; the  fiduciary relationship  among
          partners . .  . participation in profits  and
          losses;  investment  in  the  firm;   partial
          ownership of firm assets; voting rights;  the
          aggrieved individual's ability to control and
          operate the business; the extent to which the
          aggrieved   individual's   compensation   was
          calculated as  a  percentage  of  the  firm's
          profits;  the  extent  of  that  individual's
          employment                               security; and other similar indicia
          of ownership.

                               16

Simpson, 100 F.3d at 443-44.  Concluding that the plaintiff  more

closely resembled an employee than a proprietor   the court noted

particularly                       that the plaintiff had no right either to participate

in             the                 partnership's management decisions or to vote for those who

did, and that his compensation was not determined on the basis of

the firm's profits   the court allowed the plaintiff to sue under

the ADEA.  See id. at 441-43.

          The  Tenth  Circuit grappled  with  the  same  sort  of

conundrum in Wheeler, a case which also involved a partner in  an

accounting firm.   In determining that  the plaintiff was not  an

employee                   for                       purposes of either Title VII or the ADEA, the Wheeler

court                focused on her participation in firm profits and losses, her

exposure to liability, her investment in the firm, and her voting

rights under the partnership agreement.  See Wheeler, 825 F.2d at

276.

          Other cases,  though  not involving  partnerships,  are

useful in  our analysis.    In Devine,  for example,  the  Eighth

Circuit, in deciding whether attorneys who were shareholders  and

directors                    in                      a                        professional services corporation were employees for

Title VII purposes, stated that courts should "look to the extent

to             which                   [the                       attorneys]                                  manage and own the business."  Devine, 100

F.3d at 81.  The court proceeded to consider factors such as  the

attorneys' ability  to participate  in setting  firm policy,  the

extent                 of                    their contributions to firm capital, their liability for

firm debts, and the correlation (or lack of correlation)  between

their compensation and the firm's profits.  See id.

                               17

          In                       a                        comparable                                   situation, the Eleventh Circuit evaluated

the ADEA claim of  a member-shareholder of an accounting firm  by

weighing                   elements such as the plaintiff's ability to share in firm

profits  and whether  his compensation  was a  function of  those

profits; the plaintiff's liability for the firm's losses,  debts,

and              obligations;                           and                              the                                  extent of the plaintiff's right to vote on

major firm decisions.  See Fountain, 925 F.2d at 1401.  The court

dismissed                    an                       assertion that the "autocratic" actions of the firm's

president constituted a reasonable basis for concluding that  the

plaintiff                    was an employee.  "Domination by an `autocratic' partner

over               others                      is                        not                            uncommon and does not support a finding that the

others are `employees.'"  Id.

          We  think that  these cases  provide valuable  guidance

concerning                     the factors which courts must consider in making status

determination                      s under Title VII.  In large, the critical attributes

of             proprietary status involve three broad, overlapping categories:

ownership,                     remuneration, and management.  Within these categories,

emphasis will vary depending  on the circumstances of  particular

cases.   Nonetheless,  although myriad  factors may  influence  a

court's ultimate  decision in  a given  case, we  recount a  non-

exclusive list  of factors that  frequently will  bear upon  such

determinations.

          Under the  first  category,  relevant  factors  include

investment                     in                        the                           firm,                                 ownership of firm assets, and liability for

firm  debts and obligations.   To the  extent that these  factors

exist,                 they                      indicate                              a                                proprietary role; to the extent that they do

                               18

not              exist,                     they                         indicate                                  a status more akin to that of an employee.

          Under the second category, the most relevant factor  is

whether (and if so, to what extent) the individual's compensation

is based on the firm's profits.   To the extent that a  partner's

remuneration is subject  to the vagaries  of the firm's  economic

fortunes, her status more closely resembles that of a proprietor;

conversely, to the  extent that a partner  is paid on a  straight

salary                 basis,                       the                           argument for treating her as an ordinary employee

will gain strength.  A second potentially relevant factor in this

regard relates to  fringe benefits.   An individual who  receives

benefits of a  kind or in an  amount markedly more generous  than

similarly situated employees who possess no ownership interest is

more likely to be a proprietor.

          Under the third category, relevant factors include  the

right                to                   engage                         in                            policymaking; participation in, and voting power

with               regard                      to, firm governance; the ability to assign work and to

direct                 the                     activities                               of                                  employees within the firm; and the ability

to             act                 for                     the firm and its principals.  Once again, to the extent

that these factors exist, they indicate a proprietary role.

          We add a  note of caution.   Status determinations  are

necessarily made along  a continuum.  The  cases that lie at  the

polar extremes  will prove  easy to  resolve.   The close  cases,

however, will require  a concerned court to make a  case-specific

assessment of whether a particular situation is nearer to one end

of the continuum or the other.  In performing this assessment, no

single                 factor should be accorded talismanic significance.  Rather,

                               19

a  status determination under  Title VII must  be founded on  the

Given                these                      verities, any effort to formulate a hard-and-fast rule

would likely result in a statement that was overly simplistic, or

too general to be of any real help, or both.  

