                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          March 26, 2019

                                                                            Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

 KARNA SACCHI,

       Plaintiff - Appellant,
                                                              No. 18-4027
 v.

 IHC HEALTH SERVICES, INC.; JOY
 SINGH,

       Defendants - Appellees.
                      _________________________________

                     Appeal from the United States District Court
                               for the District of Utah
                           (D.C. No. 2:16-CV-01107-BSJ)
                       _________________________________

Christian A. Kesselring, Wasatch Law Group, PLLC, Salt Lake City, Utah, for Plaintiff -
Appellant.

Chad R. Derum (Christopher M. Glauser, with him on the brief), Manning Curtis
Bradshaw & Bednar PLLC, Salt Lake City, Utah, for Defendant - Appellee IHC Health
Services, Inc.
                      _________________________________

Before PHILLIPS, KELLY, and CARSON, Circuit Judges.
                   _________________________________

KELLY, Circuit Judge.
                         _________________________________

      Plaintiff-Appellant Karna Sacchi obtained an unpaid internship with Defendant-

Appellee IHC Health Services, Inc. (the “Hospital”), but her internship was terminated by
Defendant-Appellee Joy Singh before it was scheduled to finish. 1 Aplt. App. 17, 21,

23–24. Ms. Sacchi then filed a complaint alleging: (1) associational discrimination and

retaliation under the Americans with Disabilities Act (ADA), (2) sex and religious

discrimination under Title VII of the Civil Rights Act, (3) age discrimination under the

Age Discrimination in Employment Act (ADEA), (4) breach of contract, and (5)

defamation against Ms. Singh. Id. at 13–14. The district court dismissed Ms. Sacchi’s

federal claims pursuant to Fed. R. Civ. P. 12(b)(6) because it concluded that she was not

an employee and therefore not protected under the antidiscrimination statutes. 1 Aplt.

App. at 43. The district court also declined to exercise supplemental jurisdiction over her

non-federal claims and dismissed them without prejudice. Id.

          On appeal, Ms. Sacchi asks the court to hold that, in an internship setting, access

to professional certification, a path to employment, or both can constitute indirect,

significant job-related benefits and thereby satisfy the “threshold-remuneration” test if

those benefits are substantial and not incident to the internship. Aplt. Br. at 24–25. In

the alternative, Ms. Sacchi asks the court to hold that most unpaid interns are

“employees” under federal antidiscrimination statutes. Id. at 25. On the facts alleged in

Ms. Sacchi’s complaint, we conclude that the benefits claimed are too attenuated and

speculative to constitute sufficient remuneration for purposes of this circuit’s threshold-

remuneration test. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.




                                                2
                                        Background

       Ms. Sacchi’s complaint alleged that she was pursuing a master’s degree at Mills

College in early childhood education with an emphasis in child life in hospitals, and she

sought to become a certified child life specialist. 1 Aplt. App. 16. The Child Life

Council requires that applicants for certification complete 480 hours in an internship with

an approved institution. Id. at 16. To that end, Ms. Sacchi began an internship with the

Hospital, and her internship was originally scheduled to last from August 26, 2015, to

December 15, 2015. Id. at 17–18. On November 3, however, Ms. Singh, the Director of

Child Life at the Hospital, terminated the internship. Id. at 24. The complaint further

alleged that Ms. Singh and the Hospital knew that Ms. Sacchi’s father had a disability,

that Ms. Sacchi was a single mother and not a member of the LDS church, and that Ms.

Sacchi was over 40 years of age. Id. at 5, 22, 26, 28.

       Relevant to this appeal, Ms. Sacchi received no direct payment or other benefits

for her work as an intern. Ms. Sacchi alleged, however, that the internship would provide

other benefits; namely, it would allow her to satisfy the internship requirement to be

certified as a child life specialist, and that it would provide a pathway to employment

because “[t]he great majority of newly certified child life specialists obtain paid

employment in the field shortly after certification — often with the institutions where

they completed their internships.” Id. at 16, 21, 26. To be certified as a child life

specialist Ms. Sacchi was required to have satisfied three requirements: (1) complete an

educational component, (2) complete 480 hours of clinical training, and (3) pass a

certification exam. See id. at 16. The Hospital’s internship program is designed to

                                              3
satisfy the clinical experience requirement, and the program is accredited and recognized

by the Child Life Council. Id. Once Ms. Sacchi completed her internship she would

have been qualified to take a certification exam, which most people pass on the first

attempt. Id. Given Ms. Sacchi’s previous academic performance, she maintains it is

likely that she would have passed the exam. Id. at 16–17.

         The district court dismissed Ms. Sacchi’s federal claims because it concluded that

Ms. Sacchi had not alleged facts sufficient to qualify as an employee for the purposes of

the ADA, ADEA, and Title VII and thus did not fall within those statutes’ protections.

Id. at 43.


