In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2113

JAMES D. SOLON,

Plaintiff-Appellant,

v.

LARRY S. KAPLAN, individually and as partner

in the firm of KAPLAN, BEGY & VON OHLEN;

ROBERT C. VON OHLEN, individually and as

partner in the firm of KAPLAN, BEGY & VOH OHLEN;

FRED C. BEGY, III, individually and as partner

in the firm of KAPLAN, BEGY & VOH OHLEN; et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 2888—Samuel Der-Yeghiayan, Judge.

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ARGUED DECEMBER 9, 2004—DECIDED FEBRUARY 15, 2005

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Before FLAUM, Chief Judge, and BAUER and WILLIAMS,

Circuit Judges.

FLAUM, Chief Judge. James Solon filed this suit under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., alleging that his former law partners Larry Kaplan,

Robert von Ohlen, and Fred Begy terminated his interest in

their firm in retaliation for his opposition to sexual harassment. The district court granted summary judgment in

favor of defendants, concluding inter alia that Kaplan was
2 No. 04-2113

not an “employee” as defined by 42 U.S.C. § 2000e-3(a) and

therefore not protected by Title VII. For the reasons stated

herein, we affirm.

I. Background

On September 1, 1989, Solon joined the law firm of Adler,

Kaplan & Begy as a partner. The partnership agreement, as

amended January 1, 1993, named Solon as one of eight

general partners. It provided that each general partner

would fund an equal share of the firm’s capital interest, be

liable for an equal proportion of the firm’s debts, and have

an equal voice in the management of the firm and the

conduct of its business. The allocation of income among the

general partners, the need for additional capital contributions, and financial commitments in excess of $5,000 would

be decided by a majority vote of the general partners, with

each entitled to cast one vote. A two-thirds vote would be

required for amendments to the partnership agreement,

dissolution of the firm, or the involuntary termination of

any general partner. New general or special partners could

be brought into the firm only by unanimous vote. Special

partners would have no equity interest or voting rights, and

could be terminated by a simple majority vote of the general

partners.

As a general partner, Solon paid a total of $50,000 in

capital contributions to the firm over the course of his

tenure. He received an allocated share of its income, attended compensation meetings with the other general

partners, and was privy to daily cash reports and other

sensitive financial information. None of the special partners

or associates received these benefits.

On December 31, 1994, three general partners voluntarily

left the firm. Solon drafted a separation agreement specifying that he and four others would continue as general

partners under the terms of the 1993 partnership agree-
No. 04-2113 3

ment. The next day, the firm changed its name to Kaplan &

Begy, and plaintiff was named managing partner. In 1996,

another general partner departed, leaving Solon, Larry

Kaplan, Fred Begy, and Robert von Ohlen as the remaining

general partners. In 1997, von Ohlen was added as a named

partner and the firm became Kaplan, Begy & von Ohlen

(“KBV”). As of January 1, 1998, a total of twenty-one

lawyers, including general partners, special partners, and

associates, worked at the firm.

As managing partner, Solon was the only general partner

authorized to draw on all of the firm’s bank accounts. He

signed checks in that capacity to pay rent and distribute

profits. He had extensive knowledge of KBV’s financial

condition, handled its relationship with LaSalle Bank, and

applied for and signed financing agreements as managing

partner. He also served as the point of contact with the

firm’s landlord and acted as trustee of the firm’s 401(k)

account. On January 18, 1998, Solon stepped down as

managing partner, but continued to direct some administrative matters, signing a revolving letter of credit with

LaSalle Bank, and looking for new office space when the

firm’s lease expired.

In August 1998, Kaplan and von Ohlen approached Begy

about their desire to terminate Solon’s interest as a general

partner. Over lunch one afternoon, the three agreed to

remove plaintiff as a general partner, but considered

allowing Solon to stay on as a salaried administrator or to

work for Begy as an independent contractor. In October,

Begy advised Solon of the partners’ decision to terminate

his interest as of December 31, 1998. Begy presented Solon

with the options of working as an administrator or an

independent contractor. Solon rejected these alternatives

and left the firm in January 1999.

Solon contends that von Ohlen pressed for his ouster

because he had spoken out against von Ohlen’s alleged
4 No. 04-2113

sexual harassment of two of the firm’s secretaries. Kaplan

and von Ohlen assert that they wanted to remove Solon

from the partnership because they had lost confidence

in his legal, rainmaking, and administrative skills. They

state that von Ohlen never sexually harassed either

secretary, and that Solon could not have reasonably

believed to the contrary. Begy asks us to affirm on the

ground that Title VII does not protect Solon, and takes

no position regarding whether von Ohlen harbored retaliatory motives.

Plaintiff filed this suit against the firm and von Ohlen,

Kaplan, and Begy individually. His amended complaint

alleges violations of Title VII, the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.,

and supplemental state-law claims. Begy, who was pushed

out of the partnership after Solon was removed, filed

cross-claims against von Ohlen, Kaplan, and the firm for

indemnification, partner indemnification, and a declaratory

judgment.

