### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3291
W ALTER V. L OVE , Plaintiff

- Appellant ,

v.
JP C ULLEN & S ONS , I NC

. , Defendant

- Appellee

.

____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:12

– cv

- 00689

- NJ

— Nancy Joseph , Magistrate Judge

.

____________________
A RGUED D ECEMBER 11, 2014

— D ECIDED M ARCH 9 , 201 5

____________________

Before W OOD , Chief Judge , and F LAUM and M ANION , C i rcuit Judges

. F LAUM , Circuit Judge

. In February 2008, Walter V. Love was dismissed from the construction site on which he worked after a physical altercation with another site worker. JP Cullen & Sons, Inc. was the general contractor responsible for the pro ject. Cullen employed a subcontractor

— Eugene Matthews, Inc.

— who employed a second subcontrac tor

— Union Contracting, Inc.

— which in turn employed Love.2 No. 13

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Love brought a Title VII action against Cullen, alleging that his job site dismissal was racially motivated. Since Cullen was not Love’s direct employer, Love needed to demonstrate that Cullen could still be held liable under Title VII as his i ndirect employer. The district court concluded that Love failed to d emonstrate such a relationship , and therefore granted summary judgment in favor of Cullen in September 2013

. We now affirm. I. Background J.P. Cullen & Sons, Inc. was the general contractor on the Milwaukee c ity h all r enovation p roject (“city hall project”) , which spanned from September 2005 through December 2008. One condition of Cullen’s contract with the c ity was its compliance with the c ity’s r esidency p reference p rogram, which required that a given percentage of all hours worked

on certain c ity contracts be allocated to unemployed res idents of a specified area. In order to ensure compliance with the residency program , Cullen selected a recruiting firm to aid in hiring. One of Cullen’s subcontractors on the renovation project was Eu gene Matthews, Inc. (“EMI), which, under the terms of its contract with Cullen, was permitted to select its own subcontractors within certain parameters (for instance, Cu llen required its subcontractors to hire union workers). One of EMI’s subcontractors w as Union Contracting, Inc. (“UCI”), which hired Walter V. Love to work on the city hall project. Love was hired by UCI as a foreman in June 2007 , and his duties included shipping and receiving, managing laborers, and ensuring that necessary materials were on site and properly staged. Love expected to continue working for UCI after completion of the c ity h all project

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UCI, which had no contractual relationship with Cullen, paid Love’s salary and provided all other benefits. UCI also set Love’s hours. Scott Henninger , the job superinten dent for UCI, received general work instructions from Cullen and passed those instructions on to Love. Cullen only gave sp ecific directions about how to carry out assignments if it r eviewed a finished product and found it unsat isfactory; u nder those circumstances , Cullen would communicate i nstructions for further work to a UCI supervisor.
Cullen’s contract with EMI also required that EMI fu rnish all labor, materials, equipment, and services necessary to complete its work. Howeve r, Cullen did make a few bulk purchases of materials that it provided to EMI. Cullen also controlled physical access to the project site. It further r equired all subcontractor employees to attend periodic safety training meetings. However, Cullen provided no additional training or instruction. Most relevant to this appeal, in the event of “serious incidents” involving threats to workplace safety or worker productivity, Cullen retained the right to investigate alleged misconduct by its subcontractors’ e mploy ees, to discipline them if necessary, and to permanently remove them from the job site. Cullen admits that it reserved the final decision regarding the continued presence of any worker on the project site. On February 28, 2008, Love, who is African

- Americ an, was involved in an altercation with Arthur Mahan, an other African

- American employee of a different subcontractor. The facts of the altercation are disputed i n this appeal. Love claims that Mahan confronted him and that Love attempted to verbally diffus e the situa tion. Cullen contends that Love4 No. 13

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may have pulled a knife 1 during the altercation and enlisted other site workers as “enforcers” to seek revenge on Mahan after the quarrel concluded

. A s a result of the altercation, Cullen’s superintendent , Don Ber endsen , ordered both M ahan and Love permanently removed from the job site, even though Berendsen supposedly concluded that Mahan was the instigator

. Berendsen apparently initially concluded that only Mahan should be removed, and that Love should be suspend ed from the job site for one day. However, Mahan’s employer