VI.  THE MERITS

          To   complete  our   journey,  we   must  undertake   a

particularized          totality of the circumstances which pertain in a particular case.                         analysis aimed  at determining  whether the  lower

court,                 at                    the summary judgment stage, appropriately could conclude

that               Serapion                        was                           not                               an                                  employee of the Firm within the purview of

Title                VII.                                          Consistent                                with the summary judgment protocol, we focus

only on uncontested documentary proof, such as the provisions  of

the partnership agreement and the minutes of the Firm's Executive

Committee meetings  (every page  of which  bears the  appellant's

initials), supplemented  by facts asserted  by the appellant  and

those conceded by her.

          The factors  relevant  to  ownership  and  remuneration

provide powerful  indications that  the appellant  should not  be

treated as an employee for Title VII purposes.  It is  undisputed

that Serapion received an equity interest in the Firm upon  being

named a proprietary partner.  Her compensation was predicated  in

substantial                      measure                             on                                the Firm's profits,6 and she would have been

     6Whereas associates in the Firm received fixed  compensation
(plus an  occasional bonus  based on  performance), all  partners
(senior                  and                      junior) received a base salary supplemented by a share
of the Firm's profits paid out periodically in proportion to each
partner's                    allotment                             of                                PDUs.  For example, when the appellant first
ascended to proprietary partnership, her overall compensation was
composed of a base salary ($60,183 per annum) plus a share of the

                               20

liable had the Firm sustained losses.  In the ensuing months, she

made substantial  capital contributions to  the Firm.   She  als

received very generous fringe benefits, e.g., a car allowance  in

excess of $10,000 per annum and a discretionary expense allowance

of $16,400  yearly.   These  benefits  were comparable  to  those

received by the other proprietary partners, but more  extravagant

than the benefits available to junior partners and associates.

          The picture  is  only slightly  less  clear as  to  the

                                                                e                                                                          o          management prong  of the  test.   As a  proprietary partner,  th

appellant participated  meaningfully  in the  Firm's  governance.

Unlike non-proprietary partners (who were allowed to attend Board

of Partners' meetings  but could vote  only on matters  affecting

their own interests), proprietary partners were guaranteed a vote

in             all                 matters                        brought                                before the Board.  The partnership agreement

describes                    this tribunal as "the highest policy and decision making

body of the Firm."   Furthermore, the appellant's vote had  added

significance:  if an impasse developed between a majority of  the

Board and 4/5ths of the proprietary partners, the decision of the

proprietary partners controlled.   While the appellant  belittles

Board  membership,  voting  status   in  a  law  firm's   highest

decisionmaking  body  is no  small  thing.   The  fact  that  the

firm's                 profits                        (amounting to approximately $30,000 during her first
year               as                  a                    proprietary partner).  Her total compensation was pegged
to             75%                 of                    what the four name partners received (resulting in gross
remuneration appreciably  higher  than that  earned by  any  non-
proprietary                      partner).                                                               Her percentage allocation increased steadily
during the period  that followed, so that,  at the time the  Firm
dissolved                    in                       1992,                            her                                total compensation equalled 92% of the total
compensation paid to each of the name partners.

                               21

membership  consisted of  roughly half  the lawyers  in the  Firm

dilutes,                   but                       does                           not                               dispel, the significance of such membership.7

          Serapion's involvement in  management went well  beyond

membership in the Board of Partners.   She served as one of  five

voting                 members                         of                           the                               Executive Committee, which managed the Firm's

day-to-day operations and  regularly decided matters relating  to

salaries,  finances,  fee   schedules,  office  space,   employee

performance,                       recruitment, admission of new partners, acceptance of

business,                    work                        assignments, and the staffing of cases.  In a period

of             about                   two                      years,                             the                                 appellant attended no fewer than sixteen of

these meetings and wrote up the minutes.  A review of  Serapion's

handiwork                    shows her to have been a robust participant in important

policy decisions; for example, the minutes reflect that she  made

several                  motions                         anent                               the admission of new partners.  The Executive

Committee was  the nerve  center of  the Firm.   The  appellant's

membership on  it,  coupled with  her  degree of  involvement  in

management generally,  strongly  suggests  that she  was  not  an

employee.                                         So, too, does the fact that she had authority to act as

an agent for the Firm and its partners; one manifestation of this

authority was that, after  she became a senior partner, the  Firm

empowered her to sign checks drawn on its accounts.

          The appellant does not go gently into this dark  night.

For              the                  most                      part,                            she                                strives to refocus our attention on the ways

                                                       7               We                   take judicial notice of the fact that many law firms have
partner/associate ratios near one-to-one, yet few lawyers working
for these  firms would  deny  that the  partners enjoy  a  status
fundamentally different from that of the associates.

