United States Court of Appeals

 

 

First Circuit.
Victoria Lis ALBERTY-VÉLEZ, Plaintiff, Appellant/Cross-Appellee,
v.
CORPORACIÓN DE PUERTO RICO PARA LA DIFUSIÓN PÚBLICA, d/b/a WIPR Channel 6, Defendant, Appellee/Cross-Appellant,
Jorge Inserni, Personally and as Executive Director, William Denizard; Coco Salazar; Conjugal Partnership Denizard-Salazar; Concepto Creativo; Members of the Board of Directors of the Corporación de Puerto Rico Para La Difusión Pública, d/b/a WIPR Channel 6; John Doe, 96CV1487; Richard Roe, 96CV1487; A to Z Insurance Co.; XYZ Insurance Co., Defendants.
Nos. 02-2187, 02-2188.
Heard Nov. 4, 2003.Decided March 2, 2004.
Synopsis
Background: Former television program host sued television station, alleging gender and pregnancy discrimination in violation of Title VII and Puerto Rico anti-discrimination laws. Following jury trial, the United States District Court for the District of Puerto Rico, Juan M. Perez-Gimenez, J., granted station’s motion for judgment as a matter of law. Host appealed. The Court of Appeals, 242 F.3d 418, vacated and remanded. The District Court, Justo Arenas, United States Magistrate Judge, granted summary judgment for station. Host appealed.
Holdings: The Court of Appeals, Howard, Circuit Judge, held that:
1 as a matter of apparent first impression, common law agency test applied to determine whether host was independent contractor or station’s employee under Title VII;
2 host was independent contractor, and thus not covered by Title VII; and
3 host’s status as independent contractor precluded her claims under Puerto Rico’s anti-discrimination laws.
Affirmed.
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1Federal Courts

Defects, Objections and Amendments; ?Striking Briefs
On review of grant of summary judgment, Court of Appeals would resolve against appellant any uncertainty as to undisputed facts arising from appellant’s failure to file compliant brief with appendix citations for her recitation of facts relevant to dispositive issue. F.R.A.P.Rule 28(a)(7), 28 U.S.C.A.
2 Cases that cite this headnote

170BFederal Courts
170BVIIICourts of Appeals
170BVIII(H)Briefs
170Bk715Defects, Objections and Amendments; ?Striking Briefs
2Federal Courts

Right of Review
A party may not appeal from a favorable judgment.
1 Case that cites this headnote

170BFederal Courts
170BVIIICourts of Appeals
170BVIII(B)Appellate Jurisdiction and Procedure in General
170Bk543Right of Review
170Bk543.1In General
3Federal Courts

Right of Review
Federal Courts

Appellee
Television station could not cross-appeal from denial of its motion seeking summary judgment on grounds that television program host’s independent contractor status precluded her employment discrimination claims when station received entire relief requested through summary judgment granted in its favor based on lack of evidence of discriminatory animus; however, station could argue, on appeal by program host, for affirming summary judgment ruling based on arguments that district court had rejected, and thus could contend that summary judgment was correct because program host was independent contractor.
3 Cases that cite this headnote

170BFederal Courts
170BVIIICourts of Appeals
170BVIII(B)Appellate Jurisdiction and Procedure in General
170Bk543Right of Review
170Bk543.1In General

170BFederal Courts
170BVIIICourts of Appeals
170BVIII(K)Scope, Standards, and Extent
170BVIII(K)1In General
170Bk771Parties Entitled to Allege Error
170Bk772Appellee
4Federal Courts

Theory and Grounds of Decision of Lower Court
Court of Appeals may affirm a summary judgment ruling on any basis apparent from the record.
0 Case that cites this headnote

170BFederal Courts
170BVIIICourts of Appeals
170BVIII(K)Scope, Standards, and Extent
170BVIII(K)1In General
170Bk759Theory and Grounds of Decision of Lower Court
170Bk759.1In General
5Federal Civil Procedure

Partial Summary Judgment
Partial summary judgment order is not final judgment, but is merely a pre-trial adjudication that certain issues are established for trial, and district court retains jurisdiction to modify such an order at any time.
4 Cases that cite this headnote

170AFederal Civil Procedure
170AXVIIJudgment
170AXVII(C)Summary Judgment
170AXVII(C)3Proceedings
170Ak2557Partial Summary Judgment
6Federal Civil Procedure

Partial Summary Judgment
If a district court revisits a partial summary judgment order, it must inform the parties and give them an opportunity to present evidence relating to the newly revived issue.
1 Case that cites this headnote

