                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FRED FICHMAN,                                   No. 05-16653
                   Plaintiff-Appellant,
                   v.                             D.C. No.
                                               CV-04-00104-HDM
MEDIA CENTER,
                                                   OPINION
                 Defendant-Appellee.
                                          
        Appeal from the United States District Court
                 for the District of Nevada
       Howard D. McKibben, District Judge, Presiding

                  Submitted October 19, 2007*
                    San Francisco, California

                      Filed January 14, 2008

       Before: Jane R. Roth,** Sidney R. Thomas, and
           Consuelo M. Callahan, Circuit Judges.

                    Opinion by Judge Thomas




   *The panel unanimously finds this case suitable for decision without
oral argument.
   **The Honorable Jane R. Roth, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.

                                 429
432                FICHMAN v. MEDIA CENTER


                         COUNSEL

Jeffrey A. Dickerson; Reno, Nevada, for the appellant.

Gary A. Cardinal and Brent L. Ryman; Erickson, Thorpe &
Swainstone, Ltd.; Reno, Nevada, for the appellee.


                         OPINION

THOMAS, Circuit Judge:

   This appeal presents the question of whether directors of a
nonprofit organization or independent volunteer producers
may be considered employees within the meaning of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,
and the Americans with Disabilities Act, 42 U.S.C. § 12,101
et seq. We conclude that they may not, and we affirm the dis-
trict court’s grant of summary judgment holding that the non-
profit corporation does not have a sufficient number of
employees to be considered an “employer” within the mean-
ing of the statutes.

                               I

  The Cable Communications Policy Act of 1984, Pub. L.
No. 98-549, 98 Stat. 2779 (1984), authorizes local govern-
ments’ cable franchising authorities to require cable operators
                   FICHMAN v. MEDIA CENTER                   433
to set aside cable channels for “public, educational or govern-
mental use.” 47 U.S.C. § 531(a). These channels, typically
called “PEG” or “Community Access” channels, are often
operated by nonprofit organizations. Community Access
operators allow citizens and local organizations to produce
their own television shows for broadcast. Community Access
channels also typically broadcast local governmental meetings
and other community events.

   Sierra Nevada Community Access Television, Inc. d/b/a
The Media Center (“Media Center”) is an independent, non-
profit 501(c) corporation established in 1991. It operates a
Community Access Channel in Reno and Sparks, Nevada.
Like most Community Access Channel operators, Media Cen-
ter broadcasts local government meetings and programming
supplied by independent producers.

   Fred Fichman served as Executive Director of Media Cen-
ter from July 8, 2002 until he was terminated from the posi-
tion on December 1, 2003. During that period, Media Center
did not have fifteen or more paid employees except for one
two-week span of time. During that period, there were
approximately eighty independent producers who supplied
broadcast content, but received no compensation from Media
Center. Also during that period, Media Center was governed
by a nine-member Board of Directors, the members of which
were not compensated by Media Center.

  After his termination, Fichman sued Media Center, alleging
violations of the Age Discrimination in Employment Act
(“ADEA”) and the Americans with Disabilities Act (“ADA”),
and asserting a state law tort claim of intentional infliction of
emotional distress.

   The district court granted Media Center’s motion for sum-
mary judgment, holding that it lacked subject matter jurisdic-
tion because Media Center employed fewer than the twenty
employees necessary for an employer to be governed by the
434                FICHMAN v. MEDIA CENTER
ADEA, 29 U.S.C. § 630(b), and fewer than the fifteen
employees necessary for an employer to be governed by the
ADA, 42 U.S.C. § 12,111(5)(A). The court declined to exer-
cise supplemental jurisdiction over the state law claim. Fich-
man timely appealed.

   We review the district court’s decision to grant summary
judgment de novo. Qwest Commc’ns Inc. v. City of Berkeley,
433 F.3d 1253, 1256 (9th Cir. 2006). Thus, viewing the evi-
dence in the light most favorable to the nonmoving party, we
must determine whether there are any genuine issues of mate-
rial fact and whether the district court correctly applied the
relevant substantive law. See Olsen v. Idaho State Bd. of Med-
icine, 363 F.3d 916, 922 (9th Cir. 2004).

                               II

   The district court properly granted summary judgment on
Fichman’s ADEA and ADA claims. The issue on appeal is
whether Fichman has raised a genuine issue of fact as to
whether Media Center employed a sufficient number of
employees to be an “employer” governed by the ADEA or the
ADA. The ADEA, which limits age discrimination in employ-
ment, applies only to an entity “engaged in an industry affect-
ing commerce who has twenty or more employees for each
working day in each of twenty or more calendar weeks in the
current or preceding calendar year . . . .” 29 U.S.C. §§ 623,
630(b). The ADA, which limits employment discrimination
against individuals with disabilities, applies only to an entity
“engaged in an industry affecting commerce who has 15 or
more employees for each working day in each of 20 or more
calendar weeks in the current or preceding calendar year
. . . .” 42 U.S.C. § 12,111(5)(A).

