PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

LISA M. KNITTER, Plaintiff - Appellant,

v. CORVIAS MILITARY LIVING, LLC, f/k/a Picerne Military Housing, LLC, Defendant - Appellee. No. 13-3027

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRI CT OF KANSAS (D.C. NO. 6:11-CV-01365-JWL)

Randall K. Rathbun (Molly M. Gordon, with him on the briefs), Depew Gillen Rathbun & McInteer, LC, Wichita, Kans as, appearing for Appellant. Manesh K. Rath, Keller and Heckman LLP, Washington, D.C. (Jac quelyn L. Thompson, Keller and Heckman LLP, Washington, D.C., and Stephanie N. Sche ck, Stinson Leonard Street LLP, Wichita, Kansas, with him on the brief), appear ing for Appellee.

Before GORSUCH, MATHESON, and BACHARACH, Circuit Judges.

MATHESON , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### July 15, 2014
Elisabeth A. Shumaker Clerk of Court-2- Lisa Knitter worked as a “handyman” 1 for Lewis General Contracting, Inc. (“LGC”) from March 2010 to October 2010. During this time, LGC’s sole client was Picerne Military Housing, LLC (“Picerne” ), now known as Corvias Military Living,
LLC. 2 Ms. Knitter performed han dyman services exclusively on Picerne properties. Ms. Knitter sued Picerne under Title V II of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Ms. Knitter alleged (1) she was paid lower wages than her male counterparts and (2) Picerne effectively fire d her in retaliation for her complaints of sexual harassment and wage discrimination. She also alleged that (3) after she was fired, Picerne denied her application for vendor status in retaliation for her prior complaints of discrimination. The district court granted summary judgm ent to Picerne, dismissing Ms. Knitter’s Title VII action because Picerne was not her em ployer. The district court also dismissed her claim for retaliatory denial of vendor status because Ms. Knitter did not apply for employment with Picerne when sh e applied to be a vendor. Ms. Knitter now appeals. Exercising juri sdiction under 28 U. S.C. § 1291, we affirm.

1 Following the practice of the parties a nd the district court, we use the term “handyman” in a “non-gender-specific fash ion.” Aplt. Appx., Vol. II at 618 n.1; see also Aplt. Br. at 7; Aplee. Br. at 2-3.

2 Following the practice of the parties, we will continue to use the name “Picerne” to describe Corvias Military Living, LLC. See, e.g. , Aplee. Br. at 1. Picerne’s name change has no effect on this case.-3- I. BACKGROUND
A. Factual Background We recite these facts in the light most favorable to Ms. Knitter as the party opposing summary judgment. See Tabor v. Hilti, Inc. , 703 F.3d 1206, 1211 n.1 (10th Cir. 2013). 3

3 We have considered all portions of th e appellate record, including an affidavit from Ms. Knitter and one from her husband, Ke vin Knitter, submitted in response to Picerne’s motion for summary judgment after the close of discovery. See Aplt. Appx., Vol. II at 522-25, 562-74. On appeal, Picerne argues we should disregard these documents because they are “sham” affidavits submitted to cr eate the appearance of a genui ne dispute of material fact by controverting Ms. Knitter’s earlier statements. See Aplee. Br. at 36-37. We disagree. Sham affidavits, though “unusual,” arise wh en a witness submits an affidavit that contradicts the witness’s prior testimony. Law Co. v. Mohawk Const. & Supply Co. , 577 F.3d 1164, 1169 (10th Cir. 2009 ). Although “[a]n affidavit may not be disregarded solely because it conflicts with the affiant’s prio r sworn statements,” we may nonetheless disregard a conflicting affidavit if it “constitutes an attempt to create a sham fact issue.” Id. (quotations omitted). “In dete rmining whether an affidavit creates a sham fact issue, we consider whether: ‘(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to th e pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the a ffidavit attempts to explain.’” Id. (quoting Ralston v. Smith & Nephew Richards, Inc. , 275 F.3d 965, 973 (10th Cir. 2001)). Neither affidavit here fits the “sham affida vit” paradigm. Ms. Knitter’s affidavit is brief and does not appear to contain any allegations that wo uld directly contradict her earlier deposition testimony regarding the ques tion presented in this appeal—whether Picerne was her employer for purposes of Title VII. See Aplt. Appx., Vol. II at 524. Nor does Picerne argue this is the case; to the c ontrary, it contends her affidavit “attempts to obfuscate, not clarify, facts she already put on the record during he r deposition,” Aplee. Br. at 37, which, even if true, does not necessarily create a sham dispute. Mr. Knitter, meanwhile, was not deposed duri ng discovery; therefore, there is no prior testimony for his affidavit to contradict. To the extent Picerne suggests we should disregard these affidavits because they were submitted after the close of discovery, we also disagree. Picerne did not object to Continued . . .-4- 1. Picerne’s and LGC’s Relationship

a. Picerne’s management of Fort Riley housing Picerne is a national property management company that provides and manages housing on several military bases around th e country, including the United States Army base at Fort Riley, Kansas. Picerne cont racts with outside vendors for many services, including handyman repairs. Picerne’s properties at Fort Riley ar e divided into six “neighborhoods” of residences. Picerne employs one “neigh borhood manager” and one “maintenance supervisor” for each neighborhood. Appx., Vol. I at 181, 232-33; Appx., Vol. II at 419. Picerne also employs and trains mainte nance technicians who perform handyman services in occupied housi ng and report to the neighborhood maintenance supervisor. Unlike subcontractor handymen, who are not re quired to have any specialized training, Picerne maintenance technicians tend to have specialized skills and certifications in areas such as heating, ventilation, and air conditioning; electrical; and plumbing.