170AFederal Civil Procedure
170AXVIIJudgment
170AXVII(C)Summary Judgment
170AXVII(C)3Proceedings
170Ak2557Partial Summary Judgment
7Federal Civil Procedure

Partial Summary Judgment
District court could revisit issue of whether television program host was employee of television station for Title VII purposes, after granting partial summary judgment for program host on issue, when program host received adequate notice of court’s intent to revisit issue and was able to present evidence on the matter by responding to station’s summary judgment motion. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
2 Cases that cite this headnote

170AFederal Civil Procedure
170AXVIIJudgment
170AXVII(C)Summary Judgment
170AXVII(C)3Proceedings
170Ak2557Partial Summary Judgment
8Civil Rights

Nature and Existence of Employment Relationship
Title VII’s definition of “employee” does not cover independent contractors, and therefore independent contractor may not maintain a Title VII action against the entity with which she contracts. Civil Rights Act of 1964, § 701(f, k), 42 U.S.C.A. § 2000e(f, k).
6 Cases that cite this headnote

78Civil Rights
78IIEmployment Practices
78k1108Employers and Employees Affected
78k1110Nature and Existence of Employment Relationship
9Civil Rights

Nature and Existence of Employment Relationship
Common law agency test applied to determine whether television program host was independent contractor or television station’s employee under Title VII. Civil Rights Act of 1964, § 701(f), 42 U.S.C.A. § 2000e(f).
10 Cases that cite this headnote

78Civil Rights
78IIEmployment Practices
78k1108Employers and Employees Affected
78k1110Nature and Existence of Employment Relationship
10Labor and Employment

Independent Contractors and Their Employees
Under common law agency test for determining whether hired party is independent contractor or employee, court must consider hiring party’s right to control the manner and means by which the product is accomplished, and factors relevant to this inquiry include the skills required, the source of the instrumentalities and tools, the location of the work, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the extent of the hired party’s discretion over when and how long to work, the method of payment, the hired party’s role in hiring and paying assistants, whether the work is part of the regular business of the hiring party, whether the hiring party is in business, the provision of employee benefits, and the tax treatment of the hired party.
10 Cases that cite this headnote

231HLabor and Employment
231HIIn General
231Hk28Independent Contractors and Their Employees
231Hk29In General
(Formerly 255k1 Master and Servant)
11Labor and Employment

Independent Contractors and Their Employees
In considering factors generally relevant to determination of whether worker is independent contractor or employee, court must tailor factors to the relationship at issue, and should not consider factors that are not relevant to a particular case as favoring either side.
4 Cases that cite this headnote

231HLabor and Employment
231HIIn General
231Hk28Independent Contractors and Their Employees
231Hk29In General
(Formerly 255k1 Master and Servant)
12Civil Rights

Nature and Existence of Employment Relationship
Television program host was “independent contractor,” and thus was not covered by Title VII, in that host’s position was skilled one requiring talent and training not available on-the-job, host provided her costumes, jewelry, and other image-related supplies and services necessary to her performances, station could not assign host to work beyond filming hosted program, host received lump-sum fee per episode hosted, based on completion of filming, station did not provide host with benefits, and both host and station classified host’s income as deriving from professional services rendered, rather than wages earned, for tax purposes; that station controlled host’s work by directing her while filming, selecting filming sites, and requiring host to be on-call during filming days was insufficient to defeat independent contractor status in light of host’s ability to decline work. Civil Rights Act of 1964, § 701(f), 42 U.S.C.A. § 2000e(f).
2 Cases that cite this headnote

78Civil Rights
78IIEmployment Practices
78k1108Employers and Employees Affected
78k1110Nature and Existence of Employment Relationship
13Labor and Employment

Questions of Law and Fact as to Employment Status
Court may decide the question of whether a worker is an employee or an independent contractor as a matter of law if the factors point so favorably in one direction that a fact finder could not reasonably reach the opposite conclusion.
6 Cases that cite this headnote

231HLabor and Employment
231HIIn General
231Hk58Questions of Law and Fact as to Employment Status
(Formerly 255k43 Master and Servant)
14Labor and Employment

Particular Cases
That television station reserved right to approve sponsors providing costumes, jewelry, and other supplies and services to television program host did not preclude finding that program host was independent contractor, rather than station employee.
0 Case that cites this headnote

231HLabor and Employment
231HIIn General
231Hk28Independent Contractors and Their Employees
231Hk30Particular Cases
(Formerly 255k1 Master and Servant)
15Labor and Employment