— Artega Construction

— evidently became upset by this decision and demanded that Love also be removed from the job site. Berendsen agreed and ordered both Mahan and Love permanently removed. Henninge r, UCI’s superintendent, attempted to persuade Beren dsen to reinstate Love , but Berendsen refused. Love contends that Berendsen threatened to end the contract with UCI if Love was not removed . After his removal, Love was unable to secure further employment with UCI, which had

no other pending projects to which it could assign him. A ccording to Love, there was another physical altercation b etween two Caucasian workers at the city hall project s ite that was similar to the Love

- Mahan argument, but resulted in no significant disciplinary action against either worker. While Love’s primary claim of racial discrimination d erives from Cullen’s removal of Love from the project site, Love also alleges se veral other instances of disparate trea t1 Love contends that Cullen’s superintendent concluded that Mahan had lied about the knife, and that Love had a cellular phone in his hand i nstead. However, the particular details of the altercation are ultimately irrelevant to our determination of whether Cullen was Love’s indirect

em ployer for Title VII purposes.No. 13

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ment on account of race that occurred prior to his dismissal. For example , Love notes that in November or December 2007, a Caucasian worker hung a noose at the construction site, which remained in place for two weeks despite nume rous co mplaints to Cullen from African

- American workers on the job site. Love also contends that Cau casian workers in the l unch area provided by Cullen routinely used the “N” word to describe their African

- American coworkers. Love reported thi s behavior to Cullen’s mason foreman, but Cu llen made no attempt to stop the behavior. Love further co ntends that minority workers were repeatedly passed over for Cullen’s “Partner of the Month” award.
Love filed su it in the United States District Court f or the Eastern District of Wisconsin, alleging that Cullen discrim inated and retaliated against him on the basis of race in viol ation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq

. Both parties consented to the entry of final judgm ent by a magistrate judge. Cullen moved for summary judgment on the ground that it was not Love’s employer for Title VII purposes. Although the district court recognized that a defendant who is not a direct employer may neverth eless be subject to Title VII liability if the plaintiff demo nstrates that the de fendant functioned as a de fac to or indirect employer, the court found that Love failed to make the re quisite demonstration. The court ultimately concluded that “indirect employer liability depends on the amount of co ntrol a putative Title VII defendant exerts over the plaintiff’s employment.” Love v. JP Cullen & Sons, Inc. , 971 F. Supp. 2d 862 , 865 (E.D. Wis. 2013). The court conducted a careful analysis of the nature and extent of the control that Cullen exercised over Love’s employment and determined that , based on the undisputed evidence in the rec ord, Cullen was6 No. 13

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not Love’s employer for Title VII purposes. The district court subsequently granted summary judgment to Cullen. Love appeals.
II . Discussion
We review a district court’s grant of sum mary judgment de novo

. Stable Inv. P’ ship v. Vilsack , 775 F.3d 910, 915 (7th Cir. 2015)

. In reviewing a motion for summary judgment, the court must construe all facts and inferences in favor of the nonmoving party. Foskett v. Great Wolf Resorts, Inc. , 518 F.3d 518, 522 (7th Cir. 2008). Summary judgme nt is appropriate when no genuine issue of material fact exists such that no reasonable jury could find for the nonmovant. Hedberg v. In d, Bell Tel. Co., Inc. , 47 F.3d 92 8, 931 (7th Cir. 1995). This appeal does not concern the merits of Love’s racial discrimination claims. Rather, we analyze whether Cullen

— who was not Love’s direct employer

— nevertheless exercised sufficient control over Love in the workplace such that Cu ll en is a proper defendant under Title VII. For reasons we a rticulate below, we conclude that Cullen exercise d in suff icient control over Love, such that no reasonable jury could conclude that Cullen was Love’s indirect employer under Title VII

. Under Title V II of the Civil Rights Act of 1964, it is u nlawful for an employer “to fail or refuse to hire or to di scharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employme nt, because of such i ndividual’s race, color, religion, sex, o r national origin.” 42 U.S.C. § 2000e

- 2(a)(1). Title VII defines “employer” as “a person engaged in an industry affecting commerce who hasNo. 13

