                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 04a0019n.06
                          Filed: October 12, 2004
                                No. 03-3847

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


MARY D’AGOSTINO,                              )
                                              )
       Plaintiff-Appellant,                   )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                                  STATES DISTRICT COURT FOR THE
                                                  NORTHERN DISTRICT OF OHIO
VER-A-FAST CORPORATION,

       Defendant-Appellee.



       Before: KENNEDY, DAUGHTREY, and COOK, Circuit Judges.




       PER CURIAM. The plaintiff, Mary D’Agostino, filed this action against Ver-A-Fast,

a firm that provides telemarketing services, after the company failed to hire her to be a

“verifier.” She claimed that Ver-A-Fast discriminated against her based on her disability in

violation of the Americans with Disabilities Act and Ohio state law. The district court

granted summary judgment for Ver-A-Fast, finding that verifiers were independent

contractors, not employees, and therefore were not covered by the anti-discrimination laws.


       On appeal, the plaintiff first complains that the district court misapplied the summary

judgment standard required by Fed. R. Civ. P. 56(c), because the judge dismissed the

action after “[w]eighing all the above factors . . . .” “Weighing,” the plaintiff insists, “is

impermissible in the summary judgment situation.” This statement is correct, of course, but
03-3847


only as far as weighing factual matters is concerned. In this case, however, the factors

mentioned by the district court were the legal aspects of the analysis necessary to

determine whether the defendant’s “verifiers” were employees or independent contractors.

The district court decided, after applying the correct standard, that they were the latter

rather than the former and, therefore, not covered by the Act.


      Having had the benefit of oral argument, and having studied the briefs and the

record on appeal, we are not convinced that the district court erred in dismissing the

complaint against the defendant. Because the reasons why summary judgment should be

granted to the defendant have been thoroughly and correctly articulated by the district

court, the issuance of a detailed opinion by this court would be superfluous. We therefore

affirm the judgment of the district court based on the reasoning set out in that court’s

memorandum of opinion dated May 15, 2003.




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