[PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                              01/18/2000
                                No. 98-9608                THOMAS K. KAHN
                         ________________________              CLERK

                   D. C. Docket No. 96-00562-1-CV-GET

SHEILA WOLF,

                                                Plaintiff-Appellant,

                                   versus

COCA-COLA COMPANY, EILEEN HILBURN, et al.,

                                                Defendants-Appellees.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________
                            (January 18, 2000)


Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges.

BLACK, Circuit Judge:
      Appellant Sheila Wolf filed suit against Appellee Coca-Cola Company

(Coca-Cola) and a number of individual defendants after being terminated from

working at Coca-Cola as a computer programmer and analyst. The district court

granted the defendants’ motions for summary judgment on all of Appellant’s

claims. On appeal, Appellant challenges only the summary judgment on her

claims against Coca-Cola for benefits under the Employee Retirement Income

Security Act (ERISA), 29 U.S.C. §§ 1001-1461, benefits under the Consolidated

Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. §§ 1161-1169,

retaliation under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, and

retaliation under ERISA. We affirm.

                               I. BACKGROUND

      Appellant worked as a computer programmer and analyst at Coca-Cola from

February 1988 until she was terminated in March 1994. Appellant obtained this

work by answering an ad placed by Access, Inc. (Access), a staffing company

independent of Coca-Cola. Appellant’s only employment contract was with

Access; it provided that Appellant was an “independent contractor” of Access.

Appellant performed services at Coca-Cola pursuant to contracts between Access

and Coca-Cola. These contracts were one year in length and were renewed

annually. The contracts governed the rates of compensation and length of


                                        2
employment for Access workers working at Coca-Cola, including Appellant.

Appellant never obtained any written or oral agreement concerning her status at

Coca-Cola.

      In 1992, Appellant began working on a software project known as the ICS

project. Tensions developed, however, with the hardware employees at Coca-Cola,

known as the MCS group, over access rights and disk space on the computers. On

February 24, 1994, Appellant and her counsel met with a human resources officer

and a labor counsel from Coca-Cola (hereinafter “the Feb. 24 meeting”). At the

Feb. 24 meeting, Appellant presented allegations that MCS employees were

sabotaging the work of the ICS project. In addition, Appellant’s counsel stated in

his deposition that at the Feb. 24 meeting he “at some point . . . raised the issue that

[Appellant] appeared to be an employee and had claims under the Fair Labor

Standards Act, under ERISA. I can’t remember if I used the words Fair Labor. I

may have used Wage Labor Hour or something like that. Then I don’t remember.”

The evidence is undisputed that this meeting is the only time prior to Appellant’s

termination at which she may have asserted ERISA and FLSA claims to Coca-

Cola. On March 7, 1994, Appellant was terminated when Access was told that

Appellant’s services were no longer needed at Coca-Cola.




                                           3
                                 II. DISCUSSION

      We review de novo an order granting summary judgment, applying the same

legal standards as the district court. See Mitchell v. USBI Co., 

, 1354

(11th Cir. 1999). We will affirm the summary judgment for the moving party if,

viewing the evidence in the light most favorable to the non-moving party, there is

no genuine issue of material fact. See Crawford v. Babbitt, 

, 