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fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person,” 42 U.S.C. § 2000e(b), while an “employee” is defined broadly, as “an i ndividual employed by an employer.” 42 U.S.C. § 2000e(f). In order to bring a Title VII claim agai nst Cullen, Love
must prove the existence of an employer

– employee relatio nship. Knight v. United Farm Bureau Mut. Ins. Co. , 950 F.2d 377, 380 (7th Cir. 1991). It is undisputed that Love was not a d irect employee of Cullen; rather, Love was an employee of UCI, a subcontractor of EMI, which was a subcontractor of Cullen. However, a plaintiff may have multiple employers for the purpose of Title VII liability. See Tamayo v. Blagojevich , 526 F.3d 1074, 1088 (7th Cir. 2008). It is also well e stablished in this circuit that a plaintiff can, under certain limited ci rcumstances, bring a claim against a defendant who is not his direct employer. See EEOC v. Illinois , 69 F.3d 167, 169 (7th Cir. 1995).
The district court stated that “the standard for determi ning when an entity is a de facto [or indirect] employer is u nsettled” in this circuit. L ove , 971 F. Supp. 2d at 865. The di strict court identified two allegedly distinct tests that we have applied to determine whether a defe ndant can be deemed an indirect employer. The first i s a five

- factor test, developed in Knight v. United Farm Bureau Mutual Insurance Co. , 950 F.2d
at 378

– 79 . That test balances five factors relevant to an e mployer

– employee relationship: (1) the extent of the emplo yer’s control and supervision over the employee; (2) the kind of occupation and nature of skill required, including whet her skills were acquired on the job; (3) the employer’s respo nsibility for the costs of operation; (4) the method and form of8 No. 13

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p ayment and benefits; and (5) the length of the job commi tment. Id.
The district court also articulated a second test, which considers the amount of control exerted by the alleged de facto employer, see EEOC v. Illinois , 69 F.3d at 169 , with a particular e mphasis on the “economic realities” of the e mployment relationship. Tamayo , 526 F.3d at 1088

. Indeed, the parties also treat the “economic realities” inquiry and the Knight five

- factor analysis as competing standards

. Howe ver, the five

- factor Knight test and the “economic realities”
test are not two independent, mutually exclusive inquiries

. Rather, the Knight test is merely a more structured analysis of whether the putative employer exercised sufficient co ntrol, and whether th e “economic realities” are such that the putative employer can be held liable under Ti tle VII.
I n Knight itself , we conceptualize d the five factors as an operationalization of the “economic realities” test: [I]n reaching this conclusion [that plaintiff was an independent contrac tor rather than an e mployee], the court correctly recognized the use of the “economic realities” test which involves the application of the general principles of agency to the facts. Of several factors to be considered, the employer’s right to control is
t he most important when determining whether an individual is an employee or an indepen dent contractor

. Knight , 950 F.2 d at 37 8

– 79 (citations omitted). The Knight court went on to recite the five factors relied upon by the di s trict court, i d. , to which subse quent decisions have citedNo. 13

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as helpful in resolving whether an entity constitutes an e mployer for Title VII purposes

. See e.g. , Worth v. Tyer , 276 F.3d 249, 263 (7th Cir. 2008); s ee also Heinemeier v. Chemetco, Inc. , 246 F.3d 1 078, 1082 & n.3 (7th Cir. 2001 ) (stating that “[w] hen facing ques tions regarding the employer

– employee relatio nship under Title VII ... we ‘look to the ‘economic realities’ of the relationship and the degree of control the employer exe rcises’” (citing Knight , 950 F.2d at 378

– 80 , and arti culating the f ive Knight fac tors ) )

. Furthermore , the five

- factor Knight test and the “ econo mic realities ” inquiry are not substantively i ncompatible

. The

“ economic realities ” test purports to examine the amount of control that a de facto employer had over a plaintiff , while also considering the financial underpinnings of the relatio nship . The Knight five

- factor analysis als o examines the issue of control, by asking who provide d the relevant materials

an d instructions to the plaintiff, as well as the financial p arameters of the employment arrangement , by inquiring about form of payment and benefits. Thus , the five Knight factors are simply a more detailed application of the ec on omic and control considerations present in the “ economic realities ” test. W e therefore proceed by examin ing each Knight factor to determine both how much control Cullen exerted over Love, and also what the economic realities of their relationship were, in order to determine whether Cu llen may be liable under Title VII

