2d Circuit: Jury May Decide Whether Plaintiff Was an “Employee” or “Independent Contractor” in Title VII Retaliation Suit

In Knight v. State University of New York at Stony Brook, 880 F.3d 636 (2d Cir. Jan. 29,  2018), the Second Circuit held that “a trial court does not commit error by submitting the question of whether the plaintiff was the defendant’s employee to the jury.”

In this case, plaintiff (an African-American electrician) sued Defendant State University of New York at Stony Brook for discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., when it his employment after he reported racist graffiti in a bathroom located at his worksite.

At trial, a jury issued a verdict that plaintiff was not an “employee” of Stony Brook, and therefore did not make any determination about the other elements of plaintiff’s retaliation claim.

On appeal, plaintiff argued that “a judge, not a jury, should decide whether an individual is an employee, and that the district court therefore erred when it submitted that question to the jury.”

The court disagreed, noting that the court in Kirsch v. Fleet Street, Ltd., 148 F.3d 149 (2d Cir. 1998) – which it recognized as controlling authority – observed that “whether an individual is an employee is “regularly presented to juries that are instructed to return general verdicts, informed by the court’s instructions on the law and given the direction that if they find that the plaintiffs in question were employees.”

The court also held that it was not improper for the lower court to instruct the jury to use the factors identified by the Supreme Court in Community for Creative Non–Violence v. Reid, 490 U.S. 730, 751–52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) to determine whether he was Stony Brook’s “employee” within the meaning of Title VII.

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