     07-4074-cv
     Halpert v. Manhattan Apartments Inc .


 1                                 UNITED STATES COURT OF APPEALS
 2
 3                                           FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                               August Term, 2008
 8
 9   (Argued: August 4, 2009                                            Decided: September 10, 2009)
10
11                                              Docket No. 07-4074-cv
12
13
14
15
16
17                                              MICHAEL HALPERT,
18
19                                               Plaintiff-Appellant,
20
21                                                       -v.-
22
23                                    MANHATTAN APARTMENTS, INC.
24
25                                               Defendant-Appellee.
26
27
28
29
30   Before:
31
32             CALABRESI, PARKER, and RAGGI, Circuit Judges.
33
34          Appeal from a judgment of the United States District Court for the Southern District of
35   New York (Jones, Judge) granting Manhattan Apartments, Inc.’s motion for summary judgment
36   as to Halpert’s claim under the Age Discrimination in Employment Act. We hold that an
37   employer may be held liable for discrimination by third parties, including independent
38   contractors, that the employer authorizes to make hiring decisions on its behalf. Because the
39   question of whether Manhattan Apartments, Inc. actually or apparently authorized a third-party to
40   make hiring decisions for it with respect to Mr. Halpert turns on disputes of material fact, we
41   VACATE and REMAND.



                                                         -1-
 1                                          MICHAEL HALPERT, pro se, New York, N.Y.
 2
 3                                          LOUIS R. SATRIALE, JR.(Joseph E. Gehring, Jr., of
 4                                          counsel), Gehring, Tatman & Satriale, LLC, New York,
 5                                          N.Y.
 6
 78
  9
10
11    PER CURIAM:

12           Plaintiff-Appellant Michael Halpert, pro se, appeals from the judgment of the United

13    States District Court for the Southern District of New York (Jones, J.), granting summary

14    judgment to Defendant-Appellee Manhattan Apartments, Inc. (“MAI”) on Halpert’s claim under

15    the Age Discrimination in Employment Act (“ADEA”). We assume the parties’ familiarity with

16    the facts, procedural history, and issues on appeal.

17           A district court’s grant of summary judgment is reviewed de novo, construing the

18    evidence in the light most favorable to the non-moving party. See Miller v. Wolpoff &

19    Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).

20                                                     I.

21           The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge

22    any individual or otherwise discriminate against any individual with respect to his compensation,

23    terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §

24    623(a)(1). Relying on our decision in Robinson v. Overseas Military Sales Corp., 21 F.3d 502,

25    509 (2d Cir. 1994), the District Court stated that the ADEA “does not apply to independent

26    contractors.” ROA doc 31 at 4. The District Court determined on the basis of undisputed facts

27    that Robert Brooks, who interviewed Halpert and allegedly told Halpert that he was “too old” for



                                                       -2-
 1   a position showing rental apartments, was an independent contractor and not an employee of

 2   MAI. The Court also found that Halpert had failed to present facts creating a material dispute as

 3   to whether Brooks had apparent authority to interview Halpert on behalf of MAI. As a result, the

 4   District Court concluded that MAI was not an employer under the definition of the ADEA, and

 5   that MAI was entitled to a judgment as a matter of law.

 6          Robinson does not, in fact, resolve this case. In Robinson, the district court concluded

 7   that there was no genuine issue of material fact suggesting that Robinson was an employee of the

 8   federal agency or the federal individual defendants that he had named in his suit. Accordingly,

 9   we affirmed the district court’s grant of summary judgment as to Robinson’s ADEA claims

10   against those defendants, explaining that “[t]he ADEA prohibits employers from discriminating

11   on the basis of age against their employees” and therefore does not cover claims brought by

12   independent contractors. Robinson, 21 F.3d at 509 (emphasis in original). Here, by contrast, the

13   controversy is not whether MAI was liable for discrimination against an independent contractor.

14   Rather, the issue is whether—assuming for the moment that Brooks interviewed Halpert for a

15   position with MAI or that MAI led Halpert to believe that he was applying for a position with

16   them, rather than Brooks—an employer (MAI) can potentially be held liable for discrimination

17   by an independent contractor (Brooks) who acts for the employer. The answer to this question is

18   yes.

19          By its terms, employer liability under the ADEA is direct: an employer may not “fail or

20   refuse to hire . . . any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1).

