Ashok V. Shah v. BANK OF AMERICA On Appeal from the United States District Court for the District of…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1652
ASHOK V. SHAH,
Appellant
v.
BANK OF AMERICA
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 07-cv-00554)
District Judge: Honorable Sue L. Robinson
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 8, 2009
Before: SLOVITER, AMBRO and GREENBERG , Circuit Judges
(Opinion filed: September 10, 2009)
OPINION
PER CURIAM
Ashok Shah, pro se, appeals from the District Court’s grant of the appellee’s
motion for summary judgment. For the reasons that follow, we will affirm the District

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Court’s order.
In 2006, Adecco, a temporary staffing agency, found a work assignment for Shah
with its client Bank of America (“BOA”). Shah was to work for BOA from December 4,
2006, to December 29, 2006. Shah had previously worked as a temporary employee for
MBNA before it was acquired by BOA. During his previous assignments, Shah and
another employee, Nancy Weeks, developed a personal relationship that ended in August
2001. Weeks later reported to her manager that Shah called her continuously at home and
at work, and supposedly drove by her house on multiple occasions. Shah testified that
Weeks asked him to call her and that she was the one who harassed him, but he never
reported the harassment to the police.
On December 4, 2006, Shah reported to work and was assigned to the same area as
Weeks, who was not in the office that day. One of Weeks’ coworkers who knew about
the situation between Shah and Weeks recognized him and notified management.
Management decided to avoid any problems. They informed Adecco that Shah’s services
were no longer needed, and escorted him out of the building without an explanation.
Shah worked a total of 3.75 hours that day. He was later informed that the reason for his
termination was a bad reference. The termination had no effect on his ability to find
further assignments from Adecco.
Shah then filed suit against BOA in the Superior Court of Delaware alleging
employment discrimination under Title VII of the Civil Rights Act and the Delaware

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Discrimination in Employment Act (“DDEA”). 42 U.S.C. § 2000e-2; 19 Del. Code Regs.
§ 711. In his suit, Shah, who is of Indian origin, alleged discrimination based upon race
and national origin. He sought compensatory damages in excess of one million dollars
and punitive damages of three billion dollars. BOA removed the case to the District of
Delaware, where BOA moved for summary judgment on the grounds that Shah could not
establish he was an employee for purposes of Title VII or the DDEA, could not establish
that he had exhausted his administrative remedies, and could not establish a prima facie
case of discrimination. On February 20, 2009, the District Court issued an order granting
BOA’s summary judgment motion. A timely notice of appeal followed.
Because summary judgment is only appropriate “where there is no issue of
material fact and judgment is appropriate as a matter of law, our review of a grant of
summary judgment is plenary.” Rosen v. Bezner, 996 F.2d 1527, 1530 (3d Cir. 1993)
(citing Jefferson Bank v. Progressive Cas. Ins. Co., 965 F.2d 1274, 1276 (3d Cir. 1992));
see Fed. R. Civ. P. 56(c). To survive a motion for summary judgment, the plaintiff
cannot rely on unsupported allegations in the complaint, and must present more than the
“mere existence of a scintilla of evidence” in his favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). After reviewing the record, we will affirm the District Court’s
grant of summary judgment.
To establish a claim under Title VII of the Civil Rights Act, Shah must first
establish that he in fact was an employee of BOA, and not of Adecco, his temporary

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Darden was an ERISA case, not a Title VII case. However, the statutory language is1
identical. Furthermore, the Supreme Court has applied Darden in other employment
discrimination contexts where the statutory definition of employee is the same as that in
ERISA. See Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 444-45 (2003).
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staffing agency. See Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113, 127-28 n.5
(3d Cir. 1998) (stating that, as under Title VII, “independent contractors are not
employees within the meaning of the ADEA”) (Scirica, J., concurring in part, dissenting
in part); see also Alexander v. Rush N. Shore Med. Ctr, 101 F.3d 487, 492 (7th Cir. 1996)
(a plaintiff must prove “‘the existence of an employment relationship in order to maintain
a Title VII action against [the defendant],” and “[i]ndependent contractors are not
protected by Title VII.’”).
In order to determine whether a person is an employee for purposes of Title VII,
the common law of agency and the traditional master-servant doctrine applies. See
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-24 (1992). The court should1
consider:
the hiring party’s right to control the manner and means by
which the product is accomplished [;] . . . the skill 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.

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The Court limited its analysis to Title VII standards because they are virtually2
identical to those of the DDEA.
It appears that Shah is relying upon the DDEA’s definition of employer. See 19 Del.3
Code Regs. § 710(6) (“‘Employer’ means any person employing 4 or more employees
within the State at the time of the alleged violation . . . .”).
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Id. at 323-24.
The District Court found that under Darden Shah was not an employee of BOA.2
After reviewing the record, we agree with that assessment. We first note that, as the
District Court pointed out, Shah does not in fact provide evidence showing that BOA is
his employer rather than Adecco. His brief to this Court states repeatedly that “I believe
Bank of America, Defendant is employer (sic) under § 710(6). ‘Employer’ means any
person Employing 4 or more persons at the time of the alleged violation.” While it is3
true that BOA qualifies as an employer under the DDEA in that it has more than four
employees, that alone is not evidence that Shah is among them. The record demonstrates
that Shah worked for BOA for fewer than four hours; that he continues to receive work
assignments through Adecco; that it is Adecco that assigns his rate of pay; that BOA
contacted Adecco before terminating Shah’s employment; and that following his
termination, Shah received unemployment benefits from Adecco, not BOA. Shah has
submitted no evidence rebutting BOA’s contention that he was not its employee at the
time of the dismissal. As a result, we find that the District Court properly granted BOA’s
summary judgment motion because there existed no genuine issue of material fact as to

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The District Court also held that Shah could not establish discrimination based upon4
race or national origin. We need not comment on the Court’s analysis because we find
that summary judgment was proper based upon the employment issue alone.
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whether Shah was an employee of BOA.4

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