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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                     FILED
                                                                    May 30, 2013

                                   No. 12-30274                     Lyle W. Cayce
                                                                         Clerk

RACHEL JUINO,

                                      Plaintiff-Appellant, Cross-Appellee,
v.

LIVINGSTON PARISH FIRE DISTRICT NO. 5,

                                      Defendant-Appellee, Cross-Appellant.



                Appeals from the United States District Court
                     for the Middle District of Louisiana


Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Plaintiff-Appellant Rachel Juino (“Juino”) appeals from the district court’s
dismissal of her claim of sexual harassment under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). The district court ruled that
Juino, a volunteer firefighter, was not an “employee” within the meaning of Title
VII. The existence of an employment relationship in the volunteer context is an
issue of first impression in this circuit. For the following reasons, we AFFIRM.
                                         I.
      Livingston Parish Fire District No. 5 (“District 5”) is a political subdivision
of the state of Louisiana that primarily relies on volunteers to provide fire and
emergency services. From November 2009 to April 2010, Juino was a volunteer
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                                            No. 12-30274

firefighter with District 5. Juino claims that during her tenure, fellow firefighter
John Sullivan (“Sullivan”) subjected her to sexual harassment on several
occasions. Juino allegedly reported Sullivan’s conduct to superiors, but claims
that no disciplinary action was taken. Juino terminated her services with
District 5 on April 2, 2010.
        After not receiving a right-to-sue letter from the Equal Employment
Opportunity Commission (“EEOC”) within six months of filing her claim, Juino
filed suit in the district court, alleging sexual harassment and retaliation under
Title VII; violations of the Louisiana Employment Discrimination Law, La. R.S.
§ 23:301 et seq.; and violations of the Louisiana whistleblower statute, La. R.S.
§ 23:967 et seq. Juino also asserted state law claims for assault, battery, and
intentional infliction of emotional distress.
        District 5 moved for partial summary judgment, claiming that it was not
an “employer” for purposes of Title VII because it had only three paid
“employees” in 2010 and, as a result, it did not satisfy Title VII’s fifteen-
employee minimum requirement. Alternatively, District 5 maintained that,
assuming it was an “employer” for purposes of Title VII, Juino’s status as a
volunteer rendered her Title VII and state law claims non-cognizable. Juino
opposed the motion, contending that District 5 was an “employer” because its
membership roster included between 50 and 70 firefighter/members who
provided firefighting service and, like her, received similar benefits.
        The district court treated District 5’s motion for partial summary
judgment as a motion to dismiss for lack of subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1) by concluding that the minimum “employee” requirement
was a jurisdictional issue and dismissing the case on this basis.1 With respect

        1
          On cross-appeal, District 5 contends that the district court erred in construing its motion for
partial summary judgment as a motion to dismiss for lack of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1). We conclude that the district court erred, as Arbaugh v. Y & H Corp. states: “the
threshold number of employees for application of Title VII is an element of a plaintiff’s claim for relief,

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to the merits of the case, the district court noted that this circuit has not adopted
a test for evaluating the employment relationship in the volunteer context, but
stated its preference for the Second Circuit’s threshold-remuneration test as
articulated in O’Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir. 1997). Pursuant
to this test, courts analyze, as a threshold matter, whether the plaintiff-
volunteer has received remuneration supporting a plausible employment
relationship. The district court also prudently analyzed Juino’s claim under this
circuit’s “economic realities/common law control test,” which is applied in
resolving the employee-independent contractor conundrum. Under both tests,
the district court concluded that Juino was not an “employee” for purposes of
Title VII. The district court declined to exercise supplemental jurisdiction over
the remaining state law claims. Juino now appeals.

