Th e Honorable Richard W. Goldberg, Judge, United States Court o f 1 International Trade, sitting by designation. The Honorable Michael J. Davis, United States District Judge for the District 2 of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2833

___________ Cara Lindquist, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Alan Condra and Hormel * Foods Corporation, * [UNPUBLISHED] * Appellees. *

___________ Submitted: March 13, 1998 Filed: July 6, 1998

___________ Before WOLLMAN and HANSEN, Circuit Judges, and GOLDB ERG, District Judge. 1

___________ PER CURIAM. Cara Li ndquist appeals from an order of the district court granting summar y 2 judgment in favor of Alan Condra and Hormel Foods Corporation in this sexua l harassment and sex discrimination action. Because the district court found that-2-

Lindqui stwas not an employee of Hormel, but instead an independent contractor, i t concluded that Lindquist was not e ntitled to sue under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et. seq. (1994) ("T itle VII"). On appeal, Lindquist argues that the district co urt ignored the extent to which Hormel controlled the means and the mannero f her work performance, and in doing so committed reversible error. W e affirm the judgment of the district court. Lindquist's professional relationship with Hormel began while she was full y employed at QTV Productions, a department of KSMQ-TV in Austin, Minnesota. At some point during her tenure at QTV Productions, Hormel hired QTV Productions to help produce certain internal training and product information videotapes. QT V Productions staffed Lindquist on approximately eight of these projects. It was in this context that Lindquist first began to work with Condra. At that time, Condra was the sup ervisor

of Hormel's Audio-Visual Services Department. Part of his jo b responsibilities included deciding when outside assistance was needed for a videotape project and, if needed, which independent contractor would be used.
In April 1994, Lindquist resigned from her position at QTV Productions

. Howev er, she continued to work intermittently on a free-lance basis for Hormel unti l November 1995. During this period of roughly 600 days, Lindquist worked on te n projects which were completed over a total of twent y-eight days. She billed Hormel on a purchase order/invo ice basis for each day of work or travel. Between July 1994 and April 1995, Lindquist was also a full-time employee at KAAL-TV in Austi n, Minnesota.
In Octo ber 1993, while Lindquist was still employed at QTV Productions , Condra and Lindquis t began a sexual relationship. The nature of this relationship is in dispute. Whi le Condra describes it as consensual, Lindquist characterizes it as sexual harassment. The relationship ended in October 19 95. Subsequently, Lindquist was not chosen to work on a project for Hormel in which she had expressed interest. She-3-

responded by filing this suit in the district court. Her complaint raises both federal and stat e law claims and seeks the recovery of punitive damages. Specifically she alleges that she was the victim of sexual harassment and sexual discrimination in violation of bothTitle VII and the Minnesota Human Rights Act, Minn. Stat. §363.03, Subds

. 1(2)(c) and 14, and that she was the victim of assault and battery. Hormel moved for summary judgment on all claims, argu ing that it was not liable to Lindquist for sexual discrimination under Title VII because she was never a n employee of Hormel; she was an independent contractor . The district court agreed

. It granted summary judgment on the Title VII claim and declined to exe rcise jurisdiction over the r emaining state law claims, dismissing them without prejudice. This appea l ensued.
Title VI I only protects those workers who are also employees fro m discriminatory employment practices in th e workplace. Wilde v. County of Kandiyohi , 15 F.3d 103, 104 (8 Cir. 1994). Its protections do not extend to independen t th contractors. Id. We determine whether an individual is a protected employee or a n un protected independent contractor by examining the working relationship using th e common law of agency. Id. at 105. In so doing, we consider a number of factors, none of which alone is dispositive. These factors include the "emplo yer's" right to control the means and manner of worker performance; the kind of occupation, with reference t o whether th e work is usually done under the direction of a supervisor or is done by a specialist without supervision; the skill required in the particular occupation; whether the "employer" or the individual furnishes the equipment used and the place of work; the method of payment, whether by time or by the job; the manner in which the work relationshi p is terminated; whether annual leave is afforded; whether the work is a n integral part of the business of the "employer"; whether the individual acc rues retirement benefits; whether the "employer" pays social security taxes; and th e intent of the parties. Wilde v. County of Kandiyohi , 811 F. Supp. 446, 451-52 (D. Minn.1993), aff'd , 15 F.3d 103. We review the district court's determination that-4-

Lindquist is an indepe ndent contractor de novo . Birchem v. Knights of Coumbus , 116 F.3d 310, 313 (8 Cir. 1997). th
On ap peal, Lindquist argues that the district court's assessment of a number o f thes e factors was faulty. In particular, she asserts that, at the very least, there is a genuin e issue of material fact regarding her employment status at Hormel because her work for Hormel was menial and closely supervised by Condra; the equipment that she used to complete the projects was provided by Hormel; the subject matter and location of the projects were chos en by Hormel; and her perception of the working relationship was that of employer/employee.
Afterr eviewing the record and considering it in the light most favorable t o Lind quist, we cannot agree. As noted above, Lindquist began working for Horme l indirectly through her employment at QTV Productions. After she resigned from QTV Prod uctions, she continued to work for Hormel intermittently on a project-by-projec t basis from April 1994 to November 1995. Over this 1 1⁄2 -year period, Lindquist was paid for twenty-eight days of work. She w as paid on a purchase order/ invoice basis at a flat rate of $400 per day. If the day ran over ten hours, she received an additional $55 per hour. For each day spent traveling to and from a project location, she charged $200. Lindquist submitted the invoices on her own stationa ry. Hormel paid her by check and, importantly did not withhold federal, stat e, or FICA taxes from her earnings. Lindquist ne ver accrued any annual leave or retirement benefits, nor did she received health insurance, life insurance, unemployment insurance, or sick leave.
Moreo ver, there was never an agreement, either written or oral, betwee n Lindquist and Hormel that obligated Hormel to hire Lindquist to work on project s requirin g outside assistance. Likewise, Lindquist herself was under no obligation t o work on anyprojects for Hormel. Furthermore, these video projects were ancillary to Hormel's business as a meat manufacturer and distributor. Finally, at no point during-5-

her working relationship did Lindquist ever submit a copy of her res ume, complete a job application form, or receive a performance evaluation. In light of these circumstances, we find Lindqu ist's arguments to be anemic. The eviden ce regarding the nature of Lindquist's work for Hormel and the level o f supervision exercised by Condra is murky, at best. Furthermore, alt hough it is clear that Hormel provided the equipment for Lindquist to use, and chose both the location and subject ma tter of each project, we are unpersuaded that this alone demonstrates tha t Lindquist was Hormel's employee. Finally, apart from her deposition statements tha t she c onsidered herself to be a Hormel employee, Lindquist has not adduced an y evidence to suggest that Hormel and Lindquist intended to create an employee/employer relationship. The district court properly addressed and rejected this contention. Having considered all of the arguments by Lindquist and finding them to b e without merit, we affirm the district court's order granting summary judgment in favor of Condra and Hormel. A true copy.
ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.