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Bittermann v. Zinke

United States District Court, D. New Mexico

March 6, 2019




         Plaintiffs 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 Dismiss.

         I. Background[1]

         Plaintiffs 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. ¶ 20.)

         As part 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.)

         “It 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. ¶¶ 49-60.)

         Ms. 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.)

         Plaintiffs 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.)

         II. Legal Standard

         In 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).

         III. Analysis

         Title 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).

         As a 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);[2] 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.”).

         The 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 ...

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