Hines v. Grand Casinos L L C

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-30692
Summary Calendar
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KATY HINES,
Plaintiff-Appellee,
VERSUS
GRAND CASINOS OF LOUISIANA, LLCSSTUNICA-BILOXI,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
January 4, 2002
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Grand Casinos of Louisiana, LLC (“Grand
Casinos”), appeals a denial of its motion to
dismiss Katy Hines’s title VII claims. Grand
Casinos argues that the district court erred in
concluding that Grand Casinos was Hines’s
employer, in failing to join the Tunica-Biloxi
Indian Tribe of Louisiana (“the Indian Tribe”)
as a necessary and indispensable party under
FED. R. CIV. P. 19(a), and in failing to dismiss
Hines’s claims because joinder of the Indian
Tribe is not feasible under FED. R. CIV. P.
19(b). Finding no error, we affirm.
I.
Grand Casino Avoyelles is a gaming
enterprise owned and operat ed by the Indian
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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Tribe pursuant to the Indian Gaming
Regulatory Act, 25 U.S.C. § 2703. The Indian
Tribe entered into a Management and
Construction Agreement (“the agreement”)
with Grand Casinos. The agreement declared
Grand Casinos solely responsible for “all
business and affairs in connection with
financing, construction, improvement,
development, and day-to-day operation,
management and maintenance.” Grand
Casinos was assigned “exclusive responsibility
and authority to direct the selection, control
and discharge of all personnel performing
regular services for the Enterprise,” including
the duty to perform background checks, draft
personnel policies, design a job classification
and salary system, and establish an employee
grievance procedure.
Grand Casino promised to provide a
security force “comprised of security officers
employed directly by the Tribe, or under a
third party and the Tribe, who shall report to
the General Manager.” The General Manager
is, in turn, selected by Grand Casinos and ap-
proved by a tribal representative. The
agreement contradicts itself as to who employs
the General Manager, first stating that Grand
Casinos is the employer, but fourteen pages
later stating that the Tribe is.
Hines worked as a security officer at Grand
Casino Avoyelles. She alleges that her
supervisor, Patrick Laborde, made
inappropriate sexual remarks to her; when she
complained, the casino retaliated against her
through more difficult work assignments and
a demotion. Consequently, she suffered
medical problems, missed work, and was fired.
II.
Hines filed a complaint with the Equal
Employment Opportunity Commission,
received a right to sue letter, and sued Grand
Casinos. Grand Casinos argued that it was not
Hines’s employer, so she had failed to state an
essential element of her title VII claim under
FED. R. CIV. P. 12(b)(6). Grand Casinos also
argued that the Indian Tribe was an
indispensable party under rule 19(b), and thus
Hines’s failure to name the Indian Tribe as a
defendant mandated dismissal under rule
12(b)(7). While this motion was pending,
Hines filed employment discrimination claims
against Grand Casinos and the Indian Tribe in
tribal court.
The district court treated the motion to dis-
miss as a motion for summary judgment, which
it denied. The district court and this court
granted leave to appeal the denial of the
motion under 28 U.S.C. § 1292(b).
III.
Grand Casinos argues that the Indian Tribe,
not Grand Casinos, was Hines’s employer, so
the Indian the Tribe is an indispensable party.
FED. R. CIV. P. 19(a). Because title VII does
not apply to Indian tribes, 42 U.S.C. § 2000e,
joinder of the Indian Tribe is not feasible and
therefore, Grand Casinos argues, the suit
should be dismissed. FED. R. CIV. P. 12(b)(7),
19(b).
To determine whether a protected
employment relationship exists under Title
VII, we apply the “hybrid” common law con-
trol/economic realities test. Mares v. Marsh,
777 F.2d 1066 (5th Cir. 1985). “The right to
control an employee’s conduct is the most
important component of this test.”1 In evalu
1 Deal v. State Farm County Mut. Ins. Co., 5
F.3d 117, 119 (5th Cir. 1993); accord Fields v.
Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019
(continued...)