. The first of the five Knight factors examines the extent to which the putative employer controlled or supervised the alleged employee , including whether the employer provided direction with respect to scheduling and performance of the work. Knight , 950 F.2d at 378. As we noted in Knight , the10 No. 13

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employer’s right to control is the “most important” consi deration in ascertaining the existence of an employer

– employee relationship. Id. In Alexander v. Rush North Shore Medical Center , we observed in our application of the “co ntrol factor” that “[i]f an employer has the right to control and direct the work of an individual, not only as to the resul t to be achieved, but also as to the details by which that result is achieved , an employ er/ employee relationship is likely to exist.” 101 F.3d 487, 493 (7th Cir. 1996) (emphasis added) . Here, Love generally received instructions directly from UCI. If Culle n reviewed a finished product and found it unsatisfactory , Cullen would communicate any further instructions to a UCI supervisor. This minimal supervision is essentially li mited to “the result to be achieved,” which militates against a finding of control.
However, our control analysis is further informed by this

c ourt’s opinion in EEOC v. Illinois , where we emphasized that, when control is examined, “the key powers are, nat urally, those of h iring and firing.” 69 F.3d at 171. Although EEOC dealt specifically with a claim brought under the Age Discrimination in Employment Act ( ADEA ) , it also consi dered the standa rd for establishing an employer

– employee relationship under Title VII. The EEOC court noted that if a defendant “pull[ed] the s trings in the background

... a point would soon be reached at which the [defendant] was the de facto employer and the [direct employers] merely its agents.” Id . at 171

– 72. Love argues that Cullen controlled his hiring because Cullen required its subcontractors to hire un ion workers. Cullen’s contract with the City of Milwaukee required that Cullen abide by the residency preference program, and inNo. 13

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order to ensure compliance, Cullen selected a recruiting firm to assist with the hiring of subcontractors. However, there is

no evidence that Cullen had any specific involvement in Love’s hiring

— UCI hired its own employees, including Love.
Yet the question of Love’s firing is a closer one. One of the crucial powers that Cullen retained with respect to Love was the ability to remove him permanently from the work site, which, in this case , essentially amounted to a termin ation of Love’s employmen t with UCI. Cull en admits that it retained the final decision regarding the continued presence of any worker on the project site if that individual presented a threat to workplace safety or worker productivity or wel lbeing. Here , Cullen ordered Love’s perm anent removal from the job site, over the objection of Love’s direct supervisor, UCI superintendent Henninger, who asked Cullen to keep Love on the project. Love even asserts that Cullen threatened to end UCI’s contract if Henninger did not comply with Lov e ’s removal . Because UCI had no other jobs t o which it could assign Love at the time , Love argues that his removal from the project rendered him effectively unemployed.
However, the record lacks any evidence that Cullen a ttempt ed to jeopardize Love’s cont inued employment with UCI or his placement on other UCI projects. The fact that no other UCI projects were available when Cullen dismissed Love from the c ity h all project was wholly unrelated to Cu llen’s actions

. And w hile it is true that Cullen had the ab ility to unilaterally remove Love from the job site without the consent of UCI, it is still true that Cullen did not directly hire Cullen, did not set his hours , and did not directly supervise his work. Therefore, Cullen ’s workplace control over Love

—12 No. 13

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or lack thereof

— weigh s in favor of finding that Cullen is not Love’s indirect employer under Ti tle VII

. The second factor in evaluating an indirect employment relationship is the type of occupation and nature of the skills required for the position in questio n, “including whether skills are obtained in the workplace.” Knight , 950 F.2d at 378

. Cullen required the employees of all subcontractors to a ttend periodic safety training meetings, but this was the only instruction Cullen provided; any other training was provi ded to Love by UCI. We conclude that this safety training alone is insufficient to weigh in favor of an employer

– employee relationship here

. It is expected that a general co ntractor w ill provide broad safety instructions to anyone working on its cons truction site. This small amount of co ntrol is not what we had in mind in Knight when we articula ted this factor. In Knight , the district court previously co ncluded that while the plaintiff obtained training from her p utative employer, because the plaintif f was free to leave the company at any time and use her skills elsewhere, this weighed in favor of finding that the company was not the plaintiff’s employer under Title VII. Id. at 379. We agreed with the district court’s analysis, concluding that “it was her applicatio n of those skills that mattered ” in determining whether an employer

