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United States District Court, Southern District of New York

August 13, 2003


The opinion of the court was delivered by: John Martin, District Judge


Plaintiff Milton Wadler brought this action pursuant to 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981") and the New York Human Rights Law, N.Y. Exec. Law § 296 ("NYHRL") alleging that Defendant Eastern Collegiate Athletic Conference ("ECAC") discriminated against him on the basis of race. Defendant has moved for summary judgment on the ground that Plaintiff is not an employee of the ECAC and is therefore not protected by Title VII, Section 1981 or the NYHRL.

Wadler, an African American, is a baseball umpire who officiated games for member colleges of the ECAC from 1983 until 1998. The ECAC is a non-profit corporation that facilitates the participation of its 312 member schools in interscholastic collegiate athletic events. Among the support services provided by the ECAC is the assignment of individuals to officiate member schools' games. [ Page 2]

The Eastern College Baseball Umpire's Bureau ("ECBUB") is the division within the ECAC that assigns umpires to baseball games. The ECBUB selects baseball umpires from the membership of the College Baseball Umpire's Association ("CBUA"), an independent organization unrelated to the ECAC. Member schools that require a baseball umpire to officiate a game pay a fee to the ECBUB. Likewise, CBUA umpires who want to officiate ECAC member baseball games pay a fee to the ECBUB. The ECAC baseball umpire coordinator, working with a schedule of member schools' baseball games and with each qualified umpire's self-reported schedule of available times, then assigns a CBUA umpire to each member game. ECAC policy requires that umpires fulfill every assignment and only seek reassignment in cases of emergency. Failure to adhere to this policy will affect an umpire's rank and the availability of future assignments.

Although member schools directly compensate umpires for their services, the base compensation paid to umpires is a figure set by the ECAC after negotiation with the CBUA. Schools pay umpires a flat fee per game and do not pay social security taxes on behalf of umpires. The formula used by member schools to calculate reimbursement for umpires' travel expenses is also set by the ECAC after negotiation with the CBUA. In addition, the ECAC reviews and approves the travel expenses submitted by umpires for payment by member schools. Umpires do not receive [ Page 3]

retirement or other benefits from either the ECAC or its member schools.

Umpires supply their own uniforms, but do so in compliance with the ECAC's uniform dress code, published after negotiation with the CBUA, which provides detailed regulations for each item of clothing worn. In addition, umpires' hats, outerwear and shirts must display the ECAC logo. Failure to comply with the ECAC's dress code can result in sanctions.

The ECAC also evaluates and reviews umpires' skills and abilities. These evaluations establish an umpire's status and rank within the ECAC and affect an umpire's future assignments.

Plaintiff claims that the ECAC discriminated against him on the basis of race by reducing his schedule of games, not assigning him to playoff games and ultimately removing him from the list of available umpires. Defendant argues that Plaintiff cannot bring this action because he is not an employee of the ECAC.


I. Summary Judgment Standard

Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions . . ., together with the affidavits, . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex [ Page 4]

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2514 (1986).

II. Title VII and the NYHRL*fn1

Title VII makes it an unlawful employment practice for an employer, employment agency or labor organization to "fail or refuse to hire or to discharge any individual" on the basis of "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). Title VII covers employees and not independent contractors. Under the act, an employee is "an individual employed by an employer . . ." 42 U.S.C. § 2000e(f).

Courts apply the common law of agency to determine whether an individual qualifies as an employee under Title VII. Community for Creative Non-violence v. Reid, 490 U.S. 730, 751, 109 S.Ct. 2166, 2178 (1989). In Reid, the Supreme Court articulated the standard for determining whether an individual is an employee:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other [ Page 5]
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 the 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 751-752, 109 S.Ct. at 2178-2179. See also Restatement § 220(2)(setting forth similar factors). Courts need consider only those factors relevant to a particular case. Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 114 (2d Cir. 2000).

"Though no single factor is dispositive, the `greatest emphasis' should be placed on the first factor — that is, on the extent to which the hiring party controls the `manner and means' by which the worker completes his or her assigned tasks." Id. In the Second Circuit, whether an individual is an employee turns, in addition, on whether they have received "direct or indirect remuneration from the alleged employer." Pietras v. Bd. of Fire Comm'rs of the Farmingville Fire Dist., 180 F.3d 468, 473 (2d Cir. 1999). See also York v. Ass'n of the Bar of the City of New York, 286 F.3d 122, 125-126 (2d Cir. 2002); O'Connor v. Davis, 126 F.3d 112, 116 (2d Cir. 1997); Tadros v. Coleman, 717 F. Supp. 996, 1004 (S.D.N.Y. 1989) ("A Title VII plaintiff is only [ Page 6]

an `employee' if the defendant both pays him and controls his work."). Remuneration includes "salary or other wages; employee benefits, such as health insurance; vacation; sick pay; or the promise of any of the foregoing." York at 126 (citing O'Connor at 116).

Plaintiff Wadler did not receive direct or indirect remuneration from the ECAC. The organization did not provide him with a salary, employee benefits or other compensation. However, the ECAC was solely responsible for determining whether the Plaintiff was employed as a college baseball umpire. Although the umpires exercise some control over their own schedules by submitting a list of their available times to the ECAC, they will be employed only if assigned to games by the ECBUB assigning coordinator.

Umpires are skilled workers whose job performance requires training and the exercise of independent judgment. The ECAC does not tell umpires how they should make calls on the field, nor could it, for that matter. But the ECAC evaluates each umpire's game performance and requires umpires to file a post game report if unusual events occur during a game.

The ECAC also regulates umpire's uniforms and notably, requires umpires to display their affiliation with the organization by wearing an ECAC logo on their outerwear. The ECAC also upholds policies and procedures relating to the [ Page 7]

assignment and cancellation of games. Furthermore, the ECAC exerts control over the payment and reimbursement of umpires through negotiation with the CBUB on rates and through review of umpires' reimbursement requests. Finally, the ECAC conducts evaluations and performance reviews of umpires, the results of which affect an umpire's assignment to future games.

While the majority of the Reid factors outlined above, on balance, suggest that the ECAC was Wadler's employer, the most critical factor here is that the ECAC did not compensate Wadler. Although the organization controlled Wadler's work, his affiliation with the organization did not include that "`essential condition' of remuneration." O'Connor v. Davis, 126 F.3d 112, 117 (2d Cir. 1997) (quoting Graves v. Women's Prof'l Rodeo Assoc., 907 F.3d 71, 73 (8th Cir. 1990). The ECAC did not both control Wadler's work and compensate him. See Tadros, 717 F. Supp. at 1004. Recent Second Circuit cases such as York and O'Connor have placed paramount importance on the provision of remuneration by a putative employer to the determination of employee status under Title VII or the NYHRL. Therefore, the ECAC's control of Wadler's work, in the absence of compensation by the ECAC, is not sufficient to render it an employer under Title VII or the NYHRL. Under Second Circuit case law, Wadler functioned as an independent contractor providing services on a [ Page 8]

per game basis to schools upon referral by the ECAC.*fn2


For the foregoing reasons, Defendant's motion for summary judgment on Plaintiff's Title VII and New York Human Rights Law claims is granted. The parties had agreed to limit this motion to the resolution of jurisdictional issues relating to the existence of an employer/employee relationship. It is therefore premature to address Plaintiff's Section 1981 claim. Discovery limited to that issue may proceed.


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