x35103.doc

I.C. NO. X35103, JUSTIN ROBINETTE, Employee, Plaintiff v. DUKE UNIVERSITY, Employer, SELF-INSURED, Defendant.  OPINION AND AWARD by PHILLIP A. HOLMES, Deputy Commissioner, N.C. Industrial Commission.  Filed 22 July 2011.



This matter was heard before the undersigned in Durham on June 20, 2011.  The sole issue heard was whether Plaintiff was an employee of Duke University at the time of his alleged injury.  Testimony was taken at the hearing from Joseph Gonzales, Associate Dean of Residential Life; Justin Clapp, Residence Coordinator, and Delphine Goines, Claims Supervisor.  Plaintiff identified several exhibits which were marked as Plaintiff's exhibits and admitted into evidence.  Defendant identified one exhibit marked as Defendant's Exhibit 1 which was admitted into evidence.  This record in this matter closed on July 20, 2011.  This case is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Justin Robinette, Pro se, appearing.

	Defendant:	Duke University, Durham, North Carolina; Counsel of Record: Joyce T. Williams, appearing.

		Duke University, Durham, North Carolina; Charles C. Kyles, Stuart Law Firm, PLLC, appearing.

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The undersigned addresses the following:
ISSUE
Whether Plaintiff, who was a full-time student and a Resident Assistant (RA) at Duke University, was an "employee" as defined under the North Carolina Workers' Compensation Act.
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The parties make the following:
STIPULATIONS
Duke University regularly employs three or more employees and is bound by and subject to the provisions of the North Carolina Workers' Compensation Act.
Duke University is self-insured for purposes of workers' compensation coverage.
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The following findings of fact are based on a preponderance of the evidence in view of the entire record.
FINDINGS OF FACT
Plaintiff was a full time undergraduate student at Duke University beginning in Fall 2007 through Fall 2010 whereupon he successfully completed his course of study and graduated a semester early.  Plaintiff is currently enrolled as a law student at Rutgers University School of Law.
In his sophomore year, Plaintiff applied for and was awarded a student leadership role as a Resident Assistant (RA) with Duke University effective his junior year.  Plaintiff was awarded the RA role a second time his senior year.
The primary function of the RA role at the University was to serve as a student leader or peer-to-peer role model for younger students within the student dorm or residential community.  Only full time Duke University students were eligible to hold this role.
Because it was a peer-to-peer mentoring role within the student residential community, the RA role could not have been performed by ordinary employees.
Like student athletes, RAs received a scholarship or financial aid upon acceptance of the role.  The amount of the award included the value of the student's dorm room, food credits on the student's meal card, and up to $1,750 as an academic scholarship disbursed in four payments over the academic year.
The financial aid award amount did not vary based upon role performance or hours "worked" in the role.
The award was treated as financial aid and included in the student's financial aid award in the same manner as an outside scholarship.
The cash portion of the scholarship was not required to be reported as wages to the recipient on Federal Form W-2
Students seeking appointment to the RA role were asked to describe their prior leadership experience and were selected based upon their stated interest in developing these skills as well as their ability to develop peer-to-peer relationships.  The expressed and actual educational purpose of the RA role was a significant benefit to the student in addition to the financial aid that was awarded.
Plaintiff sought the RA role as a learning experience to gain skills he would need as a future leader in the "real world."
Approximately seventy-five percent (75%) of the RA role was spent in mentoring and community-building activities within the residential living area.  An example of a mentoring activity was the one-to-one communications between the RA and student-residents on the assigned floor.  Examples of types of communications included coaching a student-resident on how to improve communications between his/her roommate as well as talking with a student-resident on how to cope with being away from home for the first time.
Though the RAs were expected to perform these activities within the same code of conduct expected of all students, they received only general guidelines for carrying out these activities. These activities were not subject to direct control of a supervisor.
Approximately twenty-five percent (25%) of the RA role included the performance of minor administrative activities.  Examples of these minor activities included occasionally filling out a maintenance repair form or unlocking a dorm room door, and taking "call" on a rotational basis.  Taking "call" meant walking around the quad up to three times and checking that doors were not propped open. RAs enjoyed significant flexibility in choosing their availability to perform these minor tasks.
RAs were not required to "work" a specified number of days per week, but were generally available in the quad for a maximum of fifteen (15) hours per week.  Additional requirements of the RA role were the requirement to maintain a 2.5 GPA, remain in good disciplinary standing, and demonstrate exemplary personal conduct.
Another requirement was the execution of an express agreement between the parties that the role did not create an employment relationship, but rather a grant-award relationship.  Plaintiff executed this agreement in 2009 and again in 2010.
Periodically words such as "staff," "payday," or "paycheck," were used in informal communications with RAs, however, the use of these terms was discouraged and did not change the character of the grant-award relationship between the parties.
The RA role shared many similarities with other student leadership roles at the University.  Like the RA role, these other roles required the student to apply for the role, compete for selection, and receive role-based training.  Like the RA role, these roles provided interested students with the opportunity to develop their leadership skills.