   Although the parties have not established a baseline num-
ber of employees unquestionably employed by Media Center
for the requisite number of weeks, neither party denies that if
Media Center’s directors or the independent producers are
                   FICHMAN v. MEDIA CENTER                     435
Media Center employees, then Media Center is an employer
for purposes of both the ADEA and the ADA. Conversely, if
none of the directors, producers, or three additional individu-
als identified by Fichman are Media Center employees, Media
Center is not an employer for the purposes of either act.
Because Fichman has not raised a genuine issue of fact as to
whether Media Center employs the requisite number of
employees required for ADA or ADEA coverage, we affirm
the district court’s grant of summary judgment.

                               A

   [1] The district court correctly held that members of the
Media Center Board of Directors could not be counted as
employees under the ADA and ADEA. This question is gov-
erned by the United States Supreme Court’s analysis in
Clackamas Gastroenterology Associates, P.C. v. Wells, 538
U.S. 440 (2003). In Clackamas, the Court addressed whether
physicians that were also directors and shareholders of a
clinic were employees for purposes of the ADA. The Court
noted that Congress had intended the word “employee” to
describe “the conventional master-servant relationship as
understood by common-law agency doctrine.” Id. at 445
(internal quotation marks and citation omitted). The Court
then described six factors relevant to determining whether a
director is an employee:

    •   Whether the organization can hire or fire the indi-
        vidual or set the rules and regulations of the indi-
        vidual’s work

    •   Whether and, if so, to what extent the organiza-
        tion 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
436                 FICHMAN v. MEDIA CENTER
      •   Whether the parties intended that the individual
          be an employee, as expressed in written agree-
          ments or contracts

      •   Whether the individual shares in the profits,
          losses, and liabilities of the organization.

Id. at 449-50. The Court noted that these factors were not
exhaustive, and that whether an individual is an employee
depends on “all of the incidents of the relationship[,] with no
one factor being decisive.” Id. at 450 n.10, 451 (internal quo-
tation marks and citation omitted).

   [2] Under Clackamas, the district court properly concluded
that the members of the Board of Directors were not Media
Center employees. 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 reim-
bursement nor the food supplied at Board meetings rises to
the level of compensation. The personal satisfaction and pro-
fessional status several directors reported gaining from their
positions with Media Center are typical benefits of volunteer
work.

   [3] Nor does Media Center supervise or regulate the direc-
tors’ work. Directors do not share in the day-to-day responsi-
bilities of Media Center staff, but rather spend approximately
two to four hours a month on Media Center work. The Board
is 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.

   [4] The directors do not report to someone higher in the
organization in any traditional way. The different committees
of the Board report back to the Board, but the reports are not
                   FICHMAN v. MEDIA CENTER                   437
those made to a chief executive officer. Rather, the commit-
tees report as advisors on particular subjects. The Board as a
whole acts as the ultimate supervisor: the Executive Director
must get the Board’s approval for budgets and large expendi-
tures.

   [5] Because of their advisory and supervisory function, the
directors are in a position to influence Media Center. The
Board sets policy and makes recommendations to the Execu-
tive Director. The Executive Director implements the Board’s
recommendations.

   [6] Likewise, the parties’ intent supports the conclusion
that the directors are not employees. In their depositions, the
directors stated that they consider themselves volunteers, not
employees. Fichman did not produce employment agreements
or any testimony that would contradict this statement or sug-
gest that Media Center intended otherwise.

   [7] The last factor — whether the individual shares in the
profits, losses, and liabilities of the organization — may not
be appropriate to the non-profit setting. Media Center did
maintain officers’ and directors’ liability insurance so that the
directors would not be exposed to liability because of their
work with Media Center. This was the only insurance cover-
age (or other type of traditional “benefit”) the directors
received.

   [8] In sum, the district court correctly concluded that there
was no genuine issue of material fact as to whether the direc-
tors may be treated as Media Center employees for the pur-
poses of the ADA.

