    13-1013
    Frederick v. United Brotherhood of Carpenters


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 12th
    day of March, two thousand fourteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                ROBERT D. SACK,
                      Circuit Judge,
                JED S. RAKOFF,*
                      District Judge.
    __________________________________________

    Nakeisha Frederick,


                 Plaintiff-Appellant,

                 v.                                        13-1013

    United Brotherhood of Carpenters
    and Joiners of America (UBCJA)
    Local 926, et al.,

                 Defendants-Appellees.

    __________________________________________




          *
          The Honorable Jed S. Rakoff, United States District Judge
    of the District Court for the Southern District of New York,
    sitting by designation.
FOR PLAINTIFF-APPELLANT:              Nakeisha Frederick, pro se,
                                      Brooklyn, NY.

FOR DEFENDANT-APPELLEE:               Joni H. Kletter, Hanan B.
                                      Kolko, Meyer, Suozzi, English
                                      & Klein, P.C., New York, NY.


     Appeal from a judgment of the United States District Court

for the Eastern District of New York (Cogan, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment is VACATED and the action REMANDED for

further proceedings consistent with this order.

     Appellant, Nakeisha Frederick, pro se, appeals from the

district court’s grant of summary judgment to the United

Brotherhood of Carpenters and Joiners of America (UBCJA) Local

926 (“Local 926”), dismissing her employment discrimination

complaint because Local 926 did not have the requisite number of

employees to constitute an “employer” for purposes of Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e

et seq., during the relevant years. We assume the parties’

familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

     We review a district court’s grant of summary judgment de

novo, “resolv[ing] all ambiguities and draw[ing] all permissible

factual inferences in favor of the party against whom summary

judgment was granted.” See Gonzalez v. City of Schenectady, 728

F.3d 149, 154 (2d Cir. 2013) (internal citations, quotation

marks, and brackets omitted). “Summary judgment is appropriate if

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there is no genuine dispute as to any material fact and the

moving party is entitled to judgment as a matter of law.” Id.;

see also Fed. R. Civ. P. 56(a). Upon such review, we conclude

that the district court improperly granted summary judgment to

Local 926.

     Frederick argues that the district court erred in

determining, as a matter of law, that Local 926 was not an

employer under Title VII. Pursuant to Title VII, the term

“employer” is defined, in relevant part, as “a person . . . who

has fifteen or more employees for each working day in each of

twenty or more calendar weeks in the current or preceding

calendar year.” 42 U.S.C. § 2000e(b). An “employment relationship

is most readily demonstrated by the individual’s appearance on

the employer’s payroll.” Walters v. Metro. Educ. Enters., 519

U.S. 202, 206 (1997). However, “[a]n individual who appears on

the payroll but is not an ‘employee’ under traditional principles

of agency law, would not count toward the 15-employee minimum.”

Id. at 211 (internal citations omitted).

      The district court found that Local 926's two clerical

employees counted as “employees,” but that the ten members of its

Executive Board and the additional six or seven delegates were

not “employees” within the meaning of Title VII. Because of this,

it concluded that Local 926 had only two employees during the

relevant time period, which meant that it did not have the


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fifteen employees required for it to be an “employer” covered by

Title VII.

     In assessing whether a higher-level executive has assumed

duties that make him or her an employee for purposes of the

anti-discrimination laws, we have applied a three-factor test:

             (1) whether the [executive] has undertaken
             traditional employee duties; (2) whether the
             [executive] was regularly employed by a
             separate entity; and (3) whether the
             [executive] reported to someone higher in the
             hierarchy.

E.E.O.C. v. Johnson & Higgins, Inc., 91 F.3d 1529, 1539 (2d Cir.

1996); see also Drescher v. Shatkin, 280 F.3d 201, 203-04 (2d

Cir. 2002).

     The district court found that neither the officers nor the

delegates of Local 926 are “employees” within the meaning of

Title VII. With respect to the officers, the district court

acknowledged that they are responsible for the daily operations

of Local 926, but concluded that they were not “employees”

because “they ‘answer to no one except themselves.’” Appellees’

App’x 122. However, this finding conflicts with facts in the

record, including that the President has the authority to

schedule meetings and require the officers to attend, enforce the

laws of the union, determine an individual’s eligibility to

become an officer, and remove officers for poor attendance. In

addition, various officers’ responsibilities include “assist[ing]

the President in the discharge of the official duties,” id. at

                                   4
88, and “report[ing]” to the President non-members who seek to

participate, id. at 90. These facts could suggest that the

officers reported to the President. Accordingly, since the record

contains evidence showing that two of the three Johnson & Higgins

factors may have been satisfied, we believe that a reasonable

juror could find that the officers are employees within the

meaning of Title VII. See also Kern v. City of Rochester, 93 F.3d

38, 47 (2d Cir. 1996).

     As for the delegates, the district court found that they

were not employees because, inter alia, their “only function is

to attend city-wide New York District Council meetings twice a

week, receiving approximately $75 per meeting.” Appellees’ App’x

123. The district court also found it relevant that they are

elected, they do not receive a salary, and their work is done in

the delegate body of the District Council rather than in the

local union. However, this conclusion simply takes Tagliaferro’s

characterization at face value and ignores evidence in the record

showing that delegates’ work is not limited to attending District

Council meetings. For example, that evidence shows that, after

District Council meetings, the delegates must attend Local 926

meetings and report back on a lengthy list of issues. In

addition, the evidence indicates that they are required to attend

meetings called by the President and they are paid $150.00 per

meeting. Most importantly, under Local 926's Bylaws, delegates


                                5
are also required to “perform duties and assignments designated

by the President.” Appellees’ App’x at 15. Since delegates may be

required to perform a broad range of duties (including some that

may be seen as traditional employment) and report to the

President, we believe that a reasonable juror could find that

delegates are employees. See Johnson & Higgins, Inc., 91 F.3d at

1539; Kern, 93 F.3d at 47.

     Local 926 also argues that, even if its officers and

delegates were employees, it would not be liable because Title

VII applies only to any employer “who has fifteen or more

employees for each working day in each of twenty or more calendar

weeks in the current or preceding calendar year.” 42 U.S.C.

§ 2000e(b). The test for whether an employer “has” an “employee”

is whether the employer has an employment relationship with the

employee on the day in question, and not whether the employee

actually performs work or receives compensation on the day in

question. See Walters, 519 U.S. at 206. Thus, the number of board

meetings the officers and delegates attend is not dispositive if

they are Local 926's payroll—and the plaintiff has proffered a

number of employment-related documents indicating that they are.

Moreover, given the broad scope of the duties described in Local

926's Bylaws, it is not at all clear that their work is confined

to the days on which they attend meetings.




                                6
     For the foregoing reasons—and drawing all permissible

factual inferences in favor of Frederick—it cannot be said, on

the present factual record, that Local 926 was entitled to

judgment as a matter of law. See Gonzalez, 728 F.3d at 154.

Accordingly, the district court’s judgment is VACATED and the

case is REMANDED for further proceedings.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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