NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 16

- 1765

__________ RUBY URGENT,

Appellant

v. UNITED STATES MARSHALS SERVICE

__________ On Appeal from the District Court of the V irgin Islands

( D.C. No. 1

- 13

- cv
- 00091) District Judge: Honorable Harvey Bartle , III

Argued May 10 , 2017
BEFORE: AMBRO , COWEN , and NYGAARD , Circuit Judges

( Opinion Filed : August 11, 2017 )

__________ OPINION *

__________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Vincent A. Colianni, II, Esq. [ Argued ] Vincent A. Colianni, Esq. Colianni & Colianni 1138 King Street Christiansted, VI 00820 Attorney s for Appellant Marleigh D. Dover, Esq. United States Department of Justice Civil Division Room 7210 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Dana Kaersvang, Esq

. [Argued] United States Department of Justice Room 7209 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Douglas N. Letter, Esq. United States Department of Justice Civil Division Room 7513 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Sonia McNe il, Esq. United States Department of Justice Civil Division Room 7234 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Angela P. Tyson

- Floyd, Esq. Office of United States Attorney 1108 King Street Suite 201 Christiansted, VI 00820 Attorneys for Appellee3

NYGAARD, Circuit Judge

.
Ruby Urgent, an applicant for a Court Security Officer (CSO) position , sued the
United States Marshal s Service alleging that it violated Ti tle VII . She contends her application was rejected by the Marshals in retaliation for a discrimination claim Urgent ’s
friend filed five years prior

. Because we conclude that Urgent was not an appl icant for employment in the federal government , we will affirm the order of the District Court granting summary judgment in favor of the Marshals. 1
MVM , Inc. , a private contractor , supplied CSOs to work in federal courthouses. Urgent submitted her application to MVM for a CSO position in 2011. MVM interviewed Urgent, evaluated her re ferences , and determined she met the minimum requirements for the position. MVM then gave her appl ication to the Marshals so they could conduct a background investigation. Deputy Marshal Darby Kirby was assigned
th is task in August 2011. Urgent told the Marshals that she lived alone. But t he i nvestigation revealed that
Diedre Finch 2 and Finch’s son lived with Urgent

. Finch was a former Lead Court Security Officer (LCSO) who was fired by MVM five years prior. Kirby included all of
this information in the “Special F actor s ” section of her investigation report.

1 We have jurisdiction under 28 U.S.C. § 1291. We give plenary review to a district court's order granting summary judgment , and we apply the same standard that the district court applied. Carvalho

- G re vious v. Delaware State University, 851 F .3d 249, 256 (3d Cir,. 2017). 2 She wa s f

ormerly known as Diedre Valmont.4

The deadline for completing the investigation was Octo ber 14, 2011 . O n October 5, 2011, Kirby told Urgent she needed to sign a n additional authorization so the Marshals
could review an internal affairs file from the Virgin Islands Police Department , Urgent’s former employer

. Urgent complied with this request on October 11 but the Police Department did not transmit the file in time to meet the October 14 deadline. O n October
14 , Kirby submitted Urgent’s background investigation report, though incomplete, to t he
Marshals ’ Judicial Security Inspector , Daniel Winfield

. Winfield mistakenly believed that Urgent had been u ncooperative about supplying
authorizations and errantly conclud ed that she caus ed the incomplete investigation. He recommended to his superviso r, Reggie Bradshaw, that the deadline for completing Urgent’s report should not be extended. This foreclosed Kirby’s attempt to supplement the report two weeks later , after she received the internal affairs file. O n November 15,
2011 , LCSO Gregory Evans notified Urgent that she did not pass the background investigation and was disqualified for the CSO position. A former CSO subsequently
told her that she was not hired because she lied on her application about living alone. Urgent maintains she did not l ie and that it was a misunderstanding

. Urgent filed a n Equal Employment Opportunity complaint with the Department of
Justice alleg ing age and sexual discrimination

. Urgent also checked a box on the EEO complaint indicating she was asserting a reprisal claim

. S he then retracted it explaining she did not understand the meaning of “reprisal.” But l ater Urgent asserted to an EEO investigator that the Marshals intentionally failed her on her background investigation to5

retaliate against Finch who, Urgent s aid, had filed a sexual discrimination lawsuit against MVM five years prior.
The Agency concluded in a final decision on May 21, 2013 , that the evidence did not support Urgent’s allegations of age and sexual disc riminatio n. The Agency noted her
remarks a bout Finch and Finch’s lawsuit. But i t also commented in its analysis that even if she was right