                                     II.
       We review the district court’s grant of summary judgment de novo.
Admiral Ins. Co. v. Ford, 607 F.3d 420, 422 (5th Cir. 2010) (citation omitted).
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). We must view all facts and evidence
in the light most favorable to the non-moving party when considering a motion
for summary judgment. Dameware Dev., L.L.C. v. Am. Gen. Life Ins. Co., 688
F.3d 203, 206-07 (5th Cir. 2012) (citation omitted).




not a jurisdictional issue.” 546 U.S. 500, 516 (2006). We therefore review this appeal on the merits of
the motion for summary judgment.




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                                        III.
                                         A.
      Pursuant to Title VII, it is illegal “for an employer to fail or refuse to hire
or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1).
Therefore, Title VII prohibits sexual harassment that takes the form of a
tangible employment action, such as a demotion or denial of promotion, or the
creation of a hostile or abusive working environment. Lauderdale v. Tex. Dep’t.
of Criminal Justice, Institutional Div., 512 F.3d 157, 162 (5th Cir. 2007) (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998)) (other citation
omitted).
      In order to be subject to liability pursuant to Title VII, an employer must
have at least fifteen 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 “employee” under Title VII is defined in pertinent part as “an
individual employed by an employer.” 42 U.S.C. § 2000e(f). The Supreme Court
has noted that this definition “is completely circular and explains nothing.”
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (describing same
definition under ERISA). “Recognizing the circularity in such a definition, the
Supreme Court explained that ‘when Congress has used the term ‘employee’
without defining it, we have concluded that Congress intended to describe the
conventional master-servant relationship as understood by common-law agency
doctrine.’” Arbaugh v. Y&H Corp., 380 F.3d 219, 226 (5th Cir. 2004) rev’ d on
other grounds by 546 U.S. 500 (2006) (quoting Darden, 503 U.S. at 322-23). The
Supreme Court has stated,
            In determining whether a hired party is an employee
            under the general common law of agency, we consider


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                                  No. 12-30274

            the hiring party’s right to control the manner and
            means by which the product is accomplished. Among
            the other factors relevant to this inquiry are the skill
            required; the source of the instrumentalities and tools;
            the location of the work; the duration of the
            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.

Darden, 503 U.S. at 323-24 (quoting Cmty. for Creative Non-Violence v. Reid, 490
U.S. 730, 751-52 (1989)) (other citation omitted).
      We apply the “economic realities/common law control test,” a variation of
the common law agency test, in determining whether a party is an employee or
an independent contractor. See Diggs v. Harris Hosp.–Methodist, Inc., 847 F.2d
270, 272 (5th Cir. 1988) (citation omitted). The economic-realities portion of the
test asks whether putative employees, “as a matter of economic reality, are
dependent upon the business to which they render service.” Id. at 272 n.3
(citation omitted). The common law control portion of the test, which courts
should emphasize over the economic realities portion, assesses “the extent to
which the one for whom the work is being done has the right to control the
details and means by which the work is to be performed.” Id. at 272 (citing
Mares v. Marsh, 777 F.2d 1066, 1067 (5th Cir. 1985)). We have stated that the
following factors are pertinent to the analysis:
            (1) the kind of occupation, with reference to whether the
            work usually is done under the direction of a supervisor
            or is done by a specialist without supervision; (2) the
            skill required in the particular occupation; (3) whether

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              the “employer” or the individual in question furnishes
              the equipment used and the place of work; (4) the
              length of time during which the individual has worked;
              (5) the method of payment, whether by time or by the
              job; (6) the manner in which the work relationship is
              terminated [,] i.e., by one or both parties, with or
              without notice and explanation; (7) whether annual
              leave is afforded; (8) whether the work is an integral
              part of the business of the “employer”[,] (9) whether the
              worker accumulates retirement benefits; (10) whether
              the “employer” pays social security taxes; and (11) the
              intention of the parties.

