Volunteer not entitled to Title VII protection says Fifth Circuit.

Juino v. Livingston Parish Fire District No. 5,  No. 12-30274 (5th Cir. May 30, 2013).

This is a Title VII case of first impression for the Fifth Circuit Court of Appeals where the trial court ruled a volunteer firefighter was not an “employee” within the meaning of Title VII and dismissed her appeal.

Juino was a volunteer firefighter with District 5 who claims that during her tenure a fellow firefighter subjected her to sexual harassment which continued even after her report to supervisors. Juino claims she was constructively discharged due to the harassment and filed suit.  The trial court granted District 5’s summary judgment holding Juino was not an “employee” for Title VII purposes and therefore not entitled to its protection.  Juino appealed but the Fifth Circuit affirmed.

As a matter of first impression, the Fifth Circuit analyzed the different tests used by other circuits. It adopted the threshold-remuneration test accepted by the Second, Fourth, Eighth, Tenth, and Eleventh Circuits. Under this test, courts conduct a two-step inquiry by requiring that a volunteer first show remuneration as a threshold matter before proceeding to the second step – analyzing the putative employment relationship under the common law agency test. 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.  The court held that Juino’s listed remuneration ($2.00 per fire/emergency call; a life insurance policy; a full firefighter’s uniform and badge; firefighting and emergency response gear; and firefighting and emergency first-response training) were merely incidental to the job performed.  She was therefore not an employee entitled to Title VII protection so the court affirmed the trial court’s dismissal.

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