– employee relationship existed. Id. at 380. Here, Love ob tained minimal instruction from Cullen in the form of safety trainings , and he was very likely able to use th e informa tion that he learned from these trainings on other construction jobs . Th us , Cullen’s safety trainings doNo. 13

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not weigh in favor of finding that Cullen was Love’s indirect or de facto employer under Title VII. 2
The third Knight factor relates to whether the pu tative employer was responsible for the costs of operation, inclu ding the costs of “equipment, supplies, fees, licenses, wor kplace, and maintenance of operations.” Id. at 378. Cullen’s contract with EMI required that EMI

— not Cullen

— furnish all labor, mater ials, equipment, and services necessary to complete its work. ( Presumably, EMI provided these mater ials to UCI, which in turn provide d them to Love. ) Because it

was EMI

— rather than Cullen

— that ultimately provided m aterial s to Love, this factor also weighs against finding an employer

– employee relationship between Cullen and Love. 3
The fourth factor, which considers whether the putative employer was responsible for providing payment and ben efits, Knight 950 F.2d at 378

– 79, also cuts against Love’s pos ition

. Love re ceived all paychecks and W

– 2s directly from UCI , not Cullen . There is no indication that Culle n ever paid

2 Our conclusion is consistent with the understanding of more than one district court in this circuit

. See, e.g. , Fly v. Walsh Constr. Co. , No. 3:10

- CV

126, 2011 WL 6152193, at *2 (N.D. Ind. Dec. 12, 2011); see also EEOC v. Foster Wheeler Constr., Inc. , No. 98

- C

- 1601, 1999 WL 515524, at *4 (N.D. Ill. July 14, 1999) (noting that “[s]ome subcontractor employees may have attended [Foster Wheeler]’s new hire orientation , ” but finding this fact did not rise to the level of establi shi ng an employment relationship).

3 Love note s that Cullen made a few bulk materials purchases, which it then provided to EMI. EMI, however, was one step remo ved from Love in the contractor

– subcontractor chain (EMI hired UCI, which in turn hired Love). Ho wever, t o hold that Cullen’s actions of providing mater ials to EMI had the effect of creating an employer

– employee relationship with Love would seem to over

- exaggerate the significance of thos e a ctions as they relate to Cullen’s relationship with Love

.14 No. 13

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Love for his work, or that Cullen provided Love any other benefits of employment, such as insurance or vacation time. Still, Love argues that C ullen effectively dictated his wages , which weighs in favor of an employer

– employee relatio nship. S ee e.g. , Heinemeier , 246 F.3d at 1083. Love argues this, however, by emphasizing that Cullen requir ed all subco ntractors to hire union workers, whose wages a re controlled by the union

. This is ultimately irrelevant. In EEOC , we co ncluded that fixing a minimum salary for teachers “is after all not much different from fixing a minimum wage for private as well as public employees, and no one supposes that the fed eral government is the indirect employer of all the wor kers covered by the federal minimum

- wage law.” 69 F.3d at 171. T herefore , we conclude that the pay ment and benefits factor also weighs against finding that Cullen is Love’s ind irect employer

. In other words, the “economic realities” of Cullen’s relationship with Love were not such that we should regard Cullen as Love’s de facto employer under T itle VII.
The final Knight factor, which examines the length of the employee’s job commitment and/or the expectations of the parties , 950 F.2 d at 379, also weighs against Love’s argument that Cullen is his indirect employer

. Love worked on the city hall project from June 2007 until February 2008 , or roughly eight months. It is undisputed that Love intende d to remain employed with UCI

— not Cullen

— after the c ity h all pro ject was completed. The record reveals no expectation on the part of Cullen that Love would continue working on Cu llen’s projects, nor does it reveal that Love expected the same. Given these e xpectations, we cannot conclude that this factor weighs in fa vor of an employer

– employee relationship here

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Based on our application of the five