______________________________________ Cont. the introduction of either affidavit before th e district court based on tardiness, instead arguing, as it does now, that the affidavits “attempt[] to create disputes that do not genuinely exist” and lack a credible factual basis. Aplt. Appx., Vol. II at 607-08. The district court did not exclude the affidavits a nd indeed appeared to consider them in its grant of summary judgment. See id. at 622-23 (referring to te stimony of “the Knitters,” which must include Mr. Knitter’s affidavit because he was never deposed). We decline to exclude these affidavits now.-5- When a family moves out of a Picerne-ma naged residence, Picerne employees and contractors work together to “turn” the home. A turn prepares a recently vacated housing unit for new occupants. During a turn, the neighborhood maintenance supervisor walks through the home and determines what work ne eds to be done before new residents can move in. The typical turn involves basi c handyman repairs, specialized cleaning, painting, and utility services. A variety of ve ndors provide these services. We focus here on handymen, who are primarily responsible fo r executing the basic repairs involved in a

turn. After his initial walk-through, the neighbo rhood maintenance supervisor prepares a “walk sheet” listing the necessary repairs. Once the walk sheet lis ting work orders is ready, the maintenance supervisor either contacts the vendor company to request a handyman to assist with the turn, or contacts a handyman directly if a relationship has been established. b. LGC’s contract work for Picerne LGC is a handyman company owned and operated by its founder, Frank Lewis. LGC contracts to provide handyman services to outside clients, with approximately 98 to 100 percent of revenues coming from Picerne. Appx., Vol. II at 462-64. During the time Ms. Knitter worked for LGC, all or almost all of LGC’s business came from Picerne. 4

4 It is unclear from the record whether and when Picerne was LGC’s only client. Mr. Lewis testified that since LGC went into business in 2006, it has had clients other than Picerne, particularly during “the early ye ars,” Aplt. Appx. Vol. II at 465, but that 98 Continued . . .-6- Picerne pays a flat fee to handymen ve ndors, including LGC, for every turn performed. These fees generally vary depend ing on the neighborho od, but not depending on the particular vendor or handyman who performs the turn. The fees appear on a published pay scale provided to all vendor companies, including LGC, listing the specific handyman tasks included in a standard turn. If handymen must perform additional tasks not listed on the pay schedule, Picerne pays an additional charge for those particular repairs. Once Picerne pays LGC its fee for a given turn, LGC retains 15 percent as its own administrative fee, then pays its handymen after withholding FICA taxes and federal and Kansas income taxes. Picerne does not pay vendor handymen directly. LGC provides its handymen with W-2 forms.

______________________________________ Cont. to 100 percent of LGC’s revenues came from Picerne because working for Picerne “[i]s pretty much what [LGC] do[es],” id. at 462. Mr. Lewis also stated that LGC could lose 100 percent of its business if Picern e is unsatisfied with LGC’s work, id. at 463-64, and that when Ms. Knitter wo rked for LGC, no work was available for he r to do outside of Picerne contracts, id . at 464. Meanwhile, Ms. Knitter testified that when Mr. Lewis notified her she could no longer work for Pice rne through LGC, she as ked if he had other work available for her, and in response he told her “[h]e was full.” Aplt. Appx., Vol. I at 135. Because Ms. Knitter was the non-moving pa rty and we are required to “draw all reasonable inferences” in her favor, Smothers v. Solvay Chemicals, Inc. , 740 F.3d 530, 538 (10th Cir. 2014), we credit her inference that Mr. Lewis “admitted that 100% of his work was coming from Picerne” at or around the time of Ms. Knitter’s termination, Aplt. Appx., Vol. II at 407; see also Aplt. Br. at 6.-7- In contrast to Picerne’s own maintenance technicians, for whom Picerne provides training, Picerne’s relationship with the ve ndor-provided handymen is less formal. Picerne does provide a mandatory haza rd awareness program for all Picerne subcontractors, which includes safety equipmen t training. Vendor handymen also receive their assignments from Picerne neighborho od supervisors, and Picerne maintenance supervisors provide handymen in structions for each turn.
2. Ms. Knitter’s Work as an LGC Handyman

a. Initial employment and training In March 2010, Ms. Knitter approached M r. Lewis for a job at LGC. Mr. Lewis knew Ms. Knitter’s husband, Ke vin Knitter, and hired Ms. Kn itter provided Mr. Knitter would volunteer to assist he r on the job when needed. LGC never formally employed Mr. Knitter, who is disabled and unable to work full time. Ms. Knitter was already skilled in some ba sic handyman tasks. Her husband gave her additional training. Ms. Knitter attende d Picerne’s mandatory safety training for vendor handymen. Neither Mr. Lewis nor Picerne provided Ms. Knitter with any additional formal training, although Picern e employees would occa sionally demonstrate to the Knitters “how [Picerne] wanted things done,” including how to repair binding doors or other specific tasks. Appx. Vol. II at 566. b. Work routines Ms. Knitter, often accompanied by her husba nd, worked from March to October 2010 completing turns on Picerne units in several neighborhoods at Fort Riley.-8- i. Assignments and schedule Ms. Knitter received assignments directly fro m Picerne’s maintenance supervisors. The supervisors created punch lists during thei r inspections before a turn. They then wrote Ms. Knitter’s assignments on walk shee ts. Mr. Lewis did not participate in inspections or direct Ms. Knitter and her husband regarding specific assignments. Ms. Knitter testified that, apart from the u ltimate deadline Picern e set to complete a turn, she set her own schedule for completing assignments. Ms. Knitter arrived at Fort Riley at different times each day based on th e number of units she had scheduled to turn on a given day. When Ms. Knitter arrived at Fort Riley to work on a turn , she went to the “neighborhood office” of the ne ighborhood where she was sche duled to work to receive her assignments. Picerne notified Ms. Knitter “which jobs needed to be done on which days and the priority of those jobs.” Appx ., Vol. II at 567. Within a given job, Ms. Knitter performed the tasks in any order she chose and set he r own times for lunch breaks or other scheduling matters. If no assignments were available for Ms. Knit ter at Fort Riley on a given day, she and her husband did not work for LGC or on Picerne’s premises that day. When Ms. Knitter was going to be away from work, she no tified a Picerne neighborhood supervisor. She did not tell Mr. Lewis. During the 133 business days Ms. Knitter worked for LGC, she spent 94 days on Picerne properties and did not work the remaining days. ii. Equipment and dress code-9- In accordance with LGC and Picerne polic y, Ms. Knitter and he r husband brought their own tools to a unit to perform a turn. Picerne provided more specialized equipment, including parts and “exceptionally tall ladders,” Appx., Vol. I at 173, as well as “water keys, screen rollers, door knob lock set jigs, closet augers, allen wrenches and specialty tools necessary to rebuild a [M]oen faucet, rolls of paper towels, and garbage bags,” Appx., Vol. II at 568. Picerne required both Ms. and Mr. Knitter to adhere to a dress code that banned shorts and sleeveless shirts. Picerne also re quired the Knitters to wear safety harnesses and protective eyewear when co mpleting specific tasks. iii. Supervision and discipline Ms. Knitter and her husband generally performed turns unsupervised unless they needed assistance from Picerne maintenance supervisors with specific issues or additional work not listed on the work or der. Picerne supervisors occasionally showed the Knitters how they wanted specifi c tasks performed. After all vendor crews—including LGC handymen and specia lized painting or carpet crews—had completed their work, Picern e supervisors conducted walk-throughs to ensure all work had been pr operly completed. Accordi ng to the Knitters, Mr. Lewis never participated in these walk-throughs. Ms. Knitter testified, however, that Mr. Lewis “came on occasion” to inspect LGC painters wh o were working in th e same unit as she was. Appx., Vol. I at 173-74; see also id. at 185.-10- Occasionally, Ms. Knitter’s work did not sa tisfy Picerne maintenance supervisors. When that happened, a supervisor either contacted Mr. Lewis to notify him that Ms. Knitter had not completed her work satisfactor ily or contacted Ms. Knitter directly to rectify the errors. Picerne supervisors testified they never formally disciplined any LGC handymen, including Ms. Knitter. Mr. Knitter, however, st ated that if he and Ms. Knitter “were caught without wearing a safety harness, [they] were fined an d that money went directly to Picerne,” although he did not provide any instances of this happening. Appx., Vol. II at 565. He also stated that Picerne’s head sa fety officer for Fort R iley once observed the Knitters wearing shorts on a job. The safety o fficer “told [the Knitters] if he ever caught [them] wearing shorts again, [they] would be gone.” Id.

