Fichman v. Media Center
Filed January 14, 2008,
Cite as 05-16653

Jurisdiction Issue Upheld In Discrimination Claim

Media Center is a nonprofit corporation governed by a nine-member board of directors. It operates a community access television station in Reno and Sparks, Nevada. The company broadcasts local government meetings and programming supplied by about 80 independent producers. Like members of the board of directors, these producers received no salary or compensation from the company.

Fred Fichman was the executive director of Media Center from July 8, 2002 until he was terminated from the position on December 1, 2003. During that period, the company has only less than fifteen paid employees except for one two-week span of time.

Following his termination, Fichman sued Media Center for discrimination claims under the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA), among others.

In response, Media Center moved for a summary judgment on the grounds that the court lacked the jurisdiction to handle the case because:

• the company employed fewer than the twenty employees necessary to be governed by the ADEA


• fewer than the fifteen employees necessary for an employer to be governed by the ADA.

The district court granted Media Center’s motion for summary judgment. Fichman appealed the decision to the upper court.

In reviewing the case, the Ninth Circuit court of appeals affirmed the ruling, holding that the district court properly determined that Media Center was not an employer for purposes of either the ADEA or ADA.

In discussing the issue, the court pointed out that the key question was whether Media Center’s unpaid directors and independent producers constituted “employees” as defined in both ADEA and ADA.

If they did, the parties agreed that Media Center was subject to both laws. If not, then Media Center did not have the requisite number of employees to be governed by either the ADA or ADEA.

The appeals court resolved the issue and found that the district court was correct when it concluded that members of the board of directors could not be considered employees under the ADA and ADEA based on the following facts:

• Media Center did not hire or fire its directors; the board selected its own members.


• The directors were not compensated by Media Center.


• The company did not supervise or regulate the directors’ work.


• The directors did not report to someone higher in the organization in any traditional way.


• There was no evidence of a traditional employer-employee relationship or master-servant relationship between Media Center and the directors, and the television and radio producers.


• Further, in their depositions, the directors stated that they considered themselves volunteers, not employees.

In light of these factors, the independent program producers, likewise, could not be counted as employees within the definition of the two discrimination laws.

Thus the Ninth Circuit court of appeals affirmed the granting of summary judgment based on the following reasons:

• that Media Center had the insufficient number of employees to be considered "employer" under Age Discrimination in Employment Act and Americans with Disabilities Act


• members of board of directors and independent volunteer producers were not "employees" within the legal definition


• Therefore, the plaintiff (Fichman) failed to raise a genuine issue of fact.