                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 12-2886
                                       ___________

                                     JASON SCOTT,
                                              Appellant

                                             v.

                          UPS SUPPLY CHAIN SOLUTIONS
                       ____________________________________

                     On Appeal from the United States District Court
                                for the District of Delaware
                         (D.C. Civil Action No. 1-10-cv-00929)
                     District Judge: Honorable Richard G. Andrews
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 3, 2013

               Before: RENDELL, FISHER and GARTH, Circuit Judges

                               (Opinion filed: May 3, 2013)
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Jason Scott (“Scott”), proceeding pro se, appeals from the District Court’s opinion

granting summary judgment in favor of Appellee UPS Supply Chain Solutions (“UPS”).

For the reasons that follow, we will affirm the District Court’s order.
       Scott began working for Kelly Services, a temporary staffing agency, in 2000. In

November, 2008, Scott accepted a temporary work assignment from Kelly Services to

perform billing and collections at UPS’ Newark, Delaware office. He executed an

agreement stating that he was an employee of Kelly Services, not UPS. (Dkt. No. 61, Ex.

5, pp. 11-12.) Scott was paid by Kelly Services and reported to a Kelly Services

supervisor. That supervisor was in charge of his vacation and sick leave requests, and

was also the person Scott contacted if he was going to be late or absent from his

assignment at UPS. Scott did not have access to the UPS building and had to be admitted

by the receptionist after ringing a door bell.

       Scott was late for, and failed to report to, his UPS assignment on several

occasions. After UPS discovered that he falsified a time entry, Kelly Services advised

Scott that his work assignment at UPS was terminated. He then continued to receive

other work assignments from Kelly Services. Scott, however, believed that he was

terminated from the UPS assignment due to his sexual orientation. He filed a complaint

against UPS alleging that he was subject to discrimination on the basis of gender

stereotyping, in violation of Title VII of the Civil Rights Act, and on the basis of his

sexual orientation, in violation of the Delaware Discrimination in Employment Act

(“DDEA”). UPS filed a motion for summary judgment, arguing that Scott could not

prove that he was an employee for purposes of Title VII or the DDEA. By order entered

June 6, 2012, the District Court granted UPS’ motion, and Scott timely appealed.




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       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a district court’s grant of summary judgment. Sulima v. Tobyhanna Army Depot,

602 F.3d 177, 184 (3d Cir. 2010). Summary judgment is appropriate if, viewing the

record in the light most favorable to the non-moving party, there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c).

       We agree with the District Court that the pertinent facts are undisputed. (Dkt. No.

68, p. 8.) The issue is whether the facts establish that Scott was, or was not, an employee

of UPS as a matter of law.1 To assert a claim under Title VII of the Civil Rights Act,

Scott must first prove that he was an employee of UPS, and not of Kelly Services, his

temporary staffing agency. See Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113,

127-28 n.5 (3d Cir. 1998) (stating that, as under Title VII, “independent contractors are

not employees within the meaning of the ADEA”). In order to determine whether a

person is an employee for purposes of Title VII, the common law of agency and the

traditional master-servant doctrine applies. See Nationwide Mut. Ins. Co. v. Darden, 503

U.S. 318, 322-24 (1992). To that end, the court should consider

       the hiring party’s right to control the manner and means by which the
       product is accomplished [;] . . . the skill required; the source of the
       instrumentalities and tools; the location of the work; the duration of the

       1
        Scott does not meaningfully dispute the District Court’s conclusion that he was
not a UPS employee. He only makes the unsupported assertion that the relationship
between Kelly Services and UPS “can be compared to a contractor and subcontractor.”
(Appellant’s Br. at 7.)


                                             3
       relationship between the parties; whether the hiring party has the right to
       assign additional projects to the hired party; the extent of the hired party’s
       discretion over when and how long to work; the method of payment; the
       hired party’s role in hiring and paying assistants; whether the work is part
       of the regular business of the hiring party; whether the hiring party is in
       business; the provision of employee benefits; and the tax treatment of the
       hired party.

Id. at 323-24 (citations omitted).

       The District Court found that, under Darden, Scott was not an employee of UPS.

After reviewing the record, we agree with that assessment. The record demonstrates that

Scott worked for UPS for about ten months; that he remained employed by Kelly

Services after his UPS assignment ended; that Kelly Services determined his rate of pay

and paid him; and that Kelly Services terminated his UPS assignment. Additionally,

Scott applied to Kelly Services, filled out its job application, and signed an

acknowledgement that he was an employee of Kelly Services, not UPS. Kelly Services

was in charge of monitoring his daily attendance, vacation, sick leave, and performance

evaluations. Finally, Scott did not have employee access to the UPS facility, and had to

be admitted by the receptionist every day that he reported to work. The District Court

properly granted UPS’ summary judgment motion because there was no genuine issue of

material fact as to whether Scott was an employee of UPS.2




       2
           The Title VII standards are virtually identical to those of the DDEA.


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