c. Work in specific Fort Riley neighborh oods and allegations of discrimination The Knitters worked in a vari ety of neighborhoods around Fort Riley. In three of these neighborhoods—McClellan, Ellis He ights, and, most notably, Peterson—the Knitters had conflicts with Picerne staff. The Knitters assisted on tu rns in the McClellan ne ighborhood, where Chase Fleshman was the maintenance supervisor and Ben Kearns wa s the neighborhood manager. The Knitters worked at McCle llan for a few weeks before they had a disagreement with Mr. Fleshman and Mr. Kear ns. According to Ms. Knitter, after this-11- dispute, she refused to work at McClellan, in part because she was not paid for additional work she had performed beyond her flat rate assignments. 5
The Knitters next worked in two other Fort Riley neighborhoods—Ellis Heights and Peterson. Both of these expe riences also ended negatively. In Ellis Heights, the neighborhood mana ger contends Ms. Knitter was dishonest and difficult to work with. Th e Knitters say their dispute with the Ellis Heights manager was based on a misunderstanding. In Peterson, the Knitters wo rked with maintenance supe rvisor Rodney Hayworth. Ms. Knitter contends Mr. Hayworth sexually harassed her, repeatedly calling her a “dumb blonde” and sugge sting Ms. Knitter had no place wo rking as a handyman because she was a woman. Appx., Vol. I at 15. Ac cording to Ms. Knitter, M r. Hayworth told her she should go home and “get laid” when she was in a bad mood, and repeatedly expressed “chauvinistic” opinions about women and their inte lligence. Appx., Vol. II at 576. Ms. Knitter also alleges Mr. Hayworth had sexually graphic conversations with other men in front of her, causing her to f eel uncomfortable. Appx., Vol. I at 15. Ms. Knitter further alleges Mr. Hayworth pa id her lower fees ba sed on her gender. Although Ms. Knitter admits Pi cerne paid LGC handymen a flat rate based on the neighborhood and home being tu rned, she complained in a letter to Picerne managers

5 Picerne claims the Knitters were dish onest and unruly and that it asked Mr. Lewis to stop sending the Knitters to McCl ellan. We accept Ms. Knitter’s contrary account because she was the non-moving party before the district court.-12- after her termination that Mr. Hayworth assigne d her to turns that pa id less than others, and that Mr. Hayworth wanted to pay her less because she was a woman: When [a male handyman] could no longer work on Ft. Riley[, Mr. Hayworth] called us to do the handym an turns he was behind on. I don’t remember the exact number but there were 8 or 9 that had to be done that week. When I told [Mr. Hayworth] we would have to turn down turns in Ellis for $200 ea to do turns for him for $125 each he told us he would make it up to us later. After the tu rns were done [Mr. Hayworth] must have forgotten the favor we did for him be cause he always wanted me to do work for less money than anyone else. In other words fo r less money than the MEN who worked for hi m. [Mr. Hayworth] never told me the turns in his neighborhood had been raised to $160 [when] I complained for months that $125 was not enough . After [Mr. Hayworth] and [Picerne Assistant Director of Maintenance Operations] Brian Lamb decided I could no longer work for Picerne the price was raised to $160. How convenient, now they can pay the men more money than they paid the woman for doing the same job. Appx., Vol. II at 577. Ms. Knitter also complained that Mr. Hayworth refuse d to pay the Knitters for work they did beyond the flat rate assignments. Specifically , the Knitters put in a bid of $500 to do additional handyman repair s on a flooded home in the Peterson neighborhood. 6 After the Knitters negotiated the bid, Ms. Knitter says Mr. Hayworth “started adding extra work that was not on the original list when he accepted the bid. He then told us the extr a work was to be done for no extra money.” Id. Ms. Knitter’s complaint alleged that Mr. Hayworth’s refu sal to pay for the Kn itters’ additional work