The district court granted summary judgment in favor

of defendants on the Title VII and ADEA claims. It concluded that: (i) Solon was an employer, not an employee,

and therefore was not protected by Title VII or the ADEA;

and (ii) plaintiff failed to establish a prima facie case under

either statute. The district court declined to exercise

supplemental jurisdiction over Solon’s state-law claims or

Begy’s cross-claims, and dismissed them without prejudice.

Solon appeals the grant of summary judgment as to his

Title VII claim only.

II. Discussion

Summary judgment is appropriate where the evidence

demonstrates that “there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

review a district court’s grant of summary judgment de
No. 04-2113 5

novo, construing all facts and reasonable inferences in favor

of the non-moving party. Luckie v. Ameritech Corp., 389

F.3d 708, 713 (7th Cir. 2004).

Section 704(a) of Title VII provides in relevant part that

“it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an

unlawful employment practice by this subchapter.” 42

U.S.C. § 2000e-3(a). The parties agree, and we assume

without deciding, that Title VII does not protect employers against retaliation. See EEOC v. Severn Trent

Servs., Inc., 358 F.3d 438, 445 (7th Cir. 2004) (stating in

dicta that Title VII does not prohibit retaliation against

employers). Cf. Schmidt v. Ottawa Med. Ctr., 322 F.3d 461,

468 (7th Cir. 2003) (ADEA does not protect employers);

EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 698

(7th Cir. 2002) (same). Solon argues that the district court

erred in granting summary judgment, however, because

there are genuine factual disputes regarding whether he is

an employee rather than an employer, and whether he

established a prima facie case of retaliation. We agree

with the district court that Solon is an employer as a matter

of law, and do not reach the latter issue.

Title VII defines “employee,” subject to exceptions not

relevant here, as “an individual employed by an employer.”

42 U.S.C. § 2000e(f). Recent Supreme Court precedent

sheds light on this circular definition. See Clackamas

Gastroenterology Assocs. v. Wells, 538 U.S. 440 (2003). In

Clackamas, the Court addressed whether shareholderdirectors of a professional corporation counted as “employees” towards the fifteen-employee threshold for covered

employers under the Americans with Disabilities Act of

1990 (“ADA”). Id. at 442; 42 U.S.C. § 12111(5). Because it

found the ADA’s definition of “employee” circular, the Court

looked to the common-law definition of the master-servant

relationship, focusing on the element of control. Clackamas,
6 No. 04-2113

538 U.S. at 448. It highlighted six non-exhaustive factors as

relevant to whether the shareholder-directors were employees:

Whether the organization can hire or fire the individual

or set the rules and regulations of the individual’s work

Whether and, if so, to what extent the organization

supervises the individual’s work

Whether the individual reports to someone higher in

the organization

Whether and, if so, to what extent the individual is able

to influence the organization

Whether the parties intended that the individual be an

employee, as expressed in written agreements or

contracts

Whether the individual shares in the profits, losses, and

liabilities of the organization.

Id. at 449-50 (quoting 2 Equal Employment Opportunity

Commission Compliance Manual § 605:0009 (2000)).

“[W]hether a shareholder-director is an employee depends

on ‘all of the incidents of the relationship . . . with no one

factor being decisive.’ ” Id. at 451 (quoting Nationwide Mut.

Ins. Co. v. Darden, 503 U.S. 318, 324 (1992)).

The factor test announced in Clackamas applies to this

case. Although the Court focused on the meaning of the

term “employee” under the ADA rather than Title VII, both

statutes define “employee” in nearly identical language. See

42 U.S.C. §§ 12111(4), 2000e(f) (both defining “employee,”

subject to exceptions not relevant here, as “an individual

employed by an employer”). The Court signaled that its

analysis would extend to Title VII cases by noting that it

was resolving a conflict among the Circuits that was “not

confined to the particulars of the ADA.” Clackamas, 538

U.S. at 444 n.3 (citing Title VII and ADEA cases as evi-
No. 04-2113 7

dence of the split). Moreover, the framework is not limited

to the narrow question of whether a shareholder-director is

an employee. The six factors were selected because they

provided guidance in resolving the more general issue of

whether an individual “is an employee or, alternatively, the

kind of person that the common law would consider an

employer.” Id. at 445 n.5. Indeed, the source of the

factors—an EEOC compliance manual— identifies them as

relevant to whether “partners, officers, members of boards

of directors, and major shareholders qualify as employees.”

Id. at 449 (citing 2 EEOC Compliance Manual §§ 605:0008-

605:00010 (2000)). The Court also made clear that its test

would determine whether someone was an employee both

for purposes of the fifteen-employer threshold and in

deciding whether a plaintiff could bring a claim. See

Clackamas, 538 U.S. at 446 n.6. Cf. Schmidt, 322 F.3d at

464 (cited with approval in Clackamas, 538 U.S. at 446 n.6)

(holding one framework applicable to both questions). In

sum, the analysis presented in Clackamas applies to the

question presented here: whether a partner is an employee

entitled to sue for retaliation under Title VII.

