United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
Ms. Meda Bittermann and Mr. Doru Bittermann worked as
volunteer campground hosts at the Rio Bravo Campground in
Taos, New Mexico. They claim that their Bureau of Land
Management (BLM) supervisors violated their civil rights. Ms.
Bittermann alleges that she was subjected to ongoing sexual
harassment. Both plaintiffs allege that they were fired in
retaliation for complaining of the sexual harassment. Since
the BLM is a division of the Department of the Interior,
Plaintiffs sued Defendant Ryan Zinke in his official capacity
as Secretary of the Interior. He argues that Plaintiffs'
claims should be dismissed because they are not BLM
“employees” and only employees can bring actions
under Title VII of the Civil Rights Act of 1964. Having
reviewed the submissions of counsel and relevant law, the
Court will deny Defendant's Motion to
worked as volunteer “Campground Hosts” at the Rio
Bravo Campground within the Rio Grande del Norte National
Monument in Taos County, New Mexico from April 1, 2016, until
September 13, 2017. (Doc. 1 (Compl.) ¶¶ 4, 16-17,
63.) In that role, Plaintiffs were responsible for
“taking care of the campground by keeping it clean and
in good operating mode; cleaning the bathrooms, showers and
grills; and serving the needs of campers” as well as
“greet[ing] campers and recreational users, and
ensur[ing] fee and regulation compliance.”
(Id. ¶ 18.) Plaintiffs worked as campground
hosts from 8:30 a.m. to 4:30 p.m. five days a week and were
each paid $20.00 per day for their services, for a total of
$100.00 per week. (See Id. ¶¶ 19, 22.) Ms.
Bittermann also worked eight hours per week at the Visitor
Center, which involved “selling merchandise, keeping
the area clean and assisting customers with directions,
information and answering their questions, selling federal
passes and conducting book sales.” (Id. ¶
of their contract as volunteer campground hosts, Plaintiffs
were allowed to park their personal camper trailer at the
campground for free, which would otherwise cost $15.00 per
day. (Id. ¶ 23.) “Plaintiffs also
received propane, electricity, and water/sewage for their
camper trailer without charge, a[nd] regular campers were
charged for such utilities.” (Id.) Plaintiffs
were allowed to use an official BLM vehicle and were
reimbursed for mileage at the same rate as other BLM
employees. (Id. ¶ 24.) Plaintiffs were given
BLM uniforms, gloves, and other protective gear, and were
insured for work-related injuries under the BLM's
workers' compensation program. (See Id.
¶¶ 25-26.) The BLM provided Plaintiffs with free
training courses, including a CPR class, and Plaintiffs were
also given passes to stay at other campgrounds for free.
(Id. ¶¶ 27-28.)
was common practice for persons contracting with Defendant
Agency to eventually become BLM federal employees”
(id. ¶ 31), and Plaintiffs' supervisor and
campground manager Randy Roch had promised Plaintiffs future
employment (id. ¶¶ 29-30). Barry Weinstock
was an assistant manager and was Ms. Bittermann's
supervisor at the Visitor Center. (See Id.
¶¶ 33, 35.) In June 2017, Mr. Weinstock began
sexually harassing Ms. Bittermann, which included unwelcome
touching and hugging, making offensive sexual remarks and
comments about Ms. Bittermann's appearance, and
repeatedly inviting her out for drinks and creating
situations in which Ms. Bittermann was forced to be alone
with him. (Id. ¶¶ 36-47.) About a month
after the sexual harassment began, Ms. Bittermann “in
clear language told Weinstock that she was not interested in
his sexual advances, that she was married, and that she and
Weinstock were just working together.” (Id.
¶ 48.) Mr. Weinstock then began complaining frequently
that Ms. Bittermann was “always late, ” making
offensive remarks about her accent and “workstyle,
” and yelling at her repeatedly. (Id.
Bittermann twice reported Mr. Weinstock's harassing and
retaliatory behavior to Mr. Roch, and on September 5, 2017,
met with Mr. Roch to again complain of Mr. Weinstock's
behavior. (Id. ¶¶ 56, 61-62.) Mr.