6 The record does not indicate if the $500 was to flow through LGC or be paid directly to the Knitte rs from Picerne.-13- was “[b]ecause of [Mr.] Hayworth’s discri minatory view of women working in the field . . . .” Appx., Vol. I at 15. Aside from their disputes with Mr. Ha yworth in Peterson, the neighborhood manager in Ellis Heights, and the Picerne st aff in McClellan, the Knitters otherwise enjoyed generally positive relati onships with Picerne managers and supervisors. Michael Mann—maintenance supervisor for Ellis Heights 7 —stated in an affidavit that he “used [the Knitters] every chance [he] could” be cause of the quality of their work and demeanor. Appx., Vol. II at 521. Preston Bu ckland, a Picerne maintenance supervisor in the Historic Main Post neighborhood, thou ght the Knitters’ work was “exceptional” and stopped using LGC afte r Ms. Knitter was terminated. Appx., Vol. II at 542. Finally, Galen Hansen—maintenance su pervisor in the Warner neighborhood—testified the Knitters had done good work on the 20 jobs they had perform ed for him. He believed there were neighborhoods where a maintena nce supervisor would use only Ms. Knitter for handyman services. d. Complaints of discrimi nation and termination During the time Ms. Knitter worked w ith Mr. Hayworth in the Peterson neighborhood, she complained several times to Picerne managers that Mr. Hayworth was harassing her and discriminating against her be cause she was a woman. In early October

7 The person with whom the Knitters had a bad relationship at Ellis Heights was the neighborhood manager, not the maintenance supervisor.-14- 2010, Ms. Knitter called Brian Lamb—Assistant Director of Maintenance Operations at Picerne—and again complained Mr. Hayworth was harassing her. On or about October 15, 2010, Mr. Lamb called Mr. Lewis and asked him not to send Ms. Knitter to Fort Riley anymore. Mr. La mb later stated in an affidavit that he made this request because Ms. Knitter wa s uncooperative, untim ely, and had billed Picerne for work she had not performed. Ms. Knitter contends Mr. Lamb’s request to Mr. Lewis was retaliation for her previous complaints of sexual harassment and genderbased pay disparity. After receiving the phone call from Mr. La mb, Mr. Lewis terminated Ms. Knitter’s employment. He testified he had no work assignments av ailable for Ms. Knitter outside of Fort Riley. Ms. Knitter contends Picern e effectively forced Mr. Lewis to let her go because Mr. Lewis did not have other clients for whom Ms. Knitter could have worked. It is uncontroverted that Picerne did no t know whether LGC had additional clients aside from Picerne. Picerne contends it was unaware Ms. Knitter woul d lose her job if Picerne no longer wanted her at Fort Riley.

e. Vendor application In November 2010, Ms. Kn itter—doing business as “Lis a’s Handyman Service”— applied to Picerne for vendor status to pr ovide handyman work. She submitted various forms to qualify. These form s listed Lisa’s Handyman Serv ice as a “subcontractor” and a “small business enterprise.” Appx., Vol. I at 367-69.-15- The materials Ms. Knitter submitted to Picerne also included a confidentiality agreement between Lisa’s Handyman Service, identified as the “bidder,” and Picerne, identified as the “contractor.” The confid entiality agreement applied regardless of whether the bidder is “awarded the Subcontract for which it is bidding.” Appx., Vol. I at
370. On December 7, 2010, Gary Bertrand, di rector of “Small Business/Subcontractor Recruitment” at Picerne, denied her business vendor status. Appx., Vol. I at 393. Mr. Bertrand’s letter advised Ms. Knitter that Pice rne was not adding “new subcontractors in the trades that your company performs.” Id. The letter also noted Picerne must balance “the number of contractors that work for us with the amount of current and projected work that we have for them.” Id. Ms. Knitter contends she was denied vendor status as a result of discrimination complaints she had made to Picerne when she worked at Fort Riley as an LGC handyman.
B. Procedural Background Ms. Knitter sued Picerne on November 28, 2011, alleging ge nder discrimination and sexual harassment in viola tion of Title VII. Specifica lly, Ms. Knitter alleged she was paid less than male counterparts and was fire d in retaliation for her wage discrimination and sexual harassment complaints against Pice rne. Ms. Knitter also alleged Picerne later denied her company vendor status in retaliation for her pr ior complaints.-16- Picerne moved for summary judgment on a variety of grounds, arguing in particular that it was not Ms. Knitter’s “empl oyer” and therefore coul d not be held liable under Title VII. Picerne also argued Ms. Kni tter’s application for vendor status was not an application for employment and therefore did not fall within T itle VII’s ambit. On January 3, 2013, the district court gr anted summary judgment to Picerne. It concluded Ms. Knitter was not an employee of Picerne and th erefore could not bring her wage discrimination and retaliatory terminat ion claims. It also decided Ms. Knitter’s claim of retaliatory denial of vendor status failed because her application to be a vendor was not an application for empl oyment. The district court did not reach the merits of Ms. Knitter’s Title VII claims or address wh ether Ms. Knitter had provided sufficient evidence of wage discrimination or retaliatory motive.
III. DISCUSSION
A. Standard of Review We review the district court’s grant of summary judgment to Picerne de novo, applying the same legal standard as the district court. See Cillo v. City of Greenwood Village , 739 F.3d 451, 461 (10th Cir. 2013); Tabor v. Hilti, Inc. , 703 F.3d 1206, 1215 (10th Cir. 2013). We must view the evidence in the li ght most favorable to Ms. Knitter, the nonmoving party. Tabor , 703 F.3d at 1215. Therefore, we must resolve “all factual disputes and reasonable infe rences in [her] favor.” Cillo , 739 F.3d at 461.-17- Summary judgment must be granted wher e “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “m aterial” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). “A dispute over a material fact is ‘g enuine’ if a rational ju ry could find in favor of the nonmoving party on the evidence presented.” E.E.O.C. v. Horizon/CMS Healthcare Corp. , 220 F.3d 1184 , 1190 (10th Cir. 2000). As the moving party, Picerne must show the absence of a genuine dispute. In evaluating this issue, we must examine th e evidence Ms. Knitter has put forth to make out her Title VII claim. Su mmary judgment is appropriate where the moving party has shown “the nonmoving party has failed to ma ke a sufficient showing on an essential element of his or her case with respect to which [he or] she has the burden of proof.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; ther e must be evidence on which the jury coul d reasonably find for the plaintiff.” Anderson , 477 U.S. at 252. We review de novo legal questions of st atutory interpretation—in this case, the legal test to determine the defin ition of “employee” under Title VII. See, e.g. , United
States v. Porter , 745 F.3d 1035, 1040 (10th Cir. 2 014). Whether an entity actually satisfies this definition under the appropriate te st, however, “is a fact issue for the jury.” Bristol v. Bd. of Cnty. Comm’rs , 312 F.3d 1213, 1221 (1 0th Cir. 2002) (en banc).
B. Legal Background-18- Title VII of the Civil Rights Act of 1964 makes it unlawful for an “employer” to “discriminate against any indi vidual with respect to his co mpensation, terms, conditions, or privileges of employment” on account of sex. 42 U.S.C § 2000e-2(a)(1); see Tabor , 703 F.3d at 1216. An employer also may not “discriminate against any of his [or her] employees . . . because [the employee] has opposed any [unlawful employment] practice.” 42 U.S.C. § 2000e-3(a); see Tabor , 703 F.3d at 1219 (“Title VII forbids retaliation against an employ ee because she has opposed a ny practice made unlawful by Title VII.” (quotations omitted)). Title VII defines an “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees.” 42 U.S.C. § 2000e(b). An “employee,” in turn, is “an individual employed by an employer.” Id. § 2000e(f).
C. Analysis Ms. Knitter appeals the district court’s gr ant of summary judgment to Picerne on her claims of (1) wage discrimination, (2) retaliatory termination, and (3) retaliatory denial of her vendor application. We affirm the district court on all claims.
1. Wage Discrimination and Reta liatory Termination Claims Before we can address whether Ms. Knitte r has made out a prima facie case of wage discrimination or retaliato ry termination, we must firs t decide whether Picerne has shown she has provided insufficient evidence for a reasona ble jury to conclude Picerne was her “employer” for purposes of Title VII. Because we affirm the district court’s-19- conclusion that Picerne has not shown she ha s not, we address both claims at once and limit our inquiry to the threshold issue of whether Picerne was Ms. Knitter’s employer.