Id. at 272-73 (citation omitted).
       “In most cases where an attempt has been made to discern the contours
of the ‘conventional master-servant relationship,’ it has been because a court has
been asked to consider whether, under a particular statute, a party is an
employee or an independent contractor.” O’Connor, 126 F.3d at 115 (citations
omitted); see, e.g., Darden, 503 U.S. at 322-23 (considering ERISA, 29 U.S.C. §
1132 (a)); Reid, 490 U.S. at 739-40 (considering Copyright Act of 1976, 17 U.S.C.
§ 101); Diggs, 847 F.2d at 272 (considering Title VII); Broussard v. L.H. Bossier
Inc., 789 F.2d 1158, 1160-61 (5th Cir. 1986) (considering Title VII). As this court
has not determined the test for volunteers, our sister circuits provide persuasive
authority.2




       2
         District courts within this circuit appear to split on whether remuneration should be
an independent antecedent requirement in determining if one is a covered employee under
Title VII. Compare Noah v. Cmty. Place, No. 3:09-CV-594, 2011 WL 237701, at *2 (S.D. Miss.
Jan. 24, 2011) (stating that “economic realities/common law control test” is the appropriate
test in determining whether a medical trainee was an “employee” under Title VII), with Moran
v. Harris Cnty., No. H-07-582, 2007 WL 2534824, at *1-2 (S.D. Tex. Aug. 31, 2007) (concluding
that whether a reserve deputy constable received actual financial benefits was a threshold
requirement in determining whether he was an “employee” under Title VII).


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                                       B.
      Cases from other circuits considering the presented issue have split into
two camps. The Second, Fourth, Eighth, Tenth, and Eleventh Circuits have
adopted the threshold-remuneration test. Under this test, courts conduct a two-
step inquiry by requiring that a volunteer first show remuneration as a
threshold matter before proceeding to the second step – analyzing the putative
employment relationship under the common law agency test. Remuneration
may consist of either direct compensation, such as a salary or wages, or indirect
benefits that are not merely incidental to the activity performed. On the other
hand, the Sixth and Ninth Circuits view remuneration as only one,
nondispositive factor in conjunction with the other common law agency test
factors. For reasons discussed below, we adopt the threshold-remuneration test
and hold that Juino is not an “employee” within the meaning of Title VII.
                                     C.
      The Eighth Circuit’s decision in Graves v. Women’s Professional Rodeo
Association, Inc., 907 F.2d 71 (8th Cir. 1990), and the Second Circuit’s decision
in O’Connor, 126 F.3d 112, are the leading cases for the threshold-remuneration
cohort.
      In Graves, the Eighth Circuit addressed whether the membership list of
the Women’s Professional Rodeo Association (WPRA) could be construed as a list
of employees for purposes of Title VII. 907 F.2d at 72. In that case, Graves filed
a Title VII action, alleging sex discrimination because he was denied
membership into the WPRA. Id. at 71. Graves contended that the WPRA was
an “employer” for purposes of Title VII because its members were “employees”
of the WPRA. Id. at 72. In rejecting Graves’s argument, the Eighth Circuit
applied the dictionary definition of employee, employer, and employ, and
concluded that,



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             Central to the meaning of these words is the idea of
             compensation in exchange for services: an employer is
             someone who pays, directly or indirectly, wages or a
             salary or other compensation to the person who
             provides services–that person being the employee.
             Compensation by the putative employer to the putative
             employee in exchange for his services is not a sufficient
             condition, but it is an essential condition to the
             existence of an employer–employee relationship.
Id. at 73.
       The Graves court then observed,
             The relationship between WPRA and its members
             simply bears no resemblance to that between an
             employer and employee within the accepted usage of
             those terms: no compensation is made, only prize
             money won–and that is not supplied by the alleged
             employer nor does the recipient necessarily come from
             the postulated class of employees. . . . Only by skipping
             this crucial and elementary initial inquiry–whether
             there exists an employment relationship . . . can Graves
             make an implausible argument sound even marginally
             plausible.
Id.
       Accordingly, the Graves court found it “unnecessary” to proceed to the
second step of the inquiry as members of the WPRA did not receive
compensation. Id. at 74. The court explained that “[c]ourts have turned to
analyses such as the ‘economic realities’ test and ‘right to control’ test under
Title VII only in situations that plausibly approximate an employment
relationship.” Id.
       Similarly, the Second Circuit in O’Connor considered whether an unpaid
intern who filed a claim for sexual harassment under Title VII was an
“employee.” 126 F.3d at 113-14. Although the Second Circuit acknowledged the
Supreme Court’s pronouncement that the common law agency test should be
used when “employee” is not adequately defined by Congress, the O’Connor court