- factor test, Love ca nnot demonstrate that Cullen “so far controlled [his] e mployment relationship that it was a ppropriate to regard [Cu llen] as [his] de facto or indirect employer.” EEOC v. Illinois , 69 F.3d at 169. Although we have previously held t hat a plaintiff can survive sum m a ry judgment even when not all factors support him , see e.g., Worth v. Tyer , 276 F.3d at 264, Love’s case is distinct in that none of the factors assessing Cullen’s level of control weigh in Love’s favor

. I n Worth , we held that an issue of material fact exist ed with respect to whether the plaintiff was an employee of the defendan t , even when some of our control analysis cut in favor of fin ding no employment relationship

. Id

. W e explained that al though plaintiff set her own schedule and did not receive health insurance, sick leave, or vacation time, id. at 263

– 64, she could neverth eless be deemed defendant’s employee b ecause “[defendant s ] controlled all of Worth’s work actions by setting her hours, assigning her projects and ap proving her work

. ... Defendants provided all the costs of operation for Worth’s work, and Tyer and Worth dis cussed the poss ibility of being promoted.” Id. at 264 (citations omitted)

. Here, none of the se considerations support Love ’s argument

. Cu llen did not set Love’s hours, did not assign or directly s upervise his projects, and did not have the ability to promote or demote Love, aside from its ability to remove Love from the job site for safety reasons. Additionally, the control fa ctors lacking in Worth are also absent here for Love

— such as the fact that Cullen did not provide Love with health insu rance, si ck leave, or vacation time. On these facts , a reason able jury could not find that Cullen exercised sufficient co ntrol over Love to be considered his indirect employer under16 No. 13

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Title VII, and we therefore find that the district court’s grant of summary judgmen t in favor of Cullen was appropriate. Finally, i n addition to his arguments about control, Love contend s that an issue of fact remains as to whether Cullen

was his indirect employer because Cullen “directed the di scriminatory act, practice, or policy of w hich [Love] is co mplaining. ” Worth , 276 F.3d at 260. Indeed, cases from this ci rcuit have stated that an entity other than the direct employer “may be considered an employer under Title VII

... if the [entity] ‘directed the discriminatory act, practice, or p olicy of which the employee is complaining

. ’ ” Tamayo , 526 F.3d at 1088. Exclusive of other considerations, it initially appears that Love makes a colorable argument that Cullen directed the allegedly discriminatory act, as it was Cullen that made the decision to remove Love from the city hall project, over the objection of Love’s direct employer UCI. However, two problems arise w ith Love’s argument. First, the “discriminatory act,” that Love complains of is

— for Title VII purposes

— his firing, which he claims is syno nymous with his dismissal from the city hall project job site. However, in assessing Cullen’s level of control over Lo ve, we determined that Cullen’s dismissal of Love from the city hall project was qualitatively different from the termination of Love’s employment relationship with UCI . In fact, we concluded above that , on the record before us, Cullen had no effect on Lov e’s continued employment with UCI, even if UCI happened not to have any jobs to which it could assign Love after his city hall project dismissal. Therefore, in a ssessing whether Cullen “directed the discriminatory act,” we first question that Love’s dismis sal from the city hall projectNo. 13

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c an be properly characterized a “discriminatory act” under Ti tle VII

. Second , evidence that a de facto employer “directed the discriminatory act” is not

— without more

— enough to esta blish a de facto employer

– employee relationsh ip under Title VII. In Tamayo v. Blagojevich , we considered whether the p utative employer “directed the discriminatory act , ” but co ncluded that the de facto employer

— the Illinois Department of Revenue (“IDOR”)

— exercised suffic ient control over the plain tif f such that it was a proper defendant under Title VII

. 526 F.3d at 108 9. We cited to evidence in the plaintiff’s co mplaint alleging that IDOR contro lled the plaintiff’s compe nsation , which was especially relevant given that the plai ntiff ’s suit was based on an alleged gender

- based disparity in pay

. Here, while Cullen’s involvement in Love’s dismissal from the city hall project is certainly relevant to their rel ationship, it is not enough to overcome our analysis under the Knight factors , which show s that C ullen

— in the aggregate

— exercised very little control over Love in the course of their relationship

. For these reasons, this final consideration does not alter our conclusion that Cullen exercised insufficient control over Love , and that Cullen is not liabl e as an indirect employer under Title VII.
III . Conclusion For the foregoing reasons, we A FFIRM the judgment of the district court.