Turning to the facts of this case, no reasonable juror could

find that Solon was an employee of the firm. By 1998, Solon

was one of only four general partners. The partnership

agreement allowed for his involuntary termination only by

a two-thirds vote of the general partners, meaning that the

other three had to agree unanimously to remove him.

Holding one quarter of the voting power, Solon also exercised substantial control over how to allocate the firm’s

profits, and whether to require additional capital contributions, make financial commitments, amend the partnership

agreement, and dissolve the firm. Because special or

general partners could be added to the firm only by a

unanimous vote of the existing general partners, Solon

possessed a unilateral veto power over new admissions. In

addition to his voting rights, Solon held an equity interest
8 No. 04-2113

in the firm, shared in its profits, attended partnership

meetings, and had access to private financial information.

Each of these benefits distinguished him from the firm’s

special partners and associates. Solon’s broad authority as

trustee of the firm’s 401(k) account and as its managing

partner also supports the conclusion that he was an

employer. And though he stepped down as managing

partner a few months before being voted out of the firm, he

continued to handle the firm’s banking needs and landlord/tenant issues.

Solon maintains, nevertheless, that he was not an

employer because he exercised no real control as a general partner or managing partner. Plaintiff asserts that

defendants ignored the partnership agreement so frequently that it no longer had any legal effect, and that any

leverage conferred to him by the agreement was illusory.

Solon identifies two instances when defendants allegedly

failed to observe the terms of the agreement. First, plaintiff

contends that defendants should have held a formal

meeting to debate whether he would be removed from the

firm. Instead, defendants met over lunch without notifying

Solon, gave him no opportunity to defend himself, and never

officially voted for his ouster. In fact, Solon asserts that

only Kaplan and von Ohlen voted to remove him, while

Begy dissented.

The partnership agreement, however, does not demand a

formal meeting, notice, or a hearing before removing

a general partner. Defendants’ decision to proceed informally is not evidence that the agreement had no legal

effect. Moreover, the evidence shows that Begy agreed to

remove Solon. In a January 13, 1999 memorandum written

by Solon, plaintiff recounts that Begy had notified him in an

October 1998 meeting “that the partners had decided

to terminate my equity interest in the firm,” and that

Begy had advised “that this decision had been reached after

a series of partnership meetings.” The memorandum states
No. 04-2113 9

that Solon and Begy met again on December 23, 1998 and

January 12, 1999 to discuss the options of working as an

administrator or independent contractor. During those

meetings, Solon told Begy that the alternatives were

unworkable “given the earlier decision to terminate my

equity interest.” It is undisputed that Solon never called for

an official meeting to challenge his termination. Had Begy

dissented, he would not have repeatedly advised Solon that

the partners had terminated his interest, nor would

plaintiff have accepted the sentiments of only two of the

four general partners as final.

Second, Solon asserts that defendants routinely ignored

the agreement when distributing firm profits. For example,

he alleges that he was barred from attending some end-ofyear partner compensation meetings. The record shows,

however, that Solon was excluded from only one compensation meeting that occurred in 1999, after he had been

terminated as a general partner and been divested of his

right to attend. Solon also testified during his deposition

that decisions made at compensation meetings that he

attended were sometimes later changed at informal meetings in his absence. Nevertheless, plaintiff concedes that he

was given an opportunity to call for a meeting of all of the

general partners to revisit the issue. He did not request a

meeting because he believed he could not persuade the

others to change their minds. Neither example cited by

Solon is evidence that defendants ignored the partnership

agreement, much less did so routinely.

Plaintiff also argues that he had no control over the firm

because he was supervised closely by the other partners,

who made all of the key decisions about how to staff cases,

bring in new business, and steer the firm without consulting him. The record does not support this contention.

Solon had substantial control over the firm; control that

he exercised in fact as managing partner, and control that
10 No. 04-2113

he had the right to exert by virtue of the partnership

agreement. Plaintiff’s assertion that he consulted with his

fellow partners before making major decisions may demonstrate that he was passive, but it does not show that he was

powerless. Nor does his contention that he was outvoted

undermine the conclusion that he was an employer. See

Schmidt, 322 F.3d at 476 (“[T]he mere fact that lately

[plaintiff’s] preferences on shareholder-compensation

proposals have not secured the majority opinion of his

fellow shareholders does not alter the fact that with each

vote he has exercised this right to control. Even though

[plaintiff] rejected the current plan because he would be

affected by its passage, he nevertheless had the opportunity

to participate in revising and voting on it.”).

Plaintiff was one of four general partners who, by virtue of his voting rights, substantially controlled the direction of the firm, his employment and compensation, and the

hiring, firing, and compensation of others. He played an

active role in the operation of the firm as trustee of its

401(k) account, as managing partner, and informally

thereafter. Under the facts of this case, he was an employer

as a matter of law.

III. Conclusion

For the reasons stated herein, we AFFIRM the district

court’s grant of summary judgment.
No. 04-2113 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-15-05