                                          Discussion

         We review a district court’s dismissal of a complaint for failure to state a claim de

novo. Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). We accept all facts

alleged in a well-pleaded complaint as true, and we view the facts in the light most

favorable to Ms. Sacchi. Potts v. Ctr. for Excellence in Higher Educ., Inc., 908 F.3d 610,

613 (10th Cir. 2018). We also review de novo the legal conclusion whether a person is

within the class of persons protected by the statutes under which she claims relief. See

id.

      A. Whether Ms. Sacchi Satisfies the Threshold-Remuneration Test

         We review whether the facts Ms. Sacchi alleged in her complaint established that

she was plausibly an “employee” within the meaning of Title VII, the ADA, and the

ADEA. Viewed in the light most favorable to her, the facts she alleged were insufficient


                                               4
to establish a plausible employment relationship under Title VII, the ADA, and the

ADEA. For this reason, we conclude that the district court properly dismissed Ms.

Sacchi’s complaint under Fed. R. Civ. P. 12(b)(6).

       In each of the Acts, “employee” is defined as “an individual employed by an(y)

employer.” 29 U.S.C. § 630(f) (ADEA definition); 42 U.S.C. §§ 2000e(f) (Title VII

definition); 42 U.S.C. § 12111(4) (ADA definition).1 Typically, this circuit relies on a

common law test that invokes agency principles to determine whether a person is an

employee for the purposes of the employment discrimination statutes. See, e.g.,

Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1028 & n.1 (10th Cir. 1996). When a

person is unpaid, however, we inquire whether the person receives sufficient

remuneration to proceed to the common law analysis. See McGuinness v. Univ. of N.M.

Sch. of Med., 170 F.3d 974, 979 (10th Cir. 1998). Accordingly, this test is known as the

“threshold-remuneration test.” Johnston v. Espinoza-Gonzalez, No. 16-cv-00308-CMA-

KLM, 2016 WL 7188524, at *4 (D. Colo. Dec. 12, 2016). In McGuinness, we explained

that “[u]nless a student receives remuneration for the work he performs, he is not

considered an employee.” 170 F.3d at 979. We concluded in McGuinness that even

though the student “completed federal employment applications, took a federal oath of

office, and was covered by the New Mexico Tort Claims Act,” he was not “an employee


1
  The Supreme Court has explained that when Congress uses the term “employee”
without defining it precisely, courts should presume Congress contemplated “the
conventional master-servant relationship as understood by common-law agency
doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–23 (1992) (quoting
Comty. for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989)). Thus, the three
definitions should be interpreted identically.
                                             5
of a state-run medical school.” Id. Thus, “[a]n organization, such as a university, may

confer certain benefits on an individual and exercise a modicum of control over him

without establishing a master-servant relationship.” Id.

       Several other circuits apply the threshold-remuneration test. See generally Juino

v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431 (5th Cir. 2013); York v. Assoc. of the

Bar of the City of N.Y., 286 F.3d 122 (2d Cir. 2002); Llampallas v. Mini-Circuits, Lab,

Inc., 163 F.3d 1236 (11th Cir. 1998); Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6

F.3d 211 (4th Cir. 1993); Graves v. Women’s Prof’l Rodeo Ass’n, 907 F.2d 71 (8th Cir.

1990). In general, to satisfy the test, the plaintiff must receive direct remuneration or

indirect benefits that are substantial or significant and not incidentally related to

advancing the purpose of the putative employer. Juino, 717 F.3d at 436–37. In Juino, the

plaintiff, a volunteer firefighter, received $2.00 per fire/emergency call, life insurance, a

uniform and badge, and firefighting and emergency response gear and training. Id. at

439. The Fifth Circuit concluded that these benefits were merely incidental to volunteer

service. Id. at 439–40.

       In contrast, the Fourth Circuit held that whether benefits are indirect but

significant remuneration or merely incidental was for the trier of fact to resolve where the




                                               6
plaintiff firefighter received numerous benefits,2 including an opportunity to obtain

certification as an emergency medical technician.3 Haavistola, 6 F.3d at 221 n.3.

       We conclude that Ms. Sacchi’s intern relationship with the Hospital fails to satisfy

the threshold-remuneration test as a matter of law for two reasons. First, the claimed

benefits were not provided directly by the hospital, and they did not resemble traditional

employment benefits like a pension or insurance. Second, the claimed benefits were

attenuated: they would only be realized if subsequent events occurred independently of

the internship relationship, thereby rendering them too insubstantial or insignificant.

       Although an internship was required for Ms. Sacchi to sit for a professional exam,

she still had to pass the exam to receive her child life certification. See 1 Aplt. App. 16.

