PUBLISH

 

UNITED STATES COURT OF APPEALS

Filed 3/28/96 TENTH CIRCUIT

 

WAYDANN LAMBERTSEN, )

)

Plaintiff-Appellant, )

)

v. ) No. 95-4072

)

UTAH DEPARTMENT OF CORRECTIONS, )

GREG JAQUART, PRESTON KAY, RANDY )

SOUTHWICK, BILL EAST, RUBIN NUNLEY, )

CALVIN FOX and LYLE WILDE, )

)

Defendants-Appellees. )

 

Appeal from United States District Court

for the District of Utah

(D.C. No. 94-CV-400)

 

Robert W. Horn, of Robert W. Horn, P.C., of Jackson Hole, Wyoming, for the appellant.

Nancy L. Kemp, Assistant Attorney General, and Jan Graham, Attorney General, of Salt

Lake City, Utah, for the appellees.

 

Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.

 

BRISCOE, Circuit Judge.

 

Plaintiff Waydann Lambertsen filed suit against the Utah Department of

Corrections and various of its employees, alleging sexual discrimination in violation of

Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000 et seq. Plaintiff also asserted

various state law claims against defendants. The district court granted summary judgment
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in favor of defendants on plaintiff’s Title VII claims, and dismissed the remaining state

law claims. Plaintiff appeals.

I.

Plaintiff was hired by the South Sanpete School District (School District) as a

teaching assistant at the Central Utah Academy (Academy), a classroom run by the

School District for eligible inmates of the Utah State Correctional Facility (Correctional

Facility) in Gunnison, Utah. Although administered by the School District, the Academy

was physically housed in the Correctional Facility and plaintiff physically worked at the

Correctional Facility.

The involvement of defendant Utah Department of Corrections (Department) in

the operation of the Academy is limited solely to security and safety concerns. For

example, Department employees patrol and coordinate security access in the classroom to

ensure the safety of School District employees. Likewise, Department employees review

classroom materials and equipment to ensure that they do not pose a security or safety

threat. For security purposes, the Department also conducts a background investigation

on each new School District employee assigned to work at the Academy. Upon

successful completion of the investigation, the School District employee receives a

security identification badge that allows entrance into the Correctional Facility. The

Department requires each School District employee to sign a written document entitled

“Contractor’s Code of Conduct,”which sets forth policies that the School District

employee agrees to follow in working with inmates at the Correctional Facility. 

All other aspects of the operation of the Academy are controlled exclusively by the

School District. In particular, the School District exercises exclusive control over
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supervision, work assignments, evaluations, pay, and employee benefits for School

District employees who work at the Academy. Likewise, the School District provides all

funding for the educational services provided by the Academy.

Plaintiff alleges she was sexually assaulted by an inmate while she was working at

the Academy. She reported the incident to Robert MacGillivray, who is director of the

Academy and is employed by the School District. The Department assigned one of its

employees, Preston Kay, to investigate the incident. According to plaintiff, during and

following Kay’s investigation, Kay and the other individual defendants made numerous

sexually suggestive and/or inappropriate comments, which subjected her to a hostile and

abusive work environment. 

Plaintiff reported defendants’ alleged misconduct to MacGillivray, who in turn

reported the misconduct to Fred Van Der Veur, warden of the Correctional Facility. 

MacGillivray placed plaintiff on administrative leave to relieve her from having to work

in a hostile environment and to give Van Der Veur an opportunity to address the situation

with his staff. At that time, MacGillivray also offered plaintiff a permanent transfer to

one of the other schools in the district.

Plaintiff filed a formal charge of discrimination with the Utah Anti-Discrimination

Division and the Equal Employment Opportunity Commission, who assumed jurisdiction

over the matter and issued a notice of right to sue. Plaintiff subsequently filed this action. 

Defendants filed a motion to dismiss plaintiff’s complaint. The district court issued an

order advising the parties that the court intended to treat defendants’ motion to dismiss as

a motion for summary judgment and inviting the parties to submit additional evidence

relevant to the motion.
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Plaintiff filed a pleading entitled “Memorandum in Traverse of Summary

Judgment.” Plaintiff also filed a motion to amend her complaint to assert a cause of

action against defendants under 42 U.S.C. § 1983. Defendants responded to plaintiff’s

motion to amend her complaint. The district court issued a written memorandum granting

summary judgment in favor of defendants on plaintiff’s Title VII claims, but declined to

exercise jurisdiction over plaintiff’s pendent state law claims. The court issued a separate

order denying plaintiff’s motion to amend her complaint.

II.