Independent Contractors and Their Employees
Under common law agency test to determine whether worker is employee or independent contractor, company may require that it provide prior approval before an independent contractor takes an action or associates with an entity that could reflect poorly on the company.
1 Case that cites this headnote

231HLabor and Employment
231HIIn General
231Hk28Independent Contractors and Their Employees
231Hk29In General
(Formerly 255k5, 255k1 Master and Servant)
16Federal Courts

Constitutional and Civil Rights in General; ?Waiver
Determining employee status under Title VII is a matter of federal law. Civil Rights Act of 1964, § 701(f), 42 U.S.C.A. § 2000e(f).
0 Case that cites this headnote

170BFederal Courts
170BVIState Laws as Rules of Decision
170BVI(C)Application to Particular Matters
170Bk411Constitutional and Civil Rights in General; ?Waiver
17Civil Rights

Nature and Existence of Employment Relationship
Television program host’s status as employee of television station for purposes of Puerto Rico unemployment compensation system was irrelevant to determination of whether host was employee under Title VII, which was matter of federal law. Civil Rights Act of 1964, § 701(f), 42 U.S.C.A. § 2000e(f).
0 Case that cites this headnote

78Civil Rights
78IIEmployment Practices
78k1108Employers and Employees Affected
78k1110Nature and Existence of Employment Relationship
18Civil Rights

Nature and Existence of Employment Relationship
Television program host’s status as independent contractor precluded her claims for gender and pregnancy discrimination against television station under Puerto Rico’s anti-discrimination laws. 29 P.R.L.A. 146 et seq., 467 et seq.
1 Case that cites this headnote

78Civil Rights
78IIEmployment Practices
78k1108Employers and Employees Affected
78k1110Nature and Existence of Employment Relationship
Attorneys and Law Firms
*3 Alberto G. Estrella with whom William Estrella Law Offices, PSC was on brief, for appellant.
James D. No¨el, III with whom McConnell Vald`es was on brief, for appellee.
Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.
Opinion