a. Title VII employment tests To make out a prima facie case of either wage discrimination or retaliatory termination under Title VII, a plaintiff must first prove the defendant was her employer. See Lockard v. Pizza Hut, Inc. , 162 F.3d 1062, 1 069 (10th Cir. 1998); Frank v. U.S. West,
Inc. , 3 F.3d 1357, 1361 (10th Cir. 1993). If a pl aintiff cannot meet her burden to prove the defendant was her employer, her wage di scrimination and reta liatory termination claims necessarily fail. Lockard , 162 F.3d at 1069. Factfinders must decide whether a defendant is an employer for purposes of Title VII when doubts exist as to (1) whether a plaintiff is an employee or an independent contractor, or, alternatively, (2) which one(s) of multiple i ndividuals or entities is (are) the plaintiff’s employer. See generally Bristol , 312 F.3d at 1217-18. 8 Depending on the situation, this circuit chooses among thre e different tests to determine whether a defendant is an employer depending on the situ ation: (i) the hybrid test; (ii) the joint

8 Bristol involved claims asserted under the Americans with Disabilities Act (“ADA”), not Title VII. But the Bristol court noted that the two statutes define “employee” identically, and it relied on Title V II cases in its articulation of the various employment tests. See Bristol , 312 F.3d at 1217-18. Its analysis and holding are therefore relevant here. See Sandoval v. City of Boulder , 388 F.3d 1312, 1323 (10th Cir. 2004) (applying Bristol to Title VII claims).-20- employer test; and (iii) the single employer test. Id. For context, we briefly review these three tests before proceeding to apply th e joint employer test in this case. i. The hybrid test We commonly use the “hybrid test” to distinguish an employee from an independent contractor. See Oestman v. Nat’l Farmers Union Ins. Co. , 958 F.2d 303, 305 (10th Cir. 1992)

. The “hybrid” test combines two types of analysis: (1) a common law inquiry asking whether an entity contro ls its workers in an employer-employee relationship, and (2) the “economic realities te st,” which asks whether the worker is in business for himself “as a matter of economic fact.” Id. “Although the hybrid test looks at the economic realities of the situation, the focus of the inquiry is the employer's right to control the ‘means and manner’ of the worker's performance.” Id. (quoting Spirides v. Reinhardt , 613 F.2d 826, 831 (D.C. Cir. 1979)). Although this circuit origina lly used the hybrid test only to differentiate employees and independent contractors, see id. , we later began using the hybrid test also to determine “which of two entities was a pl aintiff’s ‘employer’ under Title VII,” Bristol , 312 F.3d at 1217; see, e.g. , Sizova v. Nat’l Inst. of Standards & Tech. , 282 F.3d 1320, 1328-29 (10th Cir. 2002). In our 2002 en banc decision in Bristol v. Board of County
Commissioners , however, we clarified that the joint employer test, not the hybrid test, is the appropriate test to use wh en an employee of one entity seeks to hold another entity liable as an employer. See Bristol , 312 F.3d at 1218. ii. The joint employer test-21- Under the joint employer test, two entities are considered joint employers if they “share or co-determine those matters govern ing the essential terms and conditions of employment.” Id. (quotations omitted). Both entitie s are employers if they both “exercise significant control over the same employees.” Id. (quotations omitted). “An independent entity with suffici ent control over the terms and conditions of employment of a worker formally employed by another is a joint employer within the scope of Title
VII.” Sizova , 282 F.3d at 1330 (quot ations omitted). “Most important to control over the terms and conditions of an employment relationship is the right to terminate it under certain circumstances . . . .” Bristol , 312 F.3d at 1219. Additional factors courts cons ider for determining control under the joint employer test include the ab ility to “promulgate work rules and assignments, and set conditions of employment, incl uding compensation, benefits, and hours; . . . day-to-day supervision of employees, including employee di scipline; and . . . control of employee records, including payroll, insu rance, taxes and the like.” Butterbaugh v. Chertoff , 479 F. Supp. 2d 485, 491 (W.D. Pa. 2007) (quotations omitted). iii. The single employer test Finally, the single employer test permits “a plaintiff who is the employee of one entity . . . to hold another entity liable by arguing that the two entities effectively constitute a single employer.” Bristol , 312 F.3d at 1218. “ Although [the joint employer and single employer] tests are sometimes co nfused, they differ in that the singleemployer test asks whether two nominally separa te entities should in fact be treated as an-22- integrated enterprise, while the joint-employer test assume s that the alleged employers are separate entities.” Id. Unlike the joint employer test, which focuses on the relationship between an employee and its two potential employers, the single employer test focuses on the relationship between the potential employers themselves. “Courts applying the singleemployer test generally weigh four factors: ‘(1) interrelations of operation; (2) common management; (3) centralized control of la bor relations; and (4) common ownership and financial control.’” Bristol , 312 F.3d at 1220 (quoting E.E.O.C. v. Wooster Brush Co. Emps. Relief Ass’n , 727 F.2d 566, 571 (6th Cir. 1984)). b. Terms and conditions of Ms. Knitter’s employment under the joint employer test The parties agree, as do we, that we sh ould apply the joint employer test to determine whether a reasonabl e jury could find Picerne was Ms. Knitter’s employer between March 2010 and October 2010. 9 No one has alleged that Picerne and LGC

