Filed: May 5, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-1348

(CA-95-1604-A)

Abb W. Mangram,

Plaintiff - Appellant,

versus

General Motors Corporation,

Defendant - Appellee.

ORDER

The Court amends its opinion filed March 6, 1997, and cited at

108 F.3d 61 as follows:

On page 2, section 1, line 3 -- the attorney information for

Appellee is corrected to read: "J. Bradley Bennett, Ellen Fels

Berkman, MILLER, CASSIDY, LARROCA & LEWIN, L.L.P., Washington,

D.C., for Appellee."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ABB W. MANGRAM,

Plaintiff-Appellant,

v.

GENERAL MOTORS CORPORATION,

Defendant-Appellee, No. 96-1348

and

LEE M. MCDANIEL; KEN

WASHINGTON,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-95-1604-A)

Argued: January 27, 1997

Decided: March 6, 1997

Before WILKINSON, Chief Judge, and HAMILTON and

WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Hamilton and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Clinton A. Jackson, C. A. JACKSON & ASSOCIATES,

Washington, D.C., for Appellant. Joe R. Caldwell, Jr., MILLER,
CASSIDY, LARROCA & LEWIN, L.L.P., Washington, D.C., for

Appellee. ON BRIEF: David A. Branch, C. A. JACKSON & ASSOCIATES, Washington, D.C., for Appellant. J. Bradley Bennett,

Ellen Fels Berkman, MILLER, CASSIDY, LARROCA & LEWIN, 

L.L.P., Washington, D.C., for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Abb Mangram appeals the district court's dismissal of his Age Discrimination in Employment Act ("ADEA") claim against General

Motors Corporation. Mangram argues that the district court wrongly

determined that he was not an employee and therefore not covered

under the ADEA. We disagree. At no time during or after Mangram's

training to become an automobile dealer did he enter an employment

relationship with General Motors. Accordingly, we affirm the judgment of the district court.

I.

In October 1989, Abb Mangram joined General Motors' Minority

Dealership Development Program. This twelve-month program,

which provides dealership opportunities to minority entrepreneurs,

includes classroom and on-site dealership training. On October 11,

1989, Mangram formalized his entry into the Program by signing a

written Memorandum of Understanding ("MOU"). The MOU

described the Program and set forth the terms and conditions of Mangram's participation. The MOU included General Motors' agreement

to pay Mangram a monthly stipend of $3,000 during his enrollment.

At the conclusion of the Program in September 1990, General Motors

agreed to extend Mangram's stipend for an additional twelve months.

The MOU made clear, however, that "[a]s a participant in the

Academy program, you [Mangram] will not be an employee of General Motors Corporation." Furthermore, Mangram stipulated that he

was not entitled to a number of benefits that are normally associated

with an employment relationship including annual leave, retirement

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benefits, and the payment of social security taxes. The agreement also

stated, "In no event, however, shall your participation in the program

continue beyond 12 months."

The MOU further stipulated that a trainee's participation in the

Program carried no guarantee of a dealership. To the contrary, the

MOU provided that nothing in the agreement was intended to be construed as "constituting any assurance or promise by General Motors"

that trainees would be offered a dealership upon completion of the

Program.

After September 1991, Mangram ceased to draw any form of compensation from General Motors. Furthermore, after the training program ended in September 1990, he provided no further services to

General Motors. During this post-trainee period, Mangram's complaint alleges only that General Motors "required" him to maintain

$100,000 in liquid assets and forego "alternate business activities," if

he wished to accept a dealership should one become available.

Nearly four years after Mangram completed the Program, he

alleges that General Motors discriminated against him on account of

his age. According to Mangram's complaint, a representative of the

company told him on June 20, 1994, "Let's face it, nobody is going

to offer you a Dealership, none of the Divisions will take a chance on

you because you are too old; there are younger candidates with more

money." Mangram's EEOC Charge of Discrimination makes clear

that this alleged event is the sole basis for his claim. In the box

marked "Date Discrimination Took Place," Mangram identified

"6/20/94" as both the earliest and latest date on which the discrimination allegedly occurred.

On November 17, 1995, Mangram filed suit against General

Motors alleging discrimination in violation of the ADEA and several

state law causes of action. In response, General Motors filed a motion

to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that Mangram was

not covered by the ADEA because he was never a General Motors

employee. After a hearing, the district court granted General Motors'

motion, dismissing the ADEA claim with prejudice and Mangram's

remaining state law claims without prejudice. Mangram now appeals.

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II.

Section 4(a)(1) of the ADEA provides, in pertinent part:

 It shall be unlawful for an employer -- to fail or refuse

to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual's age.

29 U.S.C. § 623(a)(1). As we have made clear, the ADEA does not

cover all individuals. Rather, "an `individual' only has a cause of

action under this provision if he is an `employee.'" Garrett v. Phillips

Mills, Inc., 721 F.2d 979, 980 (4th Cir. 1983) (citation omitted).