Bittermann was also present during this in-person meeting.
(Id. ¶ 62.) Approximately one week later, Mr.
Roch “came to talk to [Plaintiffs] and started the
conversation with the words, ‘I am here to ruin your
day' and terminated both [Plaintiffs] on the pretext of
‘complaints we received from people about your
work.'” (Id. ¶ 63.)
filed formal Equal Employment Opportunity (EEO)
discrimination complaints- Ms. Bittermann's complaint
alleged both discrimination on the basis of sex (sexual
harassment) and retaliation, and Mr. Bittermann's
complaint alleged retaliation. (Id. ¶¶
7-8.) After receiving final agency decisions, Plaintiffs
timely filed suit in this Court, alleging sex discrimination
and retaliation in violation of Title VII of the Civil Rights
Act of 1964. (Id. ¶¶ 75-91.) Defendant has
moved to dismiss the claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), arguing that Plaintiffs have failed to
state a claim for which relief may be granted because they
“have failed to plead any facts to support the
conclusory assertion that Plaintiffs, who admittedly worked
as volunteer Campground Hosts and received only insignificant
benefits incidental to their Campground Host duties, were
employees of Defendant.” (See Doc. 13 at 3.)
reviewing a motion to dismiss under Rule 12(b)(6), the Court
“must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most
favorable to the plaintiff.” In re Gold Res. Corp.
Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015)
(internal citation omitted). “To survive a motion to
dismiss, ” the complaint does not need to contain
“detailed factual allegations, ” but it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556).
VII of the Civil Rights Act of 1964 provides in relevant part
that it is “an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national
origin . . . .” 42 U.S.C. § 2000e-2(a)(1). The
Tenth Circuit has held that individuals bringing claims under
Title VII must have “an employment relationship”
with the defendant in order to maintain a valid claim.
See Williams v. Meese, 926 F.2d 994, 997 (10th Cir.
1991). However, “employee” is defined in Title
VII only as “an individual employed by an employer,
” see § 2000e(f), a definition the
Supreme Court has described as “completely circular and
explains nothing.” Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 323 (1992) (describing an
identical definition of “employee” in the
Employee Retirement Income Security Act).
result, “[w]hether a plaintiff is an
‘employee' for purposes of Title VII is a question
of federal law” requiring additional analysis beyond
the statutory definition. See Williams, 926 F.2d at
997 (citation omitted). The Tenth Circuit has joined the
majority of circuits in employing the “threshold
remuneration test” to determine when volunteers may be
considered “employees” for federal employment
purposes. See McGuinness v. Univ. of N.M. Sch. of
Med., 170 F.3d 974, 979 (10th Cir. 1998) (citing
O'Connor v. Davis, 126 F.3d 112, 116 (2d Cir.
1997), cert. denied, 522 U.S. 1114 (1998)) (medical
student was not an “employee” entitled to bring a
discrimination claim under the Americans with Disabilities
Act (ADA) because he received no remuneration from the
medical school); see also Johnston v.
Espinoza-Gonzalez, No. 16-CV-00308-CMA-KLM, 2016 WL
7188524, at *4 (D. Colo. Dec. 12, 2016) (“The Tenth
Circuit . . . has joined the Second, Fourth, Fifth, Eighth,
and Eleventh Circuits in adopting a threshold-remuneration
test for cases where the putative employee is not paid for
his or her work.”).
threshold remuneration test requires a two-step inquiry to
determine if a volunteer is an “employee” under
federal law. First, the volunteer must prove that they
receive remuneration for their work, which may take the form
of “significant indirect benefits.” Juino v.
Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 435-37
(5th Cir. 2013). “Remuneration may consist of either
direct compensation, such as a salary or wages, or indirect
benefits that are not merely incidental to the activity
performed.” Id. at 435. If the volunteer can
show that they received remuneration for their work, then the
Court will employ the common-law agency test to determine
whether an employment relationship exists, which involves
analyzing various factors ...