9 Ms. Knitter argues the district court app lied the wrong test in granting summary judgment to Picerne. She contends that alt hough the district court stated it would apply the joint employer test, it improperly conflated its analysis with the hybrid test and relied on a court decision applyi ng the hybrid test. We disagree. In its order granting summa ry judgment, the district court said it would examine “the facts concerning whether Pi cerne exercised ‘significant control’ over the terms and conditions of [Ms. Knitter]’s employment.” Aplt. Appx., Vol. II at 627. This is precisely what the join t employer test asks. The di strict court examined various factors, including the ability to terminate Ms. Knitter, disciplin e, daily supervision, and payment, and concluded based on this analysis that “no re asonable jury could conclude that Picerne exercised the requisite contro l over [Ms. Knitter] to be deemed [Ms. Knitter]’s employer.” Id. Continued . . .-23- constitute a single employer, and the partie s do not dispute that Ms. Knitter was an employee of LGC rather than an independent contractor to any en tity. Both the single

______________________________________ Cont. The district court stated its conclusion wa s “based in part on the Tenth Circuit’s decision in Zinn v. McKune , 143 F.3d 1353 (10th Cir. 1998).” Id. at 628. Zinn is a preBristol case that applied the hybrid test to dete rmine that the plain tiff, an employee of a private corporation that had contracted with the Kansas Department of Corrections to provide medical services to inmates, was not also an employee of the Department for Title VII purposes. Zinn , 143 F.3d at 1355. The district court recognized Zinn is a hybrid test case, but found its analysis “nonetheless . . . relevant to” the discrimination in the presen t case, “particularly as the Circuit in Zinn was faced with arguably joint employers and, in th at regard, analyzed the amount of control exercised by the Department over Ms. Zinn’s work.” Aplt. Appx., Vol. II at 628. The district court co mpared the facts of Zinn to the present case. It noted plaintiff in Zinn argued the Department effectively term inated her employment when it requested the private corporation remove her from as signment to the Department. The Tenth Circuit rejected that argumen t, holding the Department’s ability to request removal of personnel did not render Ms. Zinn an empl oyee of the Department because the private corporation for which she worked “alone re tained the ability to terminate” her. Zinn , 143 F.3d at 1358. The district c ourt also pointed out that in Zinn , the Department’s own manuals treated the employees of contractors as Department employees; the Department acted on an internal EEO comp laint Ms. Zinn filed as if she were its employee; the Department participated in hiring Ms. Zinn ; and the Department supervised her daily work. Aplt. Appx., Vol. II at 629 (citing Zinn , 143 F.3d at 1361-62 (Briscoe, J., concurring)). The district court concluded that it was “particularly persuaded by the Circuit’s opinion in Zinn because the facts tending to show joint employment in Zinn were much stronger than those here and the Circuit nonetheless affi rmed the grant of summary judgment [to the defendant].” Aplt. Appx., Vol. II at 629. We do not believe the district court improperly relied on Zinn . Although its invocation of Zinn may have been confusing, the di strict court’s order as a whole indicates it did rely on the joint empl oyer test, as it stated it would. In any case, because our standard of revi ew is de novo, we are free to apply the proper test here, and we may affirm on any ground supported by the record. See Eller v. Trans Union, LLC , 739 F.3d 467, 476 (10th Cir. 2013).-24- employer and hybrid tests are thus inapplicable. See Bristol , 312 F.3d at 1217-18 (clarifying that the hybrid test applies only to determine whether a worker is an employee or an independent contractor and explaini ng the difference betw een the joint employer and single employer tests). Instead, the qu estion is whether Picerne—a separate entity from LGC—can also be consider ed Ms. Knitter’s employer. We therefore apply the joint employer test. See Sizova , 282 F.3d at 1330 (“ An independent entity with sufficient control over the terms and conditions of the employment of a worker formally employed by another is a joint employer within the scope of Title VII.” (quotations omitted)). We agree with the district court that, appl ying the joint employe r test to the facts viewed in the light most favorable to Ms . Knitter, no reasonable jury could find Ms. Knitter was an employee of Picerne. Picern e has shown Ms. Knitte r has not presented enough evidence for a reasonabl e jury to conclude Picern e and LGC “share[d] or codetermine[d] those matters governing the essential terms and conditions of [Ms. Knitter’s] employment.” Bristol , 312 F.3d at 1218; see also Lockard , 162 F.3d at 1069 (plaintiff has the burden to prove the defendant was her employer). The following shows that (i) Picerne did no t have the authority to terminate Ms. Knitter’s employment; (ii) Picerne did not pay Ms. Knitter directly; and (iii) Picerne did not have the authority to supervise and disc ipline Ms. Knitter beyond the confines of a vendor-client relationship. Taking these fact ors together, we conclude Picerne treated Ms. Knitter as a vendor providing a serv ice rather than as an employee. i. Authority to terminate-25- Our case law provides limited instruction as to which “terms and conditions of employment” are considered “essential” for pur poses of the joint em ployer test, though Bristol makes clear that “[m]ost important to c ontrol over the terms and conditions of an employment relationship is the right to termin ate it under certain circumstances . . . .” 312 F.3d at 1219. We also noted in Sandoval v. City of Boulder , 388 F.3d 1312, 1324 (10th Cir. 2004), that the ability to terminate was the most important factor in deciding the City of Boulder and the executive committee of a region al communications center run by the city and county were not joint empl oyers because the City exercised only limited control over employees of th e executive committee, had no im pact on hiring decisions, and lacked the ability to terminate the committee’ s executive director. 10 Although the ability to terminate may not be the sole f actor courts should consider under the joint employment test, 11 it is particularly compelling in this case and weighs heavily against Ms. Knitter. No reasonable ju ry could find Picerne had the ability to terminate her employment. Ms. Knitter argues Picerne was able to fire her because, by requesting that she no longer be sent to Fort Riley, Picerne e ffectively forced Mr. Lewis to terminate her

10 In addition, at least one district court in our circuit has indicated the ability to terminate is the dispositive factor under the joint employment test. See Blagg v. The Tech. Group, Inc. , 303 F. Supp. 2d 1181, 1185 (D. Colo. 2004) (“As discussed in Bristol , the determining factor is the right to make termination decisions . . . .”).