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ating this component, we look to who has the
power to hire, fire, supervise, and set the work
schedule for the employee. Deal, 5 F.3d at
119; Mares, 777 F.2d at 1068.
The agreement is unambiguous; Grand Ca-
sinos has total, nearly exclusive authority over
all perso nnel decisions. It hires and fires all
regular employees; it alone designs the
casino’s personnel policies, job classification
and salary system, and employee grievance
procedure; and it performs all employee
background checks. The fact that the Indian
Tribe preserved a veto power over other hiring
decisions and imposed an Indian-preference re-
quirement for hiring does not alter our
conclusion. See Fields, 906 F.2d at 1020;
Mares, 777 F.2d at 1068.
The Indian Tribe did pay Hines’s salary,
withhold her taxes, and provide her benefits,
satisfying the economic realities component of
this test. See Deal, 5. F.3d at 119. The
common law control component is the crucial
factor, however; the economic component is
secondary. Thus, where one party exercises
total control over hiring, firing, and
supervising an employee, it must be the
employer under title VII, regardless of whether
a different party exercises economic control.
Accordingly, the district court was correct to
conclude that Grand Casinos was Hines’s
employer.
IV.
A.
Grand Casinos argues that the federal and
tribal courts may render inconsistent
judgments as to who is Hines’s employer, and
the Indian Tribe should be joined to avoid this
risk. This argument is meritless.
There is nothing inconsistent in holding that
for purposes of title VII, Grand Casinos is
Hines’ employer, but under certain tribal or
state anti-discrimination laws, the Indian Tribe
is her employer. Nor is there any risk of doub-
le liability for the Indian Tribe. The agreement
renders Grand Casinos solely liable for any
title VII judgment against it; the Indian Tribe
has no duty to indemnify.
B.
Grand Casinos asserts that the Indian Tribe,
as a party to the agreement, has an interest in
how the agreement is interpreted, and this
interest makes it an indispensable party. But,
Grand Casinos fails to articulate any concrete
effect from this title VII suit on the Indian
Tribe. Even if it could, such a weak, indirect
interest would not be sufficient. The Indian
Tribe cannot be joined as a defendant under
rule 19(a) unless Hines has a cause of action
against it. See Vieux Carre Prop. Owners,
Residents & Assocs., Inc. v. Brown, 875 F.2d
453, 457 (5th Cir. 1989). Title VII explicitly
excludes Indian tribes from its scope, 42
U.S.C. § 2000e, and thus the Indian Tribe can-
not be joined.
C.
Grand Casinos contends that the Indian
Tribe has a “sovereign interest” in having this
suit heard in tribal court. We disagree. Indian
tribes enjoy limited sovereignty. Although
they have retained certain inherent powers as
sovereignsSSthe power to punish tribal
1(...continued)
(5th Cir. 1990); see also Nowlin, 33 F.3d at 506
(stating that “the right to control is an especially
crucial factor”); Mares, 777 F.2d at 1067 (opining
that the hybrid test “focuses more on the extent of
the employer’s right to control the means and
manner of the worker’s performance” (internal
quotation marks omitted)).

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offenders, to determine tribal membership, to
regulate domestic relationships among tribe
members, and prescribe rules of inheritance for
membersSSthey have been divested of nearly
all power to regulate relations with non-
members of the tribe. Montana v. United
States, 450 U.S. 544, 563 (1981). Only where
“necessary to protect tribal self-government or
to control internal relations” do they have sov-
ereign power over non-members. Id.
Hines’s claim involves two nonmembers, a
federal (not tribal) statute, and no possibility of
liability for the Indian Tribe. Grand Casinos
has not even alleged that this suit implicates
the Indian Tribe’s self-government or internal
relations. Accordingly, the district court did
not err in concluding that the Indian Tribe is
not indispensable under rule 19.
V.
Grand Casinos argues that the Hines is re-
quired to exhaust her remedies in tribal court
before the district court may hear them. As a
matter of comity, a federal court will not en-
join tribal court proceedings or rule on a tribal
court’s jurisdiction before tribal court remedies
are exhausted.2 None of these elements
applies to the instant suit, so the exhaustion
doctrine is inapposite.
The order denying Grand Casinos’ motion
to dismiss is AFFIRMED. We express no
view on the ultimate merits of this case.
2 Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9,
15-16 (1987); Nat’l Farmers Union Ins. Cos. v.
Crow Tribe of Indians, 471 U.S. 845, 857 (1985).

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