  [9] Most courts consider the definition of “employee” to be
uniform under federal statutes where it is not specifically
defined, including the ADEA and ADA. See, e.g., EEOC v.
Johnson & Higgins, Inc., 91 F.3d 1529, 1537-40 (2d Cir.
1996) (relying on cases defining “employee” for purposes of
438                FICHMAN v. MEDIA CENTER
the ADEA and Title VII in evaluating age discrimination
claim). Therefore, although Clackamas only involved the
ADA, we see no basis for applying a different analytical
framework to the ADEA claim. Accordingly, we conclude
that the district court also properly concluded that the direc-
tors were not Media Center employees for purposes of the
ADEA claim.

                              B

   [10] The district court also correctly concluded that the
independent producers were not employees under the ADA
and ADEA. Fichman produced no evidence of a traditional
employer-employee relationship, or master-servant relation-
ship, between Media Center and the television and radio pro-
ducers. Indeed, one of the animating ideas behind the creation
of PEG channels was to provide an electronic “ ‘soapbox’
channel on which anyone would be able to appear on the
medium and communicate his ideas to the system’s subscrib-
ers.” 2 Ferris & Lloyd, Telecommunications Regulation:
Cable, Broadcasting, Satellite, and the Internet (Matthew
Bender 2004) ¶15.01, p. 15-3. Local producers submit video
for broadcast on the channel. Typical programming includes
fitness training, discussions about the arts, cooking classes,
and the religious programming—all created by members of
the public, or representatives of non-profit corporations, who
wish to broadcast their own content on cable. Programming
also may include eccentric productions of the sort satirized in
“Wayne’s World,” a recurring television comedy sketch later
adapted into a motion picture, in which a high school student
offered weekly sardonic observations on life from the base-
ment of his parent’s home in Aurora, Illinois. Wayne’s World
(Paramount Pictures 1992); cf. Mel Brooks, I want to be a
Producer, on The Producers: Original Broadway Cast
Recording (Sony Music International, Inc. 2001) (“I have a
secret desire/Hiding in my soul/To see me in this role/I wanna
be a producer.”).
                   FICHMAN v. MEDIA CENTER                 439
   [11] The producers pay for Media Center classes through
which they can become certified to use Media Center facili-
ties. Once certified, they receive minimal supervision while
using the facilities. Producers are required to sign a contract
and agree to indemnify Media Center against any liability.
The contract does not define the relationship as employer-
employee. There is no prohibition against non-local producers
submitting videos, but the producers are required to have a
local sponsor. A parental signature is required if the submit-
ting producer is under the age of 18.

  [12] Media Center does not have the power to hire or fire
producers. It does not supervise them in a traditional
employer-employee manner. The producers are not paid a sal-
ary, nor are they entitled to employee benefits.

   [13] Given these undisputed facts, the district court cor-
rectly held that the independent program producers could not
be counted as employees within the meaning of the ADA or
ADEA. Neither the serious members of the public who pro-
vide programming content to Media Center, nor the aspiring
Wayne Campbells of northern Nevada, qualify as Media Cen-
ter employees.

                              C

   [14] The district court did not err in determining that, in
counting only the true employees as defined in the ADA and
ADEA, Media Center did not meet the statutory minimum
under either act. The Supreme Court has determined that the
“ultimate touchstone” is “whether an employer has employ-
ment relationships with fifteen or more individuals” (at a
minimum) for the requisite number of weeks, and has
acknowledged that the employer’s payroll is evidence of these
relationships. Walters v. Metro. Educ. Enters., Inc., 519 U.S.
202, 211-12 (1997).

  [15] The district court examined and considered Media
Center’s payroll evidence and related declarations establish-
440                FICHMAN v. MEDIA CENTER
ing that there was only one two-week period over the relevant
two years in which Media Center employed fifteen employ-
ees. Fichman contends that these records reflect an inaccurate
count of Media Center employees. However, even after the
district court afforded him time to tender evidence that would
create a genuine issue of material fact, he failed to present
evidence that the payroll records were faulty or provide affir-
mative evidence of an employment relationship between
Media Center and any other person not listed in the payroll
records. Therefore, the district court did not err in granting
summary judgment on the ADA and ADEA claims.

                              III

   [16] In sum, the district court properly held that members
of the Board of Directors and independent producers could
not be considered “employees” within the meaning of the
ADA and ADEA. Fichman failed to raise a genuine issue of
fact as to whether Media Center otherwise employed the req-
uisite number of employees for the relevant period of time.
Therefore, the district court correctly granted summary judg-
ment on Fichman’s claims under the ADEA and ADA. Hav-
ing granted judgment on the federal claims, the district court
did not abuse its discretion in declining to exercise supple-
mental jurisdiction over the state claims. 28 U.S.C.
§ 1367(c)(3); Harrell v. 20th Century Ins. Co., 934 F.2d 203,
205-06 (9th Cir. 1991).

  AFFIRMED.