The RA role was distinguishable from student-staff jobs at the University where the work activities were primarily performed for the University's benefit, the student-staff were subject to the direct control of supervisors, the student-staff displaced other employees, and the job was not intended to provide significant educational benefits to the students.  Student-staff working in these jobs received hourly rates of pay, recorded their work time on timesheets, and received biweekly paychecks that varied based upon the number of hours worked during the bi-weekly pay period.  Student-staff performing these jobs were employees for purposes of N.C. Gen. Stat. §97-2(2) as well as under federal wage and hour laws and their wages were reported on Federal Form W-2.
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Based upon the foregoing stipulations and findings of fact, the undersigned enters the following
CONCLUSIONS OF LAW
Plaintiff has the burden of proving that an employer-employee relationship existed at the time an injury by accident occurred.  Hughart v. Dasco Transp., Inc. 167 N.C. App. 685, 606 S.E.2d 379 (2005).  The existence of an employer-employee relationship is a "mixed question of fact and law."  Answering the question of fact refers to the terms of the agreement between the parties while the question of law refers to the relationship between the parties created by the agreement.  Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965).
The Act defines the term "employee," to include every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer.  N.C. Gen. Stat. §97-2(2).
The determination whether an injured person is an "employee" within the meaning of the Workers' Compensation Act is a jurisdictional one.  Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Lucas v. Li'l Gen. Stores, 280 N.C. 212, 221 S.E.2d 254 (1976); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E. 2d 433, rehearing denied (1988), Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).  The well accepted rule that the Act is to be liberally construed in favor of providing benefits to injured employees does not apply to jurisdictional questions.  The injured person has the burden to establish the jurisdiction of the Industrial Commission, which is predicated on the employment relationship, before the doctrine of liberal construction has any application.  Woodliff v. Fitzpatrick, __ N.C. App. __, 695 S.E.2d 503, 508 (2010).
To determine whether a person is an employee under the Act, the Commission may look to the common law meaning of "employee" and "employment."  Lucas v. Li'l General Stores, 289 N.C. 212, 221 S.E.2d 257 (1976); Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944); Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 374 S.E. 2d 472 (1988).  Generally, an employee is one who works for wages or salary, and is subject to the control of the party for whom work is being performed.  Denton v. South Mt. Pulpwood Co., 69 N.C. App. 366, 317 S.E.2d 433, cert. denied, 311 N.C. 753, 321 S.E.2d 131 (1984); Alford v. Victory Cab Co., 30 N.C. App. 657, 228 S.E.2d 43 (1976); Lucas v. Li'l General Stores, 289 N.C. 212, 221 S.E.2d 254 (1976).
Here, Plaintiff did not perform work in exchange for wages.  The financial benefits Plaintiff received were financial aid rather than wages.  The financial aid provided to RAs was considered as part of the more comprehensive financial aid package provided to students.  The financial aid provided to Plaintiff did not vary according to the amount or quality of "work" performed.  The cash payments were not required to be reported as wages for tax purposes.
Plaintiff performed the most important functions in his role as an RA independently of any supervision.  The majority of the RA's duties involved peer-to-peer mentoring and role-modeling, which Plaintiff and the other RAs performed completely independently.  Only a minority of administrative tasks were subject to the direction and control of Defendant.
Plaintiff and Defendant executed an agreement that expressly disclaimed any employment relationship.  Rather, the RA agreement created a grant-award relationship between Defendant and Plaintiff.  Although the terms of the agreement are not necessarily dispositive of the legal issue, the agreement is strong evidence that the intention of the parties was not to enter into any employment relationship.
Plaintiff's role as an RA was not to perform work for Defendant's benefit.  Rather, the RA role is a student leadership role intended primarily as an educational opportunity for the RAs themselves.  Plaintiff's application essays for the RA position emphasize his intent to develop leadership and communication skills as an RA to prepare himself for a desired career in politics.
The RAs' function is to improve residence hall life for all students, which does generate an incidental benefit for Defendant, but that does not outweigh the primary purpose of the RA role as an educational opportunity.  Residence hall life is only ancillary to the primary business purpose of Defendant as an institution of higher education.
Student RAs do not displace other workers.  The peer-to-peer counseling and mentoring that are the crux of the RA role could not have been performed by ordinary employees.
The relationship between a university and its RAs has been examined in depth in the context of federal wage and hour law.  Marshall v. Regis Educational Corp., 666 F.2d 1324 (10th Cir. 1981).  In Regis, the Tenth Circuit Court of Appeals held that an RA was not an employee of the college where the primary nature of the RA role was educational for the benefit of the student.  The comprehensive analysis by the Tenth Circuit is both instructive and persuasive, especially because the relationship between Plaintiff and Defendant is so closely modeled after the relationship between the parties in Regis.
Plaintiff, as an RA at Duke University, was not an employee of Defendant as defined by the N.C. Workers' Compensation Act.
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Based upon the foregoing stipulations, findings of fact, and conclusions of law, the undersigned enters the following:
A W A R D
1.	The matter is dismissed with prejudice due to lack of jurisdiction under the North Carolina Workers' Compensation Act.
2.	Each side shall pay its own costs.
It is further ordered that this case be removed from all hearing dockets.



			S/			
PHILLIP A. HOLMES
DEPUTY COMMISSIONER

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