11 Picerne’s counsel conceded as much at oral argument. See Oral Arg. Recording (21:41-22:12).-26- employment. As the record indicates, howeve r, Picerne was unaware that all or almost all of LGC’s business came from Picerne. LG C had additional clients at times aside from Picerne, and if it still had those clients, Pi cerne’s request to ha ve Ms. Knitter removed from Fort Riley might well have resulted in he r reassignment to a different client and not termination. At any rate, Picerne lacked the power to fire Ms. Knitter; it at most could request that LGC no longer assign Ms. Knitter to wo rk at Fort Riley. Picerne managers repeatedly testified they did not believe they had the power to fire vendor handymen and instead were required to direct issues with handymen to the vendor companies. In Ms. Knitter’s case, Mr. Lamb spoke to Mr. Lewi s and requested that LGC no longer send Ms. Knitter to Fort Riley. He said nothi ng regarding Ms. Knitter’s continued LGC employment or her ability to wo rk for other LGC clients. There is therefore no genuine dispute that control over the most important condition of Ms. Knitter’s employment unde r the joint employer test—the ability to terminate her employment—lay so lely with LGC. Picerne did not share in this power as a joint employer. ii. Payment Although the ability to term inate an employee is th e most important factor indicating an employer is a joint employer, we may also consider whether Picerne had control of Ms. Knitter’s “record s, including payroll, insura nces, taxes and the like.” Butterbaugh , 479 F. Supp. 2d at 491 (quotations omitted).-27- LGC had almost exclusive control ove r Ms. Knitter’s personnel records and payment. LGC pr ovided Ms. Knitter with W-2 forms, withheld taxes from her income, and issued Ms. Knitter’s paychecks. Ms. Knitter argues LGC was merely a “pass- through” in Picerne’s business model because all her payments truly came from Pi cerne itself and were subject to Picerne’s decisions. Picerne set flat rates for ven dor handyman services, and in this sense indirectly determined Ms. Knitter’s income. But Picerne had no co ntrol over how much of Ms. Knitter’s paychecks LGC deducted for itself (15 percent). And Picerne never paid Ms. Knitter for turns directly or negotiated ra tes with her. Ms. Knitter admits the flat rates Picerne set for turns did not va ry based on the particular handyman. The record is unclear regarding the a dditional payment Mr. Hayworth allegedly negotiated with the Knitters for work beyond the flat ra te on a flooded unit in the Peterson neighborhood. Ms. Knitter states she and her husband put in a bid for $500 to do the additional work, but she does not sp ecify whether this one-time payment would have gone through LGC or directly to the Kn itters from Picerne. See Appx., Vol. II at 577. Even if the Knitters negotiated this rate with Mr. Hayworth a nd received payment from Picerne, any such exchange was anom alous and not indicative of an employeremployee relationship. Ms. Kn itter’s paychecks came from LG C, which also maintained her personnel records, including her W-2 fo rms. No reasonable jury could conclude Picerne shared control over Ms. Knitter’s payment and personnel file with LGC.-28- iii. Authority to supervise and discipline In addition to considering Picerne’s authority to term inate Ms. Knitter and whether it paid her and maintained her records, we also look to “day-to-day supervision of employees, including employee discipline.” Butterbaugh , 479 F. Supp. 2d at 491 (quotations omitted). Some degr ee of supervision a nd even discipline is to be expected when a vendor’s employee comes on anothe r business’s work site, but the limited supervision and discipline here weigh against regarding Pi cerne as Ms. Knitter’s joint employer. (a) Supervision Ms. Knitter argues Picerne supervised her work on a daily ba sis by demonstrating how tasks were to be performed and instructing her to redo them if she had done them unsatisfactorily. She also points out sh e worked on Picerne premises, took her assignments from Picerne, was required to su bmit to Picerne’s dress code, and notified Picerne when she was going to be absent from work. She analogizes the foregoing to a 2004 district court case applying the joint employer test to deny a motion for summary judgment in which the defendant argued it was not the plaintiff’s employer. See Hurde v. Jobs Plus-Med , 299 F. Supp. 2d 1196 (D. Kan. 2004). The plaintiff in Hurde was hired by Jobs Plus, a job placement agency, “for placement at” the defendant’s business, A-Plus. Id. at 1201. Although Jobs Plus issued the plaintiff’s paychecks, the plaintiff wo rked on A-Plus’s pr emises, and A-Plus supervised and trained hi m and determined his hours, days of work, and rate of pay. The-29- plaintiff was required to notify A-Plus when he was going to be absent from work, and all of his job skills were acquired through on-the-job training with A-Plus. See id. at 1209. But unlike the plaintiff in Hurde —who was hired specifically “for placement” at A-Plus, id. at 1201—Ms. Knitter never applied to work specifically at Picerne, and Picerne did not control Ms. Knitter’s paymen t, as discussed above. Picerne also supervised Ms. Knitter less form ally and to a lesser extent than did the defendant in Hurde

. Picerne’s supervision of the Knitters’ wo rk was limited and largely focused on workplace safety issues, including the dress code and safety harness requirements. Because the Knitters worked on Picerne premises, Picerne na turally would be concerned about their safety, even if onl y for liability purposes, just as they would for any employee or non-employee on premises. Picerne managers supervised the Knitters’ daily work to the extent they provided instruction on how to perform cer tain tasks and notified the Kn itters if their work did not meet Picerne’s standards. But this supervis ion did not extend to su ch matters as training or formal performance evaluations provi ded to employees, again unlike in Hurde