— that the Marshals refused to hire her because of her friendship with
Finch

— she did not p roffer enough evidence to show their relationship fell within a protec ted category. Urgent filed this ca se with the District Court , pursuant to 42 U.S.C. § 2000 e
- 16, 3 focusing only on her cla im that the Marshals retaliated against her

. 4 She maintained that
she was forced to “pass through the gauntlet” of the Marshals ’ bac kground check , giving them control over the hiring and firing of CSOs. She contend ed that this control was dispositive evidence that she was an applicant for federal employment. The District Court acknowledged the unique circumstance here: a fed eral age ncy conducting background checks on behalf of a private employer. But it reasoned that , even assuming
the Marshals did contro l aspects of the hiring process , the rest of the recor d

— including Urgent’s own admissions about MVM being her employer

— showed she was an applicant

3 “A ll personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, reli gion, sex, or national origin.” 42 U.S.C. § 2000e

- 16. 4 T he Marshals assert that Urgent did not exhaust her retaliation claim because she retracted her EEO reprisal claim . However, the Agency comments in its final decision on Urgent ’s references to Finch , and its inclusion of this information in its analysis indicate s it was, at a minimum, aware of the gist of her retaliation claim. Therefore, we do not regard this claim as waived.6

to be an employee of MVM, not the Marshals

. 5 T he District Court decided section
2000e

- 16 did not authorize this lawsuit. Urgent now appeals the District Court’s grant of summary judgment in favor of
the Marshals . She reiterates the ar guments she made before the District Court and says it erred by restricting section 2000e

- 16 to only those who “literally” applied to a federal
agency. W e disagree with Urgent’s characterization of the District Court’s decision. But, e ven if we assume

— so lely for purposes of summary judgment

— that the background check gives the Marshals complete control of the d ecision to hire or reject CSO applicants , we still cannot find any reason to disturb the ju dgment of the District Court. Urgent premises her clai m on the fact that she was only an applicant . Because of this, she argues, the Title VII employer analysis should be collapsed to look only at who has the power to hire and fire CSOs. We are not persuaded. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S . 318 (1992); Faush v. Tuesday Morning , Inc. , 808 F.3d 208, 214 (3d Cir. 2015)

. In Title VII claims, w e look to the factors set out in Darden , which generally focus on ‘“the level of control the defendant[s]

. . . exerted over the plaintiff .”’ Covington v. International Association of Approved Basketball Officials , 710 F.3d 114, 119 (3d Cir. 2013) . T his includes an inquiry into ‘“ which entity paid [the employees’] salaries, hired and fired them, and had control over their daily employment activities. ” ’

5 The District Court highlighted Urgent’s concession that she submitted her application to MVM. The District Court a lso pointed out that Urgent signed a document as part of her application acknowledging that MVM would hire her “to work on their behalf” and that she could not “at any time represent [herself] as an employee o f [the Marshals].”7

Faush , 808 F.3d at 214 (quoting Covington , 710 F.3d at 119)

. No one factor in the
Darden analysis is decisive. Darden , 503 U.S. at 324.
Here t he Marshals established that they do not pay the CSOs and that a site supervisor emp loyed by the private cont ractor performs daily supervision of the CSOs at
the courthouse

. Urgent conceded in her complaint, in her briefing , and at oral argument
that MVM pays , trains , and provides daily sup er vis ion of the CSOs. 6 Therefore, t he undisputed evidence shows that t wo of three central factors in the Darden analysis do not support a conclusion that the Marshals could be considered an employer

. On this record , we are convinced that MVM, not the Marshals , is Urgent’s sole employer for purposes of
Title VII

. 7
Because we conclude that Urgent was an appl icant to be an employee of a private
contractor, rather than an employee of the federal government, we must rule that section
2000e

- 16 does not authorize Urgent to bring this lawsuit

. Accordingly, we will not reach
the meri ts of her discrimination claim. For all of these reasons, we will affirm the order of the District Court.

6 In her reply brief, Urgent notes that the Marshals established employment standards for CSOs, monitors these standards, and can fire CSOs if they do not meet those standards. Even if we accept, for purposes of summary judgment, that this is a proper characterization of the Marshal s’ efforts and authority, this evidence is still insufficient to ground a reasonable inference that the Marshals exercised daily or routine supervision over the CSOs. 7 With this record, o ur assessment would not change even if we agreed with Urgent that a joint

- employer analysis is appropriate here. See Wilson v. MVM , Inc., 475 F.3d 166, 173 (3d Cir. 2007)

.