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distinguished the application of the common law agency test in the volunteer
context. To this end, the court stated,
             Both parties on appeal (and the district court below)
             addressed themselves to the question of whether or not
             O’Connor was an employee within [the common law
             agency] framework. However, we think that this
             analysis is flawed because it ignores the antecedent
             question of whether O’Connor was hired by Rockland
             for any purpose. As the Supreme Court suggests, the
             common feature shared by both the employee and the
             independent contractor is that they are “hired
             part[ies],”[Reid, 490 U.S. at 751-52], and thus, a
             prerequisite to considering whether an individual is one
             or the other under common-law agency principles is
             that the individual have been hired in the first
             instance. That is, only where a “hire” has occurred
             should the common-law agency analysis be undertaken.
O’Connor,126 F.3d at 115 (second alteration in original).
      In accordance with Graves, the Second Circuit also noted that courts use
the common law agency test “‘only in situations that plausibly approximate an
employment relationship.’” Id. (quoting Graves, 907 F.2d at 74). The O’Connor
court explained that “[w]here no financial benefit is obtained by the purported
employee from the employer, no ‘plausible’ employment relationship of any sort
can be said to exist because . . . ‘compensation . . . is an essential condition to the
existence of an employer-employee relationship.’” Id. at 115-16 (quoting Graves,
907 F.2d at 73) (other citations omitted). Because O’Connor did not receive
remuneration such as a salary, wages, health insurance, vacation, or sick pay,
the Second Circuit held O’Connor was not an “employee.” Id. at 116.
      Consistent with Graves and O’Connor, other circuits have held that a
volunteer was not an “employee” when there was no showing of remuneration.
See, e.g. McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d 974, 979 (10th Cir.
1998) (holding a medical student who did not receive remuneration did not


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establish an employment relationship for purposes of Title I of the Americans
with Disabilities Act (ADA)); Llampallas v. Mini-Circuits, Lab, Inc.,163 F.3d
1236, 1243-44 (11th Cir. 1998) (holding an officer-director who did not receive
any compensation was not an “employee” within the meaning of Title VII).
      In addition to the previously cited cases where there was no showing of
remuneration such as a salary or wages, some circuits have not precluded a
showing of remuneration in the absence of a salary or wages where a volunteer
has received significant indirect benefits. The Fourth Circuit’s opinion in
Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993),
and the Second Circuit’s opinion in Pietras v. Board of Fire Commissioners of
Farmingville Fire District, 180 F.3d 468 (2d Cir. 1999), are illustrative in this
regard.
      The facts of Haavistola involved a Title VII action by a volunteer
firefighter who did not receive a salary or wages, but instead received indirect
job-related benefits. 6 F.3d at 221. The Fourth Circuit acknowledged that
“[c]ontrol loses some of its significance in the determination whether an
individual is an employee in those situations in which compensation is not
evident.” Id. at 220. Although recognizing that Haavistola did not receive direct
compensation, the court noted that “[Haavistola] did not affiliate with the
company without reward entirely,” as she received a state-funded disability
pension, survivors’ benefits for dependents, scholarships for dependents upon
disability or death, group life insurance, paramedic certification, tax-exemptions
for unreimbursed travel expenses, reduced-rates on commemorative license
plates, and benefits under the Federal Public Safety Officer’s Benefits Act. Id.
at 221.
      The Fourth Circuit reversed the district court’s summary judgment ruling
that Haavistola was not an “employee,” and remanded the matter for a trier of
fact’s determination of whether Haavistola’s receipt of such benefits constituted