A. Plaintiff’s Title VII claims

In granting summary judgment in favor of defendants on plaintiff’s Title VII

claims, the district court adopted the “hybrid” test, see Oestman v. National Farmers

Union Ins. Co., 958 F.2d 303, 305 (10th Cir. 1992) ("hybrid" test applied to determine

whether insurance agent an "employee" within meaning of Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq.), to determine whether plaintiff was an

“employee” of the Department. The court concluded:

As plaintiff notes, the critical feature which defines the employeremployee relationship between plaintiff and defendant Utah Department of

Corrections (“DOC”) is control. It is undisputed that DOC conducted a

security check of plaintiff as a condition of her entry into the prison facility

and that DOC was responsible for security in the prison classroom. To the

extent plaintiff was subject to security measures within the prison grounds,

she was subject to control by DOC. However, the undisputed facts also

reflect the following: (1) Plaintiff was hired by the School District; (2) The

School District paid her salary and benefits; (3) Work assignments, hours of

work and performance evaluations were established and governed by the

School District; (4) Plaintiff’s supervisor at the Gunnison Academy was an

employee of the School District; (5) The “Contractor’s Code of Conduct”

plaintiff was required to sign by DOC sets forth behavior of “independent

contractor[s]” while operating within the prison grounds. In sum, the court

finds that the facts reflect that while DOC controlled prison security, the

School District controlled the hiring, firing, wages and benefits of school
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employees who were assigned to the prison school. Although DOC

exercised some control over plaintiff for security purposes when she was

within the confines of the prison, ultimate control over her employment was

exercised by the School District. The court, therefore, concludes that DOC

was not plaintiff’s employer for purposes of Title VII.

Appellant’s br. append., Memorandum Decision at 8.

On appeal, plaintiff contends the district court erred in concluding she was not an

employee of the Department for purposes of Title VII. Specifically, plaintiff argues the

court’s legal conclusions were based upon disputed facts and that summary judgment was

inappropriate in light of the disputed facts. Further, plaintiff argues the district court

misconstrued the “means and manner” of control exerted by the Department over her

work. Plaintiff also argues the court failed to consider the “totality of the circumstances”

in determining whether she was an employee of the Department. Finally, plaintiff argues

the court erred in failing to apply the test espoused in McKenzie v. Davenport-Harris

Funeral Home, 834 F.2d 930, 933-34 (11th Cir. 1987), for determining whether the

School District and the Department could be considered a single employer for Title VII

purposes. 

We review the district court’s grant of summary judgment de novo, applying the

same standard as the district court under Fed. R. Civ. P. 56(c). Universal Money Centers.

v. American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 115 S.Ct. 655

(1994). Summary judgment is appropriate if “there is no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). We examine the factual record and reasonable inferences therefrom in the light

most favorable to the nonmoving party. Id. If there is no genuine issue of material fact in

dispute, we must determine whether the district court correctly applied the law. Applied
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Genetics Intern. v. First Affiliated Securities, 912 F.2d 1238, 1241 (10th Cir. 1990).

Title VII provides, in pertinent part, that it is “an unlawful employment practice for

an employer--(1) 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). 

An employer under Title VII is “a person engaged in an industry affecting commerce who

has fifteen or more employees,” 42 U.S.C. § 2000e(b), and an employee is "an individual

employed by an employer." 42 U.S.C. § 2000e(f). 

In determining whether a plaintiff has demonstrated an employee-employer

relationship for purposes of federal anti-discrimination legislation, courts have generally

applied either the economic realities test or the hybrid test. Oestman, 958 F.2d at 305

(discussing both tests). Under the hybrid test, the main focus of the court’s inquiry is the

employer’s right to control the “means and manner” of the worker’s performance. Id.

However, the hybrid test also looks at other factors, including: (1) the kind of occupation

at issue, 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 the employer or the employee furnishes the equipment

used and the place of work; (4) the length of time the individual has worked; (5) the

method of payment, whether by time or by job; (6) the manner in which the work

relationship is terminated; (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
1

 We note the focus of the test as applied in the typical case is to determine whether the

plaintiff is an employee or an independent contractor. Here, the test was applied to determine

which of two entities was plaintiff's employer.

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intention of the parties. Id.

1

 No single factor is conclusive. Rather, the courts are to look

at the totality of circumstances surrounding the working relationship between the parties. 

Id.

Although the Supreme Court has not interpreted the “employer” or “employee”

provisions of Title VII, the Court has interpreted a definition of "employee" in ERISA

identical to that found in Title VII. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318

(1992). In Darden, the Court concluded that when Congress provides no more than a

nominal definition, courts must apply common-law agency principles to determine

whether a worker qualifies as an employee. Id. at 323. Under the common-law agency

approach, although no one factor is decisive, the primary focus is whether the hiring party

controls the means and manner by which work is accomplished. Id. To date, at least

three circuits have concluded that “the common-law agency approach discussed in

Darden is in practice largely indistinguishable from the hybrid approach” typically

utilized in Title VII cases. Folkerson v. Circus Circus Enterprises, No. 93-17158, 1995

WL 608432 at *3 (9th Cir. 1995); Wilde v. County of Kandiyohi, 15 F.3d 103, 106 (8th

Cir. 1994) ("We see no significant difference between the hybrid test and the commonlaw test."); Frankel v. Bally, 987 F.2d 86, 90 (2d Cir. 1993). 

We agree with the Second, Eighth, and Ninth Circuits that there "is little

discernible difference between the hybrid [approach] and the common law agency

[approach]." Frankel, 987 F.2d at 90. Both approaches emphasize the right of the hiring

party to control the means and manner by which the work is accomplished, but allow
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consideration of other factors as well. Id. In particular, both approaches allow for

consideration of economic factors in appropriate circumstances. Id.; Wilde, 15 F.3d at

106. Accordingly, we conclude it was proper for the district court to apply the hybrid

approach for purposes of determining whether the Department was plaintiff's employer

under Title VII.

