IN THE UNITED STATES COURT OF APPEALS
                      FOR THE EIGHTH CIRCUIT
                    _________________________

                       Nos. 02-1433/02-1443
                    _________________________

Tricia Lerohl,
     Plaintiff-Appellant,

v.

Friends of the Minnesota Sinfonia, et al.,
     Defendants-Appellees.
___________________________________________

Shelley Hanson,
     Plaintiff-Appellant, 

v. 

Friends of the Minnesota Sinfonia, et al.,
     Defendants-Appellees.
     ________________________________________________________

           Appeal from the United States District Court
                  for the District of Minnesota
    _________________________________________________________

    BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
      AS AMICUS CURIAE IN SUPPORT OF APPELLANTS' PETITION
       FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
   _________________________________________________________
                                   
                                   NICHOLAS M. INZEO
                                   Acting Deputy General Counsel

                                   PHILIP B. SKLOVER
                                   Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY       LORRAINE C. DAVIS
    COMMISSION                     Assistant General Counsel
1801 L Street, N.W.
Washington, D.C. 20507             SUSAN R. OXFORD
(202) 663-4719                     Attorney

                                        
     
                                 
                       TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . .i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii

RULE 35(b) STATEMENT . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . 2

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . .3

PANEL OPINION. . . . . . . . . . . . . . . . . . . . . . . . . .5

ARGUMENT

     IN DETERMINING WHETHER PLAINTIFFS ARE "EMPLOYEES" 
     COVERED UNDER FEDERAL EMPLOYMENT DISCRIMINATION 
     LAWS OR INDEPENDENT CONTRACTORS WHO ARE NOT COVERED, 
     THE PANEL APPLIED THE "CONTROL" FACTOR IMPROPERLY AND 
     PLACED UNDUE EMPHASIS ON THE SINFONIA'S FAILURE TO 
     WITHHOLD TAXES. . . . . . . . . . . . . . . . . . . . . . . 7
 
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF SERVICE

ADDENDUM: PANEL OPINION          

                     TABLE OF AUTHORITIES  

Cases

Cilecek v. Inova Health Sys. Serv., 
     115 F.3d 256 (4th Cir. 1997) . . . . . . . . . . . . . .  10

Community for Creative Non-Violence v. Reid, 
     490 U.S. 730 (1989) . . . . . . . . . . . . . . 5, 6, 8, 10

Daggitt v. United Food & Comm'l Wkrs. Int'l Union, 
     245 F.3d 981 (8th Cir. 2001) . . . . . . . . . . . . . .  10

Eisenberg v. Advance Relocation & Storage, Inc., 
     237 F.3d 111 (2d Cir. 2000) . . . . . . . . . . . .  10, 14

Hunt v. State of Missouri, 297 F.3d 735 (8th Cir.), reh'g 
     and reh'g en banc denied (8th Cir. 2002) . . .  1, 8, 10, 13

Jenkins v. Southern Farm Bur. Cas., 
     307 F.3d 741 (8th Cir. 2002) . . . . . . . . . . . . . 1, 13

Lambertsen v. Utah Dep't of Corrections, 
     79 F.3d 1024 (10th Cir. 1996) . . . . . . . . . . . . . . 10

Lilley v. BTM Corp., 958 F.2d 746 (6th Cir. 1992) . . . . . . . 1

Nationwide Mutual Ins. Co. v. Darden, 
     503 U.S. 318 (1992) . . . . . . . . . . . . . .  5, 6, 7, 8

Schwieger v. Farm Bur. Ins. Co., 
     207 F.3d 480 (8th Cir. 2000) . . . . . . . . .  8, 9, 10, 15