For her to have obtained a position thereafter, she still had to find an open position, apply

for that position, and then be selected over all other applicants in what Ms. Sacchi noted

is a competitive field. Aplee. Br. at 15; 1 Aplt. App. 25. Merely because others have

obtained positions after unpaid internships does not constitute a substantial or significant




2
  They included (1) a state-funded disability pension, (2) survivors’ benefits for
dependents, (3) scholarships for dependents upon disability or death, (4) a state flag to
family upon death in the line of duty, (5) benefits under the Federal Public Safety
Officers’ Benefits Act when on duty, (6) group life insurance, (7) tuition reimbursement
for courses in emergency medical and fire service techniques, (8) coverage under
Maryland’s Workers Compensation Act, (9) tax exemptions for unreimbursed travel
expenses, (10) the ability to purchase a special registration plate at lower cost, and (11)
access to a method by which one may obtain a certification as a paramedic. Haavistola, 6
F.3d at 221.
3
  Similarly, Ms. Sacchi argues that a child life internship presents the only option for
obtaining a child life certification. Aplt. Br. at 21.
                                              7
indirect benefit.4 Thus, even viewing the facts in the light most favorable to Ms. Sacchi,

the claimed benefits are too attenuated and conditional to constitute substantial indirect

benefits.

       Although Haavistola recognized that an internship may be the “most practical

approach” to establishing eligibility for a professional certification, the plaintiff there also

pointed to many other benefits, including benefits under the Federal Public Safety

Officers’ Benefits Act when on duty and coverage under Maryland’s Workers

Compensation Act, both of which resemble more traditional employment benefits.

6 F.3d at 221 & n.3. By contrast, the benefits that Ms. Sacchi alleged are speculative,

follow-on benefits that do not come into existence immediately as a result of the

internship. Finally, Ms. Sacchi has cited no cases, nor could we find any, where only a

professional certification and pathway to employment satisfied the threshold-

remuneration requirement.

       We also decline the invitation to conclude that all interns are protected by Title

VII, the ADA, and the ADEA. Aplt. Br. at 24–27. Even if a laudable goal, this is a task

for Congress. Moreover, we are not inclined to establish a broader rule than necessary to

decide the case before us. See Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd.,




4
  The same could be said for the general benefits students receive through unpaid
internships including “practical experience, exposure to a career field, networking, and
the esteem of potential employers.” See Aplt. Br. at 1–2.
                                               8
616 F.3d 1086, 1094 (10th Cir. 2010) (“Judicial restraint, after all, usually means

answering only the questions we must, not those we can.”).5

    B. The Hospital’s Motion to File Portion of the Record Under Seal

       One procedural issue remains. On appeal, the Hospital provided a copy of the

contract between it and Ms. Sacchi’s school (Mills College) in a sealed supplemental

appendix that had also been sealed during the district court proceedings under a standard

protective order. See 2 Aplee. Supp. App. 147–54; Aplee. First Suppl. Mot. to Seal

Suppl. App., Ex. 1. The Hospital filed a motion to seal the appendix as required by Tenth

Circuit Rule 25.6(A). See Aplee. Mot. to Seal Suppl. App. The Hospital also filed two

supplemental motions, urging that the contract should remain under seal because it

contained a confidentiality clause and involved a non-party. Aplee. First Suppl. Mot. to

Seal Suppl. App. at 2; Aplee. Second Suppl. Mot. to Seal Suppl. App. at 2–3.

       We will not grant a motion to seal unless the moving party overcomes a

presumption in favor of access to judicial records by “articulat[ing] a real and substantial

interest that justifies depriving the public of access to the records that inform our



5
  We also asked the parties for supplemental briefs addressing “[w]hether 42 U.S.C.
§ 2000e–2(d), entitled ‘Training programs,’ contemplates the type of internship at issue
in this case.” We have discretion to reach issues sua sponte in limited circumstances.
See Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 837 (10th Cir.
2014), abrogated on other grounds by Safe Streets All. v. Hickenlooper, 859 F.3d 865
(10th Cir. 2017). This theory was never raised at the district court, and it was not raised
on appeal until we asked for supplemental briefing. We therefore agree with the Hospital
that the principles motivating the application of plain error in similar circumstances
counsel that we should not exercise our discretion to reach this issue. See Aplee. Supp.
Br. at 8–10; Somerlott v. Cherokee Nation Distrib. Inc., 686 F.3d 1144, 1150–52 (10th
Cir. 2012).
                                              9
decision-making process.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663

F.3d 1124, 1135–36 (10th Cir. 2011) (quoting Helm v. Kansas, 656 F.3d 1277, 1292

(10th Cir. 2011)). The Hospital’s reasons for sealing the contract (the confidentiality

clause and the involvement of a non-party) do not overcome this burden. The interest in

preserving the confidentiality of the contract does not necessarily constitute a sufficiently

substantial justification. See Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241–42 (10th

Cir. 2012). Although the Hospital has indicated that the contract contains a

confidentiality clause, it has failed to “submit[] any specific argument or facts indicating

why the confidentiality of [the contract] outweighs the presumption of public access.” Id.

at 1242. As for the argument that the contract should be sealed because it involves a non-

party, the Hospital cites no authority explaining why the inclusion of a non-party

constitutes a real or substantial interest that justifies withholding the contract from the

public record. The Hospital also notes that the contract had been sealed by the district

court’s standard protective order, but we are not bound by a district court’s decision to

seal a document. Williams v. FedEx Corp. Servs., 849 F.3d 889, 905 (10th Cir. 2017).

Because the Hospital has not satisfied its “heavy burden,” Eugene S., 663 F.3d at 1136,

the motion is denied.

       AFFIRMED.




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