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“indirect but significant remuneration” supporting an employment relationship,
or were “inconsequential incidents of an otherwise gratuitous relationship.” Id.
at 221-22.
      In Pietras, the Second Circuit affirmed a bench trial’s finding that a
volunteer firefighter was a Title VII “employee” when the firefighter did not
receive a salary or wages, but received significant indirect benefits, including a
retirement pension, life insurance, death benefits, disability insurance, and
limited medical benefits. 180 F.3d at 471, 473.
      In sum, the threshold-remuneration line of cases teaches that: (1)
remuneration may consist of direct remuneration, i.e., salary or wages, or
significant indirect benefits that are not incidental to the service performed, i.e.,
job-related benefits; (2) if there is no showing of remuneration, courts will not
proceed to the common law agency test; and (3) if there is remuneration
supporting a plausible employment relationship, courts will proceed to the
common law agency test.
                                         D.
      The Sixth and Ninth Circuits do not view remuneration as a dispositive
factor in evaluating the overall employment relationship.
      In Bryson v. Middlefield Volunteer Fire Department, Inc., the Sixth Circuit
declined to adopt O’Connor’s holding that, to be a “hired party,” a plaintiff must
demonstrate a threshold showing of “significant remuneration.” 656 F.3d 348,
354 (6th Cir. 2011). The Bryson court instead held that remuneration was not
an independent antecedent requirement, but rather was only one nondispositive
factor that should be assessed in conjunction with “all of the incidents of the
relationship.” Id. (citation omitted). The Bryson court remarked that “[t]he
Supreme Court included the term ‘hired party’ in Darden only in a direct quote
from its decision in Reid, and the Reid Court’s use of ‘hired party’ was in the
context of the ‘work for hire’ provision from the Copyright Act.” Id. “Although

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the [Supreme] Court did not define ‘hired party’ in Reid, it did define ‘hiring
party’: ‘By “hiring party,” we mean to refer to the party who claims ownership
of the copyright by virtue of the work for hire doctrine.’” Id. (quoting Reid, 490
U.S. at 739). The Sixth Circuit continued: “We doubt that the [Supreme] Court
would define ‘hiring party’ as such while at the same time considering ‘hired
party’ to carry much more substantive weight in requiring that it be an
individual who received significant remuneration for his services.” Id.
       The Bryson court further explained that “the [Supreme] Court’s
instruction to apply the common law of agency is not limited to when the
individual receives significant remuneration but rather ‘when Congress has used
the term “employee” without defining it.’” Id. (quoting Reid, 490 U.S. at 739-40)
(emphasis in original). Therefore, the Bryson court considered remuneration as
a factor, but followed the Darden Court’s instruction that “‘all of the incidents
of the [putative employment] relationship must be assessed and weighed with
no one factor being decisive.’” Id. (quoting Darden, 503 U.S. at 324) (other
citations omitted).
       In Fichman v. Media Center, the Ninth Circuit considered whether
directors and independent producers of a nonprofit media company were
“employees” under the ADA and the Age Discrimination in Employment Act
(ADEA), and it similarly noted that remuneration was a nondispositive factor.
512 F.3d 1157, 1160 (9th Cir. 2008). The court concluded that directors were not
“employees” under the director-employee test adopted in Clackamas
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003).3

       3
        In Clackamas, the Supreme Court addressed the issue of whether physicians who
engaged in medical practice as shareholders and directors of a professional corporation should
be counted as “employees” for purposes of the ADA. 538 U.S. at 442. The Court noted that
the common law agency test factors were not directly applicable because the Court did not
have to distinguish between independent contractors and employees. Id. at 445 n.5. The
Court remarked, however, that the “common-law element of control is the principal guidepost
that should be followed.” Id. at 448. The Court then described six factors relevant to