We further conclude the district court correctly found that the Department was not

plaintiff’s employer. Although the Department physically controlled plaintiff’s entry into

the Correctional Facility and provided security for plaintiff and other employees of the

Academy, the uncontroverted evidence indicates that plaintiff’s employer was the School

District. Most notably, there is simply no evidence in the record from which a finder of

fact could conclude the Department controlled the means or the manner in which plaintiff

performed her day-to-day work. Rather, the uncontroverted evidence makes clear that the

major terms of plaintiff’s employment (e.g., work assignments, pay, etc.) were controlled

solely by the School District.

As for plaintiff’s assertion that the School District and the Department should be

considered a single employer for Title VII purposes, we note that plaintiff did not argue

this theory before the district court and is precluded from asserting it on appeal. See, e.g.,

In re Walker, 959 F.2d 894, 896 (10th Cir. 1992) (as a general rule, appellate court will

not consider issues on appeal not raised before district court). Even ignoring this

procedural bar, we find no merit to plaintiff’s argument. To date, the single employer

theory espoused by the Eleventh Circuit in McKenzie, 834 F.2d at 933-34, has not been

expressly adopted in this circuit. See Evans v. McDonald's Corp., 936 F.2d 1087, 1090

(10th Cir. 1991) ("We need not decide whether to adopt the reasoning of McKenzie and
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like cases, because [plaintiff] cannot sustain a cause of action even under the theory she

advances."). Even assuming, for purposes of argument, that the single employer theory is

viable in this circuit, plaintiff has failed to present evidence demonstrating that the School

District and the Department were a single employer. 

Under the single employer test, the court evaluates four factors to determine

whether two entities are so interrelated that it is appropriate to consider them one

employer under Title VII. The factors are: (1) interrelated operations; (2) common

management; (3) centralized control of labor relations; and (4) common ownership. 

Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir. 1983). Of these, centralized control

over labor relations is the most important factor. Trevino v. Celanese Corp., 701 F.2d

397, 404 (5th Cir. 1983). Here, there is simply no evidence to satisfy any of the first three

factors. Most notably, there is no evidence that would allow a factfinder to conclude

there was centralized control of labor relations between the School District and the

Department.

B. Denial of plaintiff’s motion to amend complaint

The district court denied plaintiff’s motion to amend her complaint “for the

reasons outlined by defendants in their responsive pleading.” On appeal, plaintiff claims

the court abused its discretion in denying her motion to amend.

Rule 15(a), which governs the amendment of pleadings, provides:

A party may amend the party’s pleading once as a matter of course at any

time before a responsive pleading is served or, if the pleading is one to

which no responsive pleading is permitted and the action has not been

placed upon the trial calendar, the party may so amend it at any time within

20 days after it is served. Otherwise a party may amend the party’s
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 pleading only by leave of court or by written consent of the adverse party; and

leave shall be freely given when justice so requires.

The denial of a motion to amend a complaint is reviewed for an abuse of

discretion. Long v. United States, 972 F.2d 1174, 1183 (10th Cir. 1992). Although a

district court should normally set forth its reasons for exercising its discretion and

denying a motion to amend, the court’s failure to do so is harmless when the record

contains an apparent reason justifying the denial of a motion to amend. Id. In addition,

we are "free to affirm a district court decision on any grounds for which there is a record

sufficient to permit conclusions of law, even grounds not relied upon by the district

court." United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir. 1994). 

Reviewing the record, we conclude there are several apparent reasons justifying

the denial of plaintiff’s motion to amend. The motion to amend was filed far beyond the

permissive period set forth in Rule 15(a). Here, the motion to amend was filed eight

months after defendants filed their motion to dismiss. Moreover, plaintiff failed to

provide an adequate explanation for her delay in seeking the amendment. See Pallottino

v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (holding that untimeliness in

itself can be a sufficient reason to deny leave to amend). Plaintiff apparently did not file a

copy of her proposed amended complaint with her motion for leave to amend, as required

by the local rules of the district court. As the district court was not provided with a copy

of the proposed amended complaint, it would have been impossible for the court to

determine its viability. We conclude that the district court did not abuse its discretion in

denying plaintiff’s motion to amend.
2

 Plaintiff does not specifically challenge on appeal the dismissal of her pendent state law

claims. Counsel stated at oral argument that plaintiff is presently pursuing these claims in state

court.

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C. Eleventh Amendment immunity

Plaintiff questions whether the Department and the individual defendants in their

official capacities have immunity under the Eleventh Amendment for claims brought

under Title VII. We do not address this question because it is based upon a misreading of

the district court’s memorandum. The district court dismissed plaintiff’s Title VII claims

solely because plaintiff could not demonstrate that she had an employer-employee

relationship with the Department. Although the court briefly discussed the question of

Eleventh Amendment immunity, that discussion applied only to plaintiff’s pendent state

law claims.2

III.

The judgment of the district court is AFFIRMED.