. See id. at 1209. Picerne’s supervis ion was limited to directing th e Knitters on how to perform certain tasks to its satisfaction, much lik e an individual hiring a moving company to move his or her belongings into an apartmen t might direct the movers on where to place items or how to protect items that are par ticularly fragile. In short, the level of-30- supervision was consistent with a client-v endor relationship, not an employer-employee relationship. (b) Discipline Ms. Knitter also argues Picerne had the auth ority to discipline her. She points out that Picerne managers notified the Knitters wh en their work was unsa tisfactory. On one occasion, according to Mr. Knitter, a Picerne manager told the Knitters they would “be gone” if they were ever caught wearing shorts again. Appx., Vol. II at 565. Mr. Knitter also contends Picerne would fine the Knitters if they were caught not wearing safety harnesses. Id. 12 But Ms. Knitter has provided no evidence that any Picerne manager or employee ever exercised any authority to discipline her. On the contrary, Picerne managers testified they complained about Ms. Knitter to Mr. Lewis but did not have the power to discipline Ms. Knitter. Even if Picerne threatened to disc ipline her—as the manager who warned the Knitters not to wear shorts alle gedly did—this does not mean it had the actual authority to do so or that it did discipline her. Likewise, even if Picerne did collect fees for not wearing a harness to deter unsafe workplace behavior, it do es not follow that Picerne had authority to discipline Ms. Knitter regarding other matters.

12 It is unclear, however, whether the Knitters ever actually were fined, or simply speculated that they might be.-31- In short, the modicum of control Picern e exerted over the Knitters’ daily work, including supervision and discip line, did not suffice to rende r it a joint employer of the Knitters for Title VII purposes.
* * * Taking together the “essential term s and conditions of employment,” Bristol , 312 F.3d at 1218, including the authority to terminate, pay, supervise, and discipline, see Butterbaugh , 479 F. Supp. 2d at 491, we concl ude Picerne exerted insufficient control over these matters to be her joint employer. The most important factor—Picerne’s lack of authority to terminate Ms. Knitter, see Bristol , 312 F.3d at 1219—weighs heavily against Picerne being a joint employer, as does Picerne’s not paying her. The supervision and discipline factors also support Picerne, and to the extent that Picerne did have authority to supervise elements of Ms. Knitte r’s work and enforce safety rules, this limited control is not a sufficient basis for a reasonable jury to find that, taking all the factors together, Picerne was Ms. Knitter’s joint employer. LGC was a vendor and Picerne was a client . Picerne exerted the sort of control over LGC handymen that one would expect a client to exert over its vendors— supervising limited aspects of their work, providing them with instruction on particular tasks, and furnishing some supplies when necessary. Picerne regularly uses dozens of vendors in its daily operations. These vendors are not all “employees” of Picerne for Title VII purposes merely because Picerne notifies them what services it desires and requires co mpliance with its safety rules for them to-32- work on its premises. Picerne has met it s burden to show it is entitled to summary judgment under Federal Rule of Civil Proc edure 56(a) because it has shown that Ms. Knitter has not offered sufficient facts for a re asonable jury to find Picerne was her joint employer rather than a client of LGC. See Lockard , 162 F.3d at 1069. Because we conclude Ms. Knitter was not an employee of Picerne, we must affirm the district court’s grant of summary ju dgment to Picerne. In doing so, we express no view on the merits of Ms. Knitter’s claims if Picerne ha d qualified as an employer under Title VII. We hold only that to th e extent Ms. Knitter faced discrimination or harassment at her job, Title VII does not furnish her with a remedy against Picerne because it was not her “employer” with in the meaning of the statute.
2. Denial of Vendor Status Claim Because no reasonable jury could find that Ms. Knitter was an employee of Picerne, we conclude her claim based on denial of vendor stat us must fail alongside her claims of wage discrimination and retaliatory termination.

a. Title VII standing Title VII’s protection against unlawful re taliation applies to “employees or applicants for employment.” 42 U.S.C. § 20 00e-3(a). Because Title VII is a remedial statute that must be construed broa dly, courts have clarified that “ former employees” are included in the definition of “employees ” for purposes of this provision. Jencks v. Modern Woodmen of Am. , 479 F.3d 1261, 1264 (10th Cir. 2007); see also Robinson v. Shell Oil , 519 U.S. 337, 346 (1997).-33- For this reason, a former employee may bring a retaliation claim against an employer for any retaliatory adverse actions the employer takes after the former employee no longer worked for the employer, such as refusing to hire the former employee as an independent contractor. See Jencks , 479 F.3d at 1265. A plaintiff who has never been employed by the defendant, in contrast, must prove that he or she was an “applicant[] for employment.” 42 U.S.C. § 2000e-3(a). Title VII does not protect applicants for independent contractor positions if they are not former employees of the defendant. See, e.g. , Alam v. Miller Brewing Co. , 709 F.3d 662, 667-68 (7th Cir. 2013). b. Ms. Knitter’s application for vendor status Because we hold Ms. Knitter was never an employee of Picerne, Ms. Knitter is required to show she was an “applicant[] for employment” w ith Picerne to establish a claim for retaliatory rejection of her vendor applica tion under Title VII. 42 U.S.C. § 2000e-3(a). Ms. Knitter cannot satisfy this burden. The record contains no indication Ms. Knitter applied to be a Picerne employee. On the contrary, Ms. Knitter’s counsel conceded at oral argument that her busin ess, Lisa’s Handyman Service, sought a contractor-subcontractor re lationship with Picerne. See Oral Arg. Recording 12:47- 12:53. We agree. The “pre -qualification package” that Ms. Knitter submitted to Picerne listed Lisa’s Handyman Service as th e “subcontractor” submitting the package. Appx., Vol. II at 367. It also contained a confiden tiality agreement that identified Picerne as a “contractor” and Lisa’s Handyman Service as the “bidder” fo r a “subcontract.” Id. at-34- 370. Finally, Picerne’s written response to Ms. Knitter’s applica tion came from Picerne’s director of “Small Business/Subcontractor R ecruitment,” and it notified Ms. Knitter that Picerne was not accepting new su bcontractors in handyman services at the time. Id. at 393. Because Ms. Knitter was applying to be a Picerne subcontractor and not an employee, her claim of retaliatory denial of ve ndor status is not valid under Title VII and must fail.
III. CONCLUSION For the foregoing reasons, we affirm th e district court’s grant of summary judgment to Picerne.