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                                               IV.
       After consideration of both approaches, we adopt the threshold-
remuneration test, as we find it uniquely suited to assessing a plausible
employment relationship within the volunteer context. In support, we conclude
that O’Connor is persuasive, i.e., that a volunteer is distinguishable from the
employee-independent contractor situation because there is a prerequisite of a
“hire” in the latter. See O’Connor, 126 F.3d at 115. This point is further borne
out by the fact that a volunteer is generally not an “employee,” and thus no
“hire” has occurred since there is no receipt of remuneration supporting an
employer-employee relationship. See EEOC Compliance Manual § 2-III(A)(1)(c)
(2000), available at http://www.eeoc.gov/policy/docs/threshold.html (“Volunteers
usually are not protected ‘employees.’”); see also O’Connor, 126 F.3d at 115-16
(“Where no financial benefit is obtained by the purported employee from the
employer, no ‘plausible’ employment relationship of any sort can be said to exist
because although ‘compensation by the putative employer to the putative
employee in exchange for his services is not a sufficient condition, . . . it is an
essential condition to the existence of an employer-employee relationship.’”
(quoting Graves, 907 F.2d at 73) (other citations omitted)).
       Like the majority of our sister circuits, we will “turn to common-law
principles to analyze the character of an economic relationship ‘only in situations
that plausibly approximate an employment relationship.’” Id. at 115 (quoting
Graves, 907 F.2d at 74); see also EEOC Compliance Manual § 2-III(A)(1)(c)
(noting that a volunteer may be considered an employee if, “as a result of
volunteer service, s/he receives benefits such as a pension, group life insurance,
workers’ compensation, and access to professional certification . . . .”) (citing


determining whether a director is an employee and explained that “the answer to whether a
shareholder-director is an employee depends on ‘all of the incidents of the relationship . . . with
no factor being decisive.’” Id. at 451 (citation omitted).

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Pietras, 180 F.3d at 473). Lastly, we conclude that it is within the province of
Congress, and not this court, to provide a remedy under Title VII for plaintiffs
in Juino’s position. O’Connor, 126 F.3d at 119 (“[I]t is for Congress, if it should
choose to do so, and not this court, to provide a remedy under . . . Title VII . . .
for plaintiffs in O’Connor’s position.”).
                                            V.
       Turning to the case at hand, Juino contends that she is an “employee”
under Title VII because she received the following benefits while working at
District 5: $2.00 per fire/emergency call; a life insurance policy; a full firefighter’s
uniform and badge; firefighting and emergency response gear; and firefighting
and emergency first-response training.           She also avers that District 5 had a
paramilitary organizational structure with the authority to supervise, hire, fire,
and set applicable rules and regulations of work.
       It is undisputed that Juino did not receive a salary and that she responded
to 39 calls, which resulted in compensation of $78.00.4 She also received a life
insurance policy, a uniform and badge, and emergency/first responders’ training.
Juino’s benefits are unlike the significant indirect benefits received by the
volunteer firefighters in Haavistola and Pietras. We thus conclude, as a matter
of law, that Juino was not an “employee” for purposes of Title VII because she
has failed to make a threshold showing of remuneration. Juino’s benefits are
purely incidental to her volunteer service with District 5. See United States v.
City of New York, 359 F.3d 83, 92 (2d Cir. 2004) (“[R]emuneration need not be
a salary, but must consist of ‘substantial benefits not merely incidental to the




       4
        Juino claims that she received this reimbursement. District 5 contends that, because
Juino was a probationary member of District 5, Juino did not receive this reimbursement
during her time as a volunteer firefighter. For purposes of summary judgment, this court
views this fact in the light most favorable to Juino. See Dameware Dev., L.L.C., 688 F.3d at
206-07.

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                                  No. 12-30274

activity performed.’”) (internal and other citation omitted). On the record before
us, we hold that Juino is not an “employee” within the meaning of Title VII.
                                       VI.
      For the foregoing reasons, we AFFIRM the district court’s judgment
dismissing Juino’s Title VII claim with prejudice.




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