                               22

in             which                   she                      possessed                                less power than the four name partners.  She

complains that her name was never added to the Firm's name;  that

neither                  her                     compensation                                  nor her equity interest ever equalled that

of             the                 name                     partners;                               that she had less authority to assign matters

within the Firm;  and that  she did not  head any  of the  Firm's

departments.                                               But                           this                                constellation of complaints assumes that all

partners except those equivalent in stature and authority to  the

most powerful partners of a law firm are employees for Title  VII

purposes.  The assumption lacks any solid legal underpinning.   A

person with  the requisite  attributes of  proprietary status  is

properly considered a proprietor, not an employee, regardless  of

the fact  that others  in the  firm may  wield more  power.   See

Fountain, 925 F.2d at 1401.

          The appellant also  makes a  closely related  argument,

noting                 that                      she                         rarely                                got her way on disputed matters and that she

dissented                    from many decisions.8  But focusing on the fact that her

views  sometimes did  not  prevail  confuses  participation  with

control.                                       Insofar                           as                              the                                  management prong of the test is concerned,

the              hallmarks                       of                          proprietary status are the right to participate in

decisionmaking  and  the  right  to  have  a  meaningful  say  in

governance.   Within the structure  of any organization,  certain

     8It is disingenuous for the appellant to focus on the number
of             recorded                      votes taken by the Executive Committee as proof of her
alleged  powerlessness, especially  since  the minutes  of  those
meetings indicate that the vast majority of policy decisions were
reached by consensus.  General agreement on a matter is certainly
tantamount  to a vote,  and it cannot  be gainsaid that  numerous
policy                 decisions were made, often by unanimous consent, during the
time the appellant was a member of the Executive Committee.

                               23

individuals                      tend                          to                             dominate others, and the dominators' viewpoints

will               more                    often be adopted.  See id.  This phenomenon often occurs

among equals (Adams reportedly wrote to Jefferson on November 12,

1813,                describing Dickinson as "primus inter pares, the bellwether,

the leader of the aristocratical flock") and, in all events,  the

exercise                   of                      hegemony                              by                                 one partner does not automatically dislodge

others                 in                    the                       hierarchy                                 from proprietary status.  Elsewise, all the

partners in a law firm  or an accounting practice, save only  the

managing partner(s), would be treated as employees for Title  VII

purposes regardless  of  the extent  of  their ownership  or  the

correlation between their remuneration and the entity's  profits.

The law is  to the contrary:  it is not a necessary corollary  of

proprietary status that the views of the partner in question will

always   or even usually   prevail.

          In this case, all roads lead to Rome.  The evidence  is

uncontradicte                      d that the appellant had an ownership interest in the

Firm; that her compensation depended substantially on the  Firm's

fortunes; and that  she enjoyed significant voting rights in  the

Firm's two  principal governing bodies.   Given these  undisputed

facts,  no reasonable  factfinder could  conclude that  Margarita

Serapion was other than a bona fide equity partner, and, as such,

a person  ineligible  to claim  the  protection which  Title  VII

reserves for those who are employees.  Consequently, the district

court did not err in granting summary judgment in the defendants'

                               24

favor on the Title VII claim.9

VII.  THE IDENTITY OF THE DEFENDANTS

          Before closing,  we  note a  procedural anomaly.    For

reasons best known to her, the appellant elected to sue three  of

her former partners and their fledgling partnership, but not  the

Firm.    This  tactic raises  questions  about  whether  the  new

partnership can  be held liable  as a successor  to the Firm  and

whether                  law                      partners                              can                                  be held individually liable as "employers"

under                Title                      VII.  The last question, in particular, is potentially

difficult.  Compare Tomka v. Seiler Corp., 66 F.3d 1295,  1314-17

(2d              Cir.                   1995) (dismissing the possibility of individual liability

under Title VII) with  Kauffman v. Allied Signal, Inc., 970  F.2d

178, 184-85 (6th Cir. 1992) (suggesting that individual liability

exists).  This circuit has not resolved the issue.  See Scarfo v.

Cabletron                    Sys., Inc., 54 F.3d 931, 951-52 (1st Cir. 1995) (leaving

the question open).

          We need  not enter this thicket  today.  It is  crystal

clear                that                     the liability (if any) of the individual defendants and

the new  partnership cannot possibly  exceed that  of the  actual

employer.  Because Serapion was not an employee, her suit  cannot

proceed                  under                        Title                             VII                                 against any of the individual defendants or

against the new partnership.

     9Because this ground is dispositive of the federal claim, we
take no  view of the  district court's  alternative holding  that
Serapion failed  to make out a  prima facie case of  gender-based
discrimination.

                               25

VIII.  CONCLUSION

          We need go no further.  Once it had determined that the

federal  claim could  not  go  forward, the  district  court  had

substantial discretion under 28 U.S.C. S 1367(c)(3) (1994) either

to             retain                    or                      to                         relinquish jurisdiction over the supplemental claim

which the  appellant had  brought under  local law.   See,  e.g.,

McIntosh                                    v.                      Antonino                            ,                               71                                  F.3d 29, 33 n.3 (1st Cir. 1995); Rodriguez

v.             Doral                   Mortgage                           Corp.,                                  57 F.3d 1168, 1176-77 (1st Cir. 1995).  In

this instance,  the court's decision  to refrain from  exercising

jurisdiction was well within the encincture of its discretion.

Affirmed.

                               26