21   That prohibition applies regardless of whether an employer uses its employees to interview

22   applicants for open positions, or whether it uses intermediaries, such as independent contractors,


                                                      -3-
 1   to fill that role. As the Seventh Circuit has explained in the context of Title VII, when liability

 2   for discrimination is direct rather than derivative, “it makes no difference whether the person

 3   whose acts are complained of is an employee, an independent contractor, or for that matter a

 4   customer.” Dunn v. Wash. County Hosp., 429 F.3d 689, 691 (7th Cir. 2005). If a company

 5   gives an individual authority to interview job applicants and make hiring decisions on the

 6   company’s behalf, then the company may be held liable if that individual improperly

 7   discriminates against applicants on the basis of age.

 8          A company is not, of course, liable for the hiring decisions made by independent

 9   contractors who are hiring on their own behalf. Nor is a company liable simply because a job

10   applicant unreasonably (and incorrectly) believes that he is interviewing for a job with the

11   company and that the independent contractor has the authority to make hiring decisions on behalf

12   of the company. General principles of agency law determine whether the independent contractor

13   or other third party has been given actual authority to hire on behalf of the company, or whether

14   the company, through its own words or conduct, has created apparent authority in that individual

15   in the eyes of the job applicant. See Minskoff v. Am. Express Travel Related Servs. Co., 98 F.3d

16   703, 708 (2d Cir. 1996). Significantly, however, the company’s potential liability does not

17   depend on whether the individual hiring for the company as its agent is an employee or an

18   independent contractor under the broadest meaning of those words as they are determined by the

19   common law agency test.1 An independent contractor can act as an agent, or an apparent agent,




            1
               We embraced the common law agency test in Frankel v. Bally, Inc., 987 F.2d 86, 90
     (2d Cir. 1993) for the purposes of determining whether the party asserting a discrimination claim
     under the ADEA was an employee or an independent contractor.

                                                      -4-
 1   of the company for the limited purpose of interviewing and potentially hiring job applicants

 2   while still retaining his independence for any number of other purposes.

 3

 4                                                  II.

 5          MAI’s potential liability in this case thus turns on whether Brooks was acting as the

 6   hiring agent, or apparent hiring agent, for MAI when he interviewed Halpert for the position of

 7   showing apartments (“Shower”) or whether Brooks was simply hiring on his own account.

 8   Because we find that this question depends on disputed questions of fact, summary judgment is

 9   inappropriate.

10          The District Court observed that Halpert has not disputed MAI’s evidence that Brooks

11   was paid on commission, set his own hours, could work from home, and paid taxes as an

12   independent contractor. ROA doc 31 at 5–7. As explained above, this is not determinative.

13   Halpert’s submissions dispute MAI’s assertion that it had no control over the manner and means

14   by which Brooks conducted interviews and made hiring decisions related to the Shower position.

15   Evidence adduced by Halpert indicates (a) that MAI sponsored a “training program to show

16   rental apartments,” ROA doc 17 ¶ 22, and that those chosen from the program would receive

17   commissions from MAI, and (b) that MAI enlisted sales associates like Brooks to interview

18   candidates for this program. In support of that contention, Halpert has presented evidence (1)

19   that Laura Nielson, the career counselor who arranged the interview for Halpert, believed that

20   Halpert would be interviewing for a position with MAI, not Brooks; (2) that the interview took

21   place at MAI’s offices; and (3) that after the interview, Brooks and another MAI associate told

22   Nielson “they were looking for someone younger.” That Brooks and another MAI associate


                                                    -5-
 1   informed Nielson that they (not just Brooks) were looking for someone younger tends to support

 2   Halpert’s allegation that Brooks was interviewing Halpert not for himself but on behalf of MAI.

 3   We also note that an agreement between MAI and Brooks, which sets forth in great detail the

 4   rights and duties of both parties in connection with Brooks’s work as a sales associate, indicates

 5   that Brooks is to pay “his own expenses,” including “automobile, travel and entertainment

 6   expenses,” but does not indicate that Brooks is to compensate Showers directly.

 7          MAI has presented affidavits from Brooks and an MAI representative asserting that

 8   Halpert, if hired, would have been compensated by Brooks, not MAI. But MAI has not presented

 9   evidence corroborating that contention, and we construe Halpert’s submissions to dispute it. Nor

10   has MAI established that it was not involved in advertising the Shower position or in establishing

11   the parameters of that role. Accordingly, we conclude, contrary to the District Court, that

12   disputed issues of material fact remain as to whether MAI’s degree of control over the interview

13   and hiring process for the Shower position rendered Brooks MAI’s agent with respect to that

14   process.

15          Accordingly, the judgment of the district court is VACATED, and the matter is

16   REMANDED to the district court.2




            2
                     During oral argument before this Court, Halpert indicated that he would like
     appointed counsel. On remand, the district court is encouraged to revisit the question of whether
     it is appropriate to appoint pro bono counsel for Halpert. See, e.g., 28 U.S.C. § 1915(e)(1).

                                                     -6-