HOWARD, Circuit Judge.
This pregnancy and gender discrimination case is before us for the second time. See Alberty-Vélez v. Corporación De Puerto Rico Para La Difusión Pública, 242 F.3d 418 (1st Cir.2001) (“Alberty-Vélez I ”). Despite its complicated history, this second appeal presents a familiar question-did the district court correctly grant summary judgment for the defendant? We conclude that summary disposition was appropriate because a reasonable fact finder could only conclude that the plaintiff was an independent contractor and therefore not covered by Title VII or the Puerto Rico anti-discrimination laws. Accordingly, we affirm.
I. Background and Prior Proceedings
1 Victoria Lis Alberty-Vélez brought suit against Corporación de Puerto Rico *4 para la Difusión Pública (“WIPR”) for pregnancy and gender discrimination, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, P.R. Laws Ann. Tit. 29, 146 et seq., and P.R. Laws Ann. Tit. 29, 467 et seq. Because our decision rests on Alberty’s independent contractor status, we limit our factual summary to the undisputed facts concerning the parties’ relationship.1
Alberty’s relationship with WIPR, a Puerto Rico television station, began in 1993, when she agreed to host its new show “Desde Mi Pueblo.” This program profiled municipalities throughout Puerto Rico by presenting interviews with residents and interesting information about the featured community. The show had three hosts, Alberty, Luis Antonio Rivera, and Deborah Carthy Deu. Alberty appeared on the program from July 1993 until November 1994. Instead of signing a single contract to host the show, Alberty signed a new contract for each episode. Each contract obligated Alberty to work a certain number of days (usually two) filming the show in a specific town. Under the parties’ arrangement, Alberty was not obliged to film additional episodes beyond the one for which she contracted, and WIPR was not obliged to enter into contracts with Alberty for additional episodes.
Filming of the show did not occur weekly, and Alberty was not obligated to WIPR during off weeks. On the days that Alberty filmed the show, she was on-call for the entire day. During her “off” time, in addition to preparing for future episodes of “Desde Mi Pueblo”, Alberty worked other jobs, including acting on another WIPR show entitled “Será Acaso Este Su Caso,” hosting a concert for the Piano Suzuki Company, and acting as the master of ceremonies for the graduation of the Academia Infantil Nairda Hernández.2 Alberty’s contracts did not permit WIPR to require her to do work other than film “Desde Mi Pueblo.”
While filming “Desde Mi Pueblo,” Alberty was directed by William Denizard, the show’s producer. He set the location and hours of filming, and established the basic content of the program. WIPR provided the equipment for filming (i.e., lights, camera, and makeup). Alberty was responsible for providing her clothing, shoes, accessories, hair stylist and the other services and materials required for her appearance on the show. She could either purchase these services and materials herself or locate sponsors to provide them for her. WIPR had to approve any sponsors that Alberty wished to use.
Alberty received a lump sum payment for each episode of “Desde Mi Pueblo” that she filmed, ranging from $400 to $550. To receive payment, Alberty presented a signed invoice to WIPR showing that she had performed the agreed upon work. WIPR did not withhold income or social security taxes from Alberty’s check and did not provide Alberty with benefits such as health insurance, life insurance, retirement, paid sick leave, maternity leave, or vacation. On her tax return, Alberty described her income as deriving *5 from professional services rendered, and WIPR did not provide Alberty with an Internal Revenue Service Form W-2. After her separation, Alberty received unemployment compensation from the Puerto Rico Department of Labor indicating that this agency considered her WIPR’s employee.
Alberty’s employee status has been contested throughout the course of this litigation. On December 24, 1998, the district court granted partial summary judgment for Alberty on this issue, see Fed.R.Civ.P. 56(d), declaring her an employee of WIPR. At the subsequent trial, the district court reversed course and granted WIPR’s motion for judgment as a matter of law, see Fed.R.Civ.P. 50, because Alberty was an independent contractor. In Alberty-Vélez I, 242 F.3d at 421-26, we vacated this judgment because the district court did not provide Alberty with notice of its intention to revisit the employee/independent contractor issue at trial, thereby denying Alberty a fair opportunity to contest this issue.
On remand, the parties consented to assigning the case to a magistrate judge. After the case was reassigned, WIPR filed a motion for summary judgment on the employee/independent contractor issue. Alberty opposed the motion both on the merits and on the ground that the issue should not be reconsidered in light of the earlier ruling declaring Alberty an employee. The district court entertained WIPR’s summary judgment motion but denied it because of factual disputes.3
23 Alberty and WIPR also cross-moved for summary judgment on the discrimination issue. The district court determined that there was no evidence of discriminatory animus by WIPR toward Alberty and accordingly entered judgment in WIPR’s favor. Alberty appealed.4
II. Summary Judgment Standard
We review summary judgment rulings de novo. See Serapion v. Martínez, 119 F.3d 982, 987 (1st Cir.1997). A court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
*6 4567 We may affirm a summary judgment ruling on any basis apparent from the record. See Fabiano v. Hopkins, 352 F.3d 447, 452 (1st Cir.2003). Although the district court granted summary judgment because Alberty failed to present evidence of unlawful discrimination, we resolve the matter on the threshold question of employee/independent contractor status. See supra at n. 4.5
III. Analysis