The ADEA defines an "employee" simply as "an individual

employed by any employer." 29 U.S.C. § 630(f). To elucidate this

definition, the circuit adopted a test which focuses on the control the

putative employer exercises over the alleged employee, and eleven

other factors:

(1) the kind of occupation . . . (2) the skill required in the

particular occupation; (3) whether the "employer" or the

individual in question furnishes the equipment used and the

place of work; (4) the length of time during which the individual has worked; (5) the method of payment . . . (6) the

manner in which the work relationship is terminated . . . (7)

whether annual leave is afforded; (8) whether the work is an

integral part of the business of the "employer"; (9) whether

the worker accumulates retirement benefits; (10) whether

the "employer" pays social security taxes; and (11) the

intention of the parties.

Garrett, 721 F.2d at 982 (citation omitted); cf. Nationwide Mutual

Insurance Co. v. Darden, 503 U.S. 318, 322-23 (1992) (applying

common law principles to define the term "employee" under ERISA);

Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40

(1989) (applying common law principles to define the term "employee" under the Copyright Act).

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Mangram's claim must fail because he has not alleged facts which

would establish that he was an employee or that an employment relationship was ever contemplated during any phase of his relationship

with General Motors. The complaint establishes only that General

Motors exercised control over Mangram's schedule during the one

year that he was in the Program, and that General Motors furnished

the facilities for the Program. An examination of the other Garrett

factors reveals, however, that even while Mangram was a participant

in the Program, he was a student -- not a General Motors employee.

Most important with respect to the other Garrett factors, neither

party intended Mangram's participation in the Program to establish an

employment relationship. The MOU, which Mangram signed, specifically provided that he was not an employee. In Garrett, this court

relied on a similar agreement in determining that the plaintiff was not

an employee under the ADEA, emphasizing that "Phillips and Garrett,

in their written agreement, expressly provided that Garrett was not to

be an employee of Phillips." 721 F.2d at 982 (emphasis added). Other

circuits have also relied on written agreements in holding that a plaintiff was not an employee under the ADEA. See Oestman v. National

Farmers Union Ins. Co., 958 F.2d 303, 306 (10th Cir. 1992); Hayden

v. La-Z-Boy Chair Co., 9 F.3d 617, 622 (7th Cir. 1993).

The other Garrett factors cumulatively establish that there was no

employment relationship during Mangram's participation in the Program. General Motors never paid social security taxes for Mangram

during the time he participated in the Dealership Program or at any

point thereafter, nor did General Motors make any withholdings or

deductions from the monthly training stipend he received. As Mangram concedes, his stipend was not a salary, and he was solely

responsible for satisfying all state, local, and federal tax requirements.

Mangram never accumulated retirement benefits or earned annual

leave. Moreover, the Dealership Program was not an essential or "integral part" of General Motors' business, but rather was designed to

provide "an alternate path to Dealership ownership for minority entrepreneurs." Finally, Mangram's participation in the Program lasted for

only twelve months and ended by its own terms upon his graduation

in September 1990.

If Mangram was not an employee during his participation in the

Dealership Program, he certainly was not an employee on the date the

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alleged discrimination took place. On June 20, 1994, Mangram was

neither being paid by nor providing any services to General Motors.

Furthermore, General Motors did not exercise significant control over

Mangram's activities. Mangram's complaint alleges only that General

Motors "required" him to maintain $100,000 in liquid assets and

forego "alternate business activities," if he wished to pursue and

accept dealership opportunities. As the district court noted, these

minor constraints are far more in the nature of a contractual relationship than they are an employer-employee relationship. Any potential

contract claims Mangram might possess must be pursued in state

court.

Even if Mangram had succeeded in becoming a dealer for General

Motors, he still would not have been an employee. An individual who

shares in a firm's management or who exercises a significant amount

of independence from the firm is not considered an employee. See

Fountain v. Metcalf, Zima & Co., 925 F.2d 1398, 1401 (11th Cir.

1991); EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177, 1178 (7th Cir.

1984); Garrett, 721 F.2d at 982. As Mangram admits in his complaint, dealerships are incorporated separately from General Motors

and are not subsidiaries of General Motors. Indeed, if Mangram had

become a dealer, he would have been the proprietor of a separate corporation -- not a General Motors employee. See Moore v. Ford

Motor Co., 901 F. Supp. 1293, 1297 (N.D. Ill. 1995) ("[A] dealer/proprietor exercises too much independence to be considered an

employee of the automobile manufacturer.").

In sum, Mangram asks us to find that he held "employee" status as

a prospective dealer when he would not have held that status if he had

actually become a General Motors dealer. Mangram at best has demonstrated that he was a trainee for a non-employment relationship. As

a prospective non-employee, Mangram simply cannot maintain an

employment discrimination claim.

III.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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