1 Deal named the following State Farm companies: State Farm County Mutual Insurance

Company of Texas, State Farm Fire and Casualty Company, State Farm General Insurance

Company, State Farm Life Insurance Company, State Farm Lloyds Insurance Company, and State

Farm Mutual Automobile Insurance Company. We refer to these companies collectively as "State

Farm."

2 The ADEA defines employer as "a person ... who has twenty or more employees for each

working day in each of twenty or more calendar weeks in the current or preceding calendar year

[and] any agent of such a person." 29 U.S.C. § 630(b). Title VII defines an employer 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, and any agent of such person." 42

U.S.C. § 2000e(b). United States Court of Appeals,

Fifth Circuit.

No. 93-7201

Summary Calendar.

Marlene V. DEAL, Plaintiff-Appellant,

v.

STATE FARM COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, et al.,

Defendants-Appellees.

Oct. 22, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, JONES, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Marlene Deal sued Tom Hunt and State Farm 1 alleging violations of Title VII, 42 U.S.C. §

2000e, et seq., and the Ag e Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, e t seq.

The district court dismissed the suit for lack of jurisdiction. We affirm.

Background

Tom Hunt owns a small indepe ndent insurance agency which sells State Farm insurance

policies. After working for Hunt for fifteen years, Marlene Deal was discharged by him. Deal sued

Hunt and State Farm alleging that the discharge violated Title VII and the ADEA.

Hunt and State Farm moved to dismiss for lack of subjec t matter jurisdiction arguing that

they were not "employers" within the meaning of Title VII or the ADEA. 2 Hunt argued that he wasDetermining whether a defendant is an "employer" under Title VII or the ADEA

involves a two-step process. First, the defendant must fall within the statutory definition.

Second, there must be an employment relationship between the plaintiff and the defendant.

See generally, Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir.1990),

cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991).

3 When selecting a retirement and medical plan for himself and his employees, Hunt chose State

Farm insurance products. Deal incorrectly argued that this meant that State Farm provided her

benefits. not an "employer" under Title VII or the ADEA because he never employed the requisite number of

emplo yees. St ate Farm contended that it could not be Deal's "employer" because there was no

employment relationship between it and Deal. The district court granted the motions. Deal appeals

claiming that the district court erred because (1) she is an employee of State Farm and (2) Hunt is an

agent of State Farm.

Discussion

Dea l's first contention is that State Farm was her employer. In determining whether an

employment relationship exists within the meaning of Title VII and the ADEA, we apply a "hybrid

economic realities/common law control test." F ields, 906 F.2d at 1019 (citing Mares v. Marsh, 777

F.2d 1066 (5th Cir.1985)). The right to control an employee's co nduct is the most important

component of this test. F ields, 906 F.2d at 1019. When examining the control component, we have

fo cused on whether the alleged employer has the right to hire and fire the employee, the right t o

supervise the employee, and the right to set the employee's work schedule. S ee Id. at 1020; M ares,

777 F.2d at 1068. The economic realities component of our test has focused on whether the alleged

employer paid the employee's salary, withheld taxes, provided benefits, and set the terms and

conditions of employment. See Mares, 777 F.2d at 1068.

State Farm did not control Deal, and the economic r ealit ies o f her relationship with State

Farm did not suggest an employer / employee relationship. Hunt was solely responsible for hiring,

supervising, and firing her and setting her work schedule. Deal was also dependent on Hunt as a

matter of economic reality because he paid her salary, withheld taxes from her paycheck, provided

her benefits, 3 and established the terms and conditions of her employment. Therefore, Deal had an

employment relationship with Hunt, not State Farm.4 Cf. Mares, 777 F.2d at 1069 (stating that "the mere fact that [commissary workers] must

comply with certain Army regulations is not enough to make them employees of the Army"). In support of her contention that she is an employee of State Farm, Deal refers to an employee

handbook which Hunt prov ided t o his employees. The handbook states, "We are committed to

comply with all federal and state statutes and regulations." Deal contends that "we" refers to Hunt

and State Farm. Other than her conclusory assertions, she offers no evidence to support her

argument. Even if "we" referred to Hunt and State Farm, this would not be sufficient to establish an

employment relationship between State Farm and Deal. 4

Deal's second theory of jurisdiction is that Hunt is an agent of State Farm. Title VII and the

ADEA define "employer" as a person who has a certain number of employees and any agent of such

person. Although Hunt is a State Farm insurance agent, he is not an agent of State Farm within the

meaning of Title VII and the ADEA. We agree with the other courts that have addressed this issue

and hold that an agent under Title VII and the ADEA must be an agent with respect to employment

practices. S ee York v. Tennessee Crushed Stone Ass'n, 684 F.2d 360, 362 (6th Cir.1982) (finding that

an "agent" for the purposes of Title VII and the ADEA is limit ed to s upervisory or managerial

employees to whom employment decisions have been delegated by an employer); F ike v. Gold Kist,

514 F.Supp. 722 (N.D.Ala.) (holding that Title VII requires an "agency relationship which establishes

an employment nexus"), aff'd without opinion, 664 F.2d 295 (11th Cir.1981); K onieczny v.

Derickson, 43 Fair Empl.Prac.Cas. (BNA) 251, 1987 WL 56671 (S.D.Ill.1987) (holding that a State

Farm insurance agent is not an agent within the meaning of Title VII). Because Hunt was solely and

independent l y responsible for all employment related decisions, he was not acting as State Farm's

agent with respect to employment practices.

For the forgoing reasons, the di strict court's judgment dismissing Deal's claims is AFFIRMED.