Statutes

42 U.S.C.  2000e, et seq. . . . . . . . . . . . . . . . . .  2

42 U.S.C.  12101, et seq. . . . . . . . . . . . . . . . . .  2

Miscellaneous
  
Restatement (2d) of Agency  220 . . . . . . . . . . . . .  8, 9

                       RULE 35(b) STATEMENT

     This case presents a question of exceptional importance.  Even
though the Sinfonia completely controls the manner and means by
which Sinfonia players accomplish the end product (orchestral
concerts), the panel decision held that "control" should not be
accorded any special weight and that the plaintiffs were not
"employees" entitled to Title VII and ADA protections primarily
because Sinfonia players retained the discretion to decline some
Sinfonia performances and to play for other musical organizations
or perform solo.  The panel's decision not only misconstrues the
"control" factor, but is inconsistent, in this respect, with Hunt
v. State of Missouri, 297 F.3d 735 (8th Cir.), reh'g and reh'g en
banc denied (8th Cir. 2002), in which another panel of this Court
stated that although "no single factor is decisive," "the right to
control the manner and means by which tasks are accomplished is a
primary consideration."  Id. at 741. 
     The panel's decision is also inconsistent with another recent
decision of this Court, Jenkins v. Southern Farm Bur. Cas., 307
F.3d 741 (8th Cir. 2002).  There the Court recognized that although
normally a judge will be able to determine employment status as a
matter of law, "where there is a genuine issue of fact or
conflicting inferences can be drawn from the undisputed facts, ...
the question is to be resolved by the finder of fact ...."  See id.
at 743 (quoting as "instructive" Lilley v. BTM Corp., 958 F.2d 746,
750 n.1 (6th Cir. 1992) (emphasis added)).  In the present case, the
panel, like the district courts below, improperly resolved disputed
questions of material fact against the plaintiffs, drew inferences
against the plaintiffs from undisputed facts where conflicting
inferences could be drawn, and ignored entirely other facts that
the plaintiffs presented in the record below.  The approach adopted
by the panel, if allowed to stand, would significantly undermine
the protections of federal employment discrimination laws by
excluding workers that Congress intended to be protected under
these laws.  Panel rehearing or en banc consideration is necessary
to secure uniformity of this Court's decisions, as well as to
address an issue of exceptional importance.

                     STATEMENT OF THE ISSUES

1.  Whether a court should give primary consideration to the
employer's control over the manner and means by which the work is
accomplished in determining who is an "employee" for purposes of
coverage under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
 2000e, et seq. ("Title VII"), the Americans with Disabilities
Act, 42 U.S.C.  12101, et seq. ("ADA"), and other federal laws
that protect employees from discrimination in the workplace. 
2.  Whether the panel in this case improperly resolved disputed
questions of fact and improperly drew inferences from undisputed
facts where more than one inference could be drawn, instead of
reserving those questions for the trier of fact. 

                            BACKGROUND

     The Minnesota Sinfonia is an orchestra that performs seventy
or so free classical music concerts per year in public schools and
other locations accessible to families with young children and
persons of limited means.  Lerohl v. Friends of Minnesota Sinfonia,
slip op. at 3.  Several times each year the Sinfonia's executive
director and conductor, Jay Fishman, would schedule a series of
concerts and then mail the schedule to the Sinfonia's "regular" or
"first call" musicians, i.e., those twenty-five to thirty
professional musicians identified in the Sinfonia's public website
as comprising the Sinfonia.  Appellants Appendix ("Apx") 50, 58-61. 
These "regular" players were expected to attend the rehearsals and
perform in the concerts listed in the schedule unless they notified
the Sinfonia that they were unavailable.  See, e.g., Apx65-66.<1>
     Sinfonia musicians could opt out of concerts they had agreed
to play as long as they gave two weeks notice and arranged for an
eligible substitute player (i.e., someone selected or approved by
the Sinfonia).  To remain a "regular" member of the Sinfonia,
however, players had to accept the "vast majority of the [Sinfonia]
work."  Slip op. at 3.  Fishman also required "regular" players to
attend organizational meetings and to participate in fundraising
events and public awareness activities on behalf of the Sinfonia,
without any additional pay, and prescribed a behavior standard that
"regular" Sinfonia musicians had to follow at all times.  Apx34,
46, 64, 68-69.  
     Plaintiffs Tricia Lerohl and Shelley Hanson were "regular"
Sinfonia players (playing French horn and clarinet, respectively)
from 1990 until 1999, when Fishman terminated them.  Slip op. at 4. 
Before their termination, Lerohl and Hanson, like the other
Sinfonia players, were paid weekly based on both the number and
duration of the Sinfonia rehearsals and concerts they played the
prior week.  Apx69.  The Sinfonia also made regular, union-scale
payments to the musicians union pension fund on behalf of all
Sinfonia players, including Lerohl and Hanson.  Slip op. at 3. 
Although not noted in the panel's opinion, the union pension fund
specified that contributions could be accepted only on behalf of
"employees."  The record includes Fishman's written certification
to the pension fund administrator certifying that Sinfonia players
are "employees" of the Sinfonia.  Apx104-05.
                                

                         PANEL DECISION

     The panel held that Lerohl and Hanson were not "employees" of
either the Sinfonia or Jay Fishman and on that basis affirmed the
district courts' grant of summary judgment below.  In reaching this
conclusion, the panel emphasized that "Lerohl, Hanson, and the
other regular' Sinfonia musicians retained the discretion to
perform elsewhere and to accept or reject playing in a particular
concert series" and even "to back out of specific performances
after agreeing to perform in a series if they arranged for suitable
substitutes." Slip op. at 9. The panel attached minimal
significance to the fact that Fishman considered Lerohl and Hanson
to be "regular" Sinfonia players, characterizing "regular" status
as simply an "inducement" offered to "preferred performers" which
did not change the fact that "the musicians retained control over
the extent to which they committed their available professional
time to the Sinfonia."  Id. 
     Applying the multi-factor common-law agency test for
determining "employee" versus "independent contractor" status, EEOC
had argued that although all of the factors must be taken into
account, the primary consideration is the "hiring party's right to
control the manner and means by which the product is accomplished." 
See, e.g., Community for Creative Non-Violence v. Reid, 490 U.S.
730, 751-52 (1989); Nationwide Mutual Ins. Co. v. Darden, 503 U.S.
318, 323-24 (1992).  EEOC further argued that the "control" factor
weighed heavily in favor of finding Sinfonia players to be
"employees" of the Sinfonia because Fishman exercised total control
over the manner and means by which Sinfonia players accomplished
the end product (Sinfonia concerts).
     The panel rejected this approach, characterizing it as
"contrary to the Supreme Court's repeated admonition that no factor
is determinative and all aspects of the parties' relationship must
be considered."  Slip op. at 5 (citing Darden, 503 U.S. at 325-26,
and Reid, 490 U.S. at 750-51).  The panel further suggested that in
the context of an orchestra, "control" should not be analyzed based
on the control exerted by a conductor during individual rehearsals
and concerts because "[w]ork by independent contractors is often,
if not typically, performed to the exacting specifications of the
hiring party."  Slip op. at 6.  Instead, the panel held, the
relevant "control" issue is the amount of discretion Sinfonia
musicians retained "to decline particular Sinfonia concerts and
play elsewhere," which the panel referred to as the "freedom-of-
choice principle."  Id. at 8.  The panel also found it "highly
significant" that the Sinfonia did not withhold taxes or provide
any employee benefits other than pension contributions, stating
that Sinfonia musicians "accepted payments structured in a manner
that confirmed their independent contractor status."  Id. at 9.

                            ARGUMENT
     IN DETERMINING WHETHER PLAINTIFFS ARE "EMPLOYEES" COVERED
     UNDER FEDERAL EMPLOYMENT DISCRIMINATION LAWS OR
     INDEPENDENT CONTRACTORS WHO ARE NOT COVERED, THE PANEL
     APPLIED THE "CONTROL" FACTOR IMPROPERLY AND PLACED UNDUE
     EMPHASIS ON THE SINFONIA'S FAILURE TO WITHHOLD TAXES.

     In determining a person's employment status, this Circuit and
several other circuits have recognized that a primary consideration
is the extent to which the hiring party controls the manner and
means by which the hired party accomplishes the end result.  The
panel erred, first, in rejecting this general principle and,
second, in misapplying the "control" factor to these facts.  
a.   First, giving "control" primary consideration under the common
law test is not "contrary to the Supreme Court's repeated
admonition that no factor is determinative and all aspects of the
parties' relationship must be considered," as the panel believed.<2>
EEOC does not contend that "control" always trumps all other
factors; the common law agency test plainly requires that all of
the applicable factors be taken into account.  See Reid, 490 U.S.
at 752; Darden, 503 U.S. at 324; Hunt, 297 F.3d at 741; Schwieger
v. Farm Bur. Ins. Co., 207 F.3d 480, 483-84 (8th Cir. 2000). 
Nevertheless, the statements in Reid and Darden that "all of the
common law factors must be considered" and "no one factor is
determinative" are in no way inconsistent with the notion that
"control" has special significance.  See Hunt, 297 F.3d at 741
(while noting that "no single factor is decisive," recognizing that
"the right to control the manner and means by which tasks are
accomplished is a primary consideration").  The Supreme Court
identified the "control" factor first, and separated it from the
long list of additional factors that follow.  See Reid, 490 U.S.
751 ("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 factors relevant to this inquiry are
....")(citing, in footnote, Restatement (2d) of Agency, 220(1);
other citations omitted; emphasis added); Darden, 503 U.S. at 323
(same).   
     Moreover, the Supreme Court's Reid/Darden test for determining
employment status is based on the Restatement (2d) of Agency  220,
which also highlights the special significance of a hiring party's
control over the manner and means by which the product is
accomplished.  The Restatement states, in  220(1):  "A servant is
a person employed to perform services in the affairs of another and
who with respect to the physical conduct in the performance of the
services is subject to the other's control or right to
control.")(emphasis added).  In  220(2), the Restatement goes on
to list ten additional factors, many of which are reflected in Reid
and Darden.  In comment (d), the Restatement indicates that
"control or right to control the physical conduct of the person
giving service . . . in many situations is determinative."  Thus,
as in Reid and Darden, the Restatement of Agency's special emphasis
on the hiring party's control over how the hired party actually
performs the job strongly implies the overarching significance of
"control" in determining employment status.  
     Indeed, the panel's own decision recognized that some factors
are inevitably more significant than others.  As the panel noted in
its decision, a court's inquiry "requires more than simply tallying
factors on each side and selecting the winner on the basis of a
point score."  Slip op. at 5 (citing Schwieger, 207 F.3d at 487). 
If application of the common law agency test is not simply a
tallying process, then some factors must necessarily be given more
weight than others.  The Reid and Darden decisions, the Restatement
of Agency, and prior decisions of this Court<3> as well as other
circuits<4> all support the conclusion that the control factor is
properly given particular consideration in determining "employee"
versus "independent contractor" status. 
     The "control" that warrants this heightened consideration is
not, however, the hiring party's control over the end product to be
produced, a notion the Supreme Court expressly rejected in Reid. 
See 490 U.S. at 748 ("The hiring party's right to control the
product simply is not determinative."); see generally 490 U.S. at
741-50.  As the panel noted, "[w]ork by independent contractors is
often, if not typically, performed to the exacting specifications
of the hiring party."  See slip op. at 6.  What the Supreme Court
highlighted, instead, and what the Reid Court found lacking between
the Community for Creative Non-Violence and the sculptor hired to
produce a statue, was the hiring party's control over "the manner
and means by which the product is accomplished."       
     The following hypothetical illustrates the difference in the
present context.  Instead of arranging various concert series
throughout the year, the Sinfonia could have simply distributed
grants to individual musicians or groups of musicians and specified
that the money was to be used to fund chamber music concerts in
public schools in Minneapolis.  If, in awarding a particular grant,
the Sinfonia specified the general timeframe (say, the months of
October and November) and the types of music to be played (for
instance, a sampling of baroque, French romantic and American
contemporary), but not the specific pieces to be played, the
specific dates and times of the concerts, or the dates on which
rehearsals were to be conducted, one could conclude that the
Sinfonia had exerted control over the end product (by providing
detailed specifications for the general timeframe and type of music
to be played), but not over the manner and means by which the
product was accomplished, leaving that up to the grantees to
arrange.  In that situation, musicians hired by the grantees to
play in these chamber music concerts would most likely not be
employees of the Sinfonia.    
     Thus, there can be situations where musicians performing in a
conducted band or orchestra are not necessarily "employees."  This
case is different, however.  Plaintiffs Lerohl and Hanson claim
they were employees of the Sinfonia because during the nine years
they played for the Sinfonia on a regular basis, the Sinfonia
controlled not just what they produced (live orchestral music) but
every detail concerning the manner and means by which this music
was produced, including what they played and how they played it,
where and when they rehearsed and performed, what they wore to
performances, and how they conducted themselves not only at
Sinfonia rehearsals and concerts, but between times, as well.  The
panel erred as a matter of law in concluding, on these facts, that
plaintiffs were independent contractors of the Sinfonia.
b.   At the very least, this case presents disputed questions of
fact as well as undisputed facts from which differing inferences
can be drawn, both of which require determination by a trier of
fact, not a court reviewing a summary judgment motion.  For
example, in concluding that Sinfonia players are independent
contractors, the panel relied heavily on the undisputed fact that
Sinfonia players have some discretion to decline a particular
Sinfonia concert and perform in another engagement (as long as they
don't do it too often).<5> It is not uncommon, however, for workers,
especially those in lower income ranges, to work for more than one
employer, a fact that does not preclude finding the worker to be an
"employee" of either hiring party (or both).  Cf. Hunt, 297 F.3d at
742 ("nothing in the law precludes the possibility that a person
may have two or more employers for the same work.").  Likewise, it
is common for employers who utilize workers on a non-fixed work
schedule (like many restaurants that utilize part-time workers with
schedules that vary from week to week) to permit their staff the
flexibility to find a substitute for an assigned shift because of
an unexpected scheduling conflict.  This fact, however, does not
turn the waitress, busboy or hamburger-flipper into an independent
contractor.  Thus, rather than supporting a finding that Lerohl and
Hanson were independent contractors as a matter of law, the fact
that Lerohl and Hanson retained some discretion to decline a
particular Sinfonia concert in order to play another engagement is
an example of an undisputed fact from which differing inferences
can be drawn and which should, therefore, have been left to the
trier of fact to determine.  See Jenkins, 307 F.3d at 743.
     Finally, the panel placed undue reliance on the Sinfonia's
failure to offer any benefits beyond payments into the musicians
union pension fund; failure to withhold income or FICA taxes for
Sinfonia players; and payment with IRS Form 1099 instead of a W-2. 
Admittedly, these are factors to be taken into account.  The
Sinfonia's tax treatment of its players does not, however, warrant
the weight the panel accorded it, because it is too easy for an
employer to manipulate tax treatment in order to achieve a desired
result which may, in fact, be inconsistent with Congress's intended
coverage under federal employment discrimination laws.  See
Eisenberg v. Advance Reloc. & Storage, 237 F.3d 111, 117 (2d Cir.
2000)(because emphasis on "benefits" and "tax treatment" factors
would allow employers "to use individual employment contracts to
opt out of the anti-discrimination statutes. ... courts should not
ordinarily place extra weight on [these factors] and should instead
place special weight on the extent to which the hiring party
controls the manner and means' by which the worker completes her
assigned tasks.")(emphasis in original).<6> Just as an employer "may
not avoid Title VII by affixing a label to a person that does not
capture the substance of the employment relationship," Schwieger,
207 F.3d at 483 (internal quotation omitted), so, too, an employer
may not avoid Title VII and the ADA simply by imposing a tax
treatment that does not reflect the actual employment relationship
between the parties.

                            CONCLUSION  

     For the foregoing reasons, Amicus Curiae EEOC urges this Court
to grant rehearing by the panel or, if necessary, to grant en banc
review of the panel decision in order to correct these mistakes.
                              Respectfully submitted,

                              NICHOLAS M. INZEO
                              Acting Deputy General Counsel

                              PHILIP B. SKLOVER
                              Associate General Counsel

                              LORRAINE C. DAVIS
                              Assistant General Counsel

                              ___________________________________
                              SUSAN R. OXFORD
                              Attorney

                              EQUAL EMPLOYMENT OPPORTUNITY 
                                   COMMISSION
                              1801 L Street, N.W.
DATED:  March 31, 2003        Washington, D.C. 20507
                              (202) 663-4791

          

                      CERTIFICATE OF SERVICE

     I hereby certify that two copies of the foregoing brief have
been served via overnight mailed by Federal Express to:

                    Jill Clark, Esq.
                    Jill Clark, P.A.
                    2005 Aquila Avenue North                
                    Golden Valley, MN 55427-3236
               
                    Fred Finch, Esq.
                    Bassford, Lockhart, Truesdell & Biggs, P.A.
                    33 South Sixth Street, Suite 3550
                    Minneapolis, MN   55440

                         ____________________________
DATED:                   Susan R. Oxford
                         Attorney
                         EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
                         1801 L Street, N.W.
                         Washington, D.C. 20507
                         (202) 663-4791

***********************************************************************
<<FOOTNOTES>>

<1> Although the panel decision states that the players advise the Sinfonia 
whether they agree to play that series after they receive the schedule, see 
slip op. at 3, the record suggests Fishman assumed the regular players were 
available unless they notified the Sinfonia to the contrary.  Apx45-46.

<2> Nor has the Supreme Court rejected this position, as the panel erroneously 
states.  See slip op. at 5 (citing Darden).  In Darden, the United States as 
amicus curiae argued for a modified common-law definition of employee that 
would advance ERISAs underlying remedial purposes.  See 503 U.S. at 325-26 
(citing Brief for United States as Amicus Curiae 15-21).  In other words, the 
government had argued that the test for determining employee status should 
be individually tailored for each federal statute, depending on the statutes 
underlying purpose.  The Supreme Court disagreed and ruled, instead, that where
 Congress defines the term employee as an individual employed by an employer, 
as it has done here, Congress intends to incorporate traditional, common-law 
principles of agency, and does not intend for the meaning to vary from one 
statute to another depending on the underlying purposes of the particular 
legislation in question.  503 U.S. at 323-26. 

<3> See, e.g., Daggitt v. United Food & Comml Wkrs. Intl Union, 245 F.3d 981, 
988 (8th Cir. 2001)(We consider first the nature of the working relationship 
between the parties, particularly the unions right to control the manner and 
means by which the stewards accomplish their tasks.); Schwieger, 207 F.3d at 
484 (control is a primary consideration); Hunt, 297 F.3d at 741 (same).

<4> See, e.g., Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 
114 (2d Cir. 2000)(greatest emphasis should be placed on control); Cilecek v. 
Inova Health Sys. Serv., 115 F.3d 256, 260 (4th Cir. 1997)(common law distinction 
between employee and independent contractor rests, at root, on degree of control exercised by hiring party); Lambertsen v. Utah Dept of Corrections, 79 F.3d 
1024, 1028 (10th Cir. 1996)(control is main or primary focus of courts inquiry).

<5> Although Sinfonia players undisputedly had this discretion, plaintiffs 
presented evidence that the option to decline Sinfonia work was not unlimited.  
For this reason, this case differs from the freedom-of-choice decisions the 
panel cites.  See slip op. at 8-9.

<6> The panel said Eisenberg is readily distinguishable because it involved an 
hourly full-time warehouse worker, not a consultant or free-lance professional.  
Slip op. at 9.  But the fact that the worker in Eisenberg was full-time and Sinfonia players are part-time cannot be significant, since Title VII and the ADA plainly 
extend to part-time, as well as full-time, workers.  Nor can it be significant that 
the worker in Eisenberg was a laborer rather than a professional worker, since the 
panel acknowledges that many professionals, including musicians, work as employees 
rather than as independent contractors.  The only asserted factual distinction left 
is the fact that the worker in Eisenberg was paid by the hour, and the panel states 
that Sinfonia musicians are paid on a per-concert basis.  Id. at 3.  This, however, 
is a disputed fact, since plaintiffs assert they were paid weekly an amount that 
varied depending on both the number and duration of rehearsals and performances that 
week, in what amounted to an hourly rate.  Apx69.  If the panels erroneous belief 
that Sinfonia musicians are payed by the job was the panels basis for distinguishing 
Eisenberg, then the panel erred in stating that the disputed facts, viewed most 
favorably to Lerohl and Hanson, do not affect the panels conclusion.  Id.