8 Title VII protects employees from discrimination based on pregnancy and gender. See 42 U.S.C. § 2000e(k); Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 277, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). The statute defines an “employee” as “an individual employed by an employer.” 42 U.S.C. § 2000e(f). This definition “is completely circular and explains nothing.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992); Alberty-Vélez I, 242 F.3d at 421. However, it is now clear that it does not cover independent contractors. See Dykes v. DePuy, Inc., 140 F.3d 31, 37 n. 6 (1st Cir.1998). Thus, an independent contractor may not maintain a Title VII action against the entity with which she contracts. See Alexander v. Rush North Med. Ctr., 101 F.3d 487, 492 (7th Cir.1996); Barbara Lindeman & Paul Grossman, Employment Discrimination Law, 1284 (3d ed.1996)
9 This circuit has yet to identify the test to apply to determine whether an individual meets Title VII’s definition of “employee.” Relying on Darden, we have applied the “common law agency test” in cases arising under other federal anti-discrimination statutes containing the same definition of “employee” as Title VII.6 See Dykes, 140 F.3d at 38 (applying common law test under Americans with Disabilities Act); Speen v. Crown Clothing Corp., 102 F.3d 625, 631 (1st Cir.1998) (applying common law test under ERISA and Age Discrimination Employment Act). We see no reason to apply a different test under Title VII and therefore will apply the common law test to determine whether Alberty was WIPR’s employee or an independent contractor. See, e.g., Farlow v. Wachovia Bank of N.C., 259 F.3d 309, 313-14 (4th Cir.2001) (applying common law agency test in Title VII case); Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 113-14 (2d Cir.2000) (same). See also Employment Discrimination Law, supra at 908 (3d ed.2002 supp.) (stating that after *7 “Darden most courts have utilized a common law agency test to determine whether a plaintiff is an employee under Title VII”).
101112 Under the common law test, a court must consider:
the hiring party’s right to control the manner and means by which the product is accomplished. Among other factors relevant to this inquiry are the skills required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
Dykes, 140 F.3d at 37-38 (quoting Darden, 503 U.S. at 323-24, 112 S.Ct. 1344). “The test provides ‘no shorthand formula or magic phrase that can be applied to find the answer, … all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.’ ” Id. at 37 (quoting Darden, 503 U.S. at 324, 112 S.Ct. 1344).7 However, in most situations, the extent to which the hiring party controls “the manner and means” by which the worker completes her tasks will be the most important factor in the analysis. See Eisenberg, 237 F.3d at 114 (citing cases).
13 At oral argument, Alberty conceded that there were no disputed issues of material fact concerning employment status. In such a case, a court may decide the employee/independent contractor question as a matter of law if the factors point so favorably in one direction that a fact finder could not reasonably reach the opposite conclusion. See Dykes, 140 F.3d at 38-39 (affirming grant of summary judgment concluding individual was independent contractor); Speen, 102 F.3d at 634 (affirming grant of judgment as a matter of law concluding individual was independent contractor).
Several factors favor classifying Alberty as an independent contractor. First, a television actress is a skilled position requiring talent and training not available on-the-job. Cf. Aymes v. Bonelli, 980 F.2d 857, 862 (2d Cir.1992) (“courts that have addressed the level of skill necessary to indicate that a party is an independent contractor have held … architects, photographers, … artists, [and] drafters … to be highly skilled independent contractors”) (citing cases). In this regard, Alberty possesses a master’s degree in public communications and journalism; is trained in dance, singing, and modeling; taught within the drama department at the University of Puerto Rico; and acted in several theater and television productions prior to her affiliation with “Desde Mi Pueblo.”
1415 Second, Alberty provided the “tools and instrumentalities” necessary for her to perform. Specifically, she provided, or obtained sponsors to provide, the costumes, jewelry, and other image-related supplies and services necessary for her appearance.8 Alberty disputes that this *8 factor favors independent contractor status because WIPR provided the “equipment necessary to tape the show.” Alberty’s argument is misplaced. The equipment necessary for Alberty to conduct her job as host of “Desde Mi Pueblo” related to her appearance on the show. Others provided equipment for filming and producing the show, but these were not the primary tools that Alberty used to perform her particular function. If we accepted this argument, independent contractors could never work on collaborative projects because other individuals often provide the equipment required for different aspects of the collaboration. See Hanson v. Friends of Minnesota Sinfonia, 181 F.Supp.2d 1003, 1008 (D.Minn.2002) (stating that independent-contractor musician provided “instrumentalities and tools” by providing instrument, even though symphony provided musical scores, rehearsal facilities, music stands, and concert schedules), aff’d sub nom. Lerohl v. Friends of Minnesota Sinfonia, 322 F.3d 486 (8th Cir.2003), cert. denied 540 U.S. 983, 124 S.Ct. 469, 157 L.Ed.2d 374 (2003).
Third, WIPR could not assign Alberty work in addition to filming “Desde Mi Pueblo.” Alberty’s contracts with WIPR specifically provided that WIPR hired her “professional services as Hostess for the Program Desde Mi Pueblo.” There is no evidence that WIPR assigned Alberty tasks in addition to work related to these tapings. To be sure, Alberty did other work for WIPR by taping episodes of “Será Acaso Este Su Caso”; however, for these engagements, she signed separate contracts and received separate remuneration.
Fourth, the method of payment favors independent contractor status. Alberty received a lump sum fee for each episode. Her compensation was based on completing the filming, not the time consumed. If she did not film an episode she did not get paid. See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 753, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (pay for “completion of a specific job [is] a method by which independent contractors are often compensated”) (quoting Holt v. Winpisinger, 811 F.2d 1532, 1540 (D.C.Cir.1987)).
Fifth, WIPR did not provide Alberty with benefits. She did not receive paid leave, health insurance, life insurance, or retirement benefits from WIPR.9 See, e.g., Farlow, 259 F.3d at 315 (stating that lack of benefits indicates independent contractor status); Aymes, 980 F.2d at 862 (same).
Sixth, Alberty’s tax treatment suggests independent contractor status. Both she and WIPR classified her income as deriving from professional services rendered rather than wages earned. See Dykes, 140 F.3d at 38; Speen, 102 F.3d at 633.
*9 Despite these factors favoring independent contractor status, Alberty argues that she was WIPR’s employee because WIPR controlled the manner of her work by directing her during filming, dictated the location of her work by selecting the filming sites, and determined the hours of her work by requiring her to be on-call during filming days. While “control” over the manner, location, and hours of work is often critical to the independent contractor/employee analysis, it must be considered in light of the work performed and the industry at issue. See Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir.1997). Considering the tasks that an actor performs, we do not believe that the sort of control identified by Alberty necessarily indicates employee status.
A recent Eighth Circuit case illustrates the point. See Lerohl, 322 F.3d 486. In Lerohl, the court considered the employment status of two “regular” musicians in the Minnesota Sinfonia. Id. at 489. The musicians argued that they were employees because the conductor selected the music, scheduled the rehearsals and concerts, and determined the manner in which the music would be played. Id. at 490. The court “emphatically” rejected the argument that the “control” exercised by the conductor necessarily demonstrated the musicians’ employee status because “work by independent contractors is often performed to the exacting specifications of the hiring party.” Id. Musicians participating in an orchestra are, by necessity, subject to the control and scheduling of the conductor because such control allows the symphony to perform as a single unit. See id. The court concluded that, in these circumstances, the relevant control issue was not whether the conductor could instruct the musicians “where to sit and when to play” but whether the musicians retained the discretion to decline to participate in Sinfonia concerts and to play elsewhere. Id. at 491.
We think that a similar analysis is apt here. Alberty’s work on “Desde Mi Pueblo” required her to film at the featured sites at the required times and to follow the instructions of the director. WIPR could only achieve its goal of producing its program by having Alberty follow these directions. Just as an orchestra musician is subject to the control of the conductor during concerts and rehearsals, an actor is subject to the control of the director during filming. To hold that this sort of control determines Alberty’s status would defy “common sense” as it would result in classifying all actors as employees, regardless of the other aspects of the relationship. Lerohl, 322 F.3d at 490; see also Reid, 490 U.S. at 752-53, 109 S.Ct. 2166 (sculptor was independent contractor even though association that hired him defined scene to be sculpted and specified most details of sculpture’s appearance including its scale and materials to be used); Powell-Ross v. All Star Radio, Inc., 68 Fair Empl. Prac. Cases 1148, 1153-54 (E.D.Pa.1995) (radio disk jockey was independent contractor under Title VII even though station required disk jockey to appear at station to perform show at certain times).10
Like the musicians in Lerohl, who could decline to play in future concerts, Alberty *10 could decline to host future “Desde Mi Pueblo” episodes by refusing to sign additional contracts. It is undisputed that “Alberty did not have any contractual obligation to continue working with WIPR and WIPR had no contractual obligation to continue renewing her contracts.” Thus, under the parties’ arrangement, Alberty controlled the extent to which she wished to commit her professional time to filming “Desde Mi Pueblo.” See Lerohl, 322 F.3d at 492.
In addition to control over the manner, location and time of the work, Alberty emphasizes additional facts which she claims favor employee status. First, she argues that, as a matter of “economic reality,” she was an employee of WIPR because this is the entity from which she derived most of her income. Some courts have applied an “economic reality test” to determine employee status under Title VII. See Armbruster v. Quinn, 711 F.2d 1332, 1340 (6th Cir.1983). Under this test, “employees are those who as a matter of economic reality are dependent upon the business to which they render service.” Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947). Other courts have applied a so-called “hybrid test” in which employee status is determined by measuring the economic reality of the relationship as well as the common law factors. See Nowlin v. Resolution Trust Corp., 33 F.3d 498, 505-06 (5th Cir.1994). In Speen, we declined to apply either of these tests, instead focusing solely on the common law test. See 102 F.3d at 632. Because the common law test does not consider “economic reality” to be an indicator of employee status, the fact that Alberty’s income derived primarily from WIPR does not weigh heavily in favor of employee status.
1617 Second, Alberty contends that we should consider the Puerto Rico Department of Labor’s determination that she was an “employee” eligible for unemployment compensation as indicating employee status under Title VII. Determining employee status under Title VII is a matter of federal law. See Alberty-Vélez I, 242 F.3d at 421. As such, Alberty’s status as an employee for purposes of the Puerto Rico unemployment compensation system is irrelevant to this analysis. See Serapion, 119 F.3d at 988-89 (concluding individual’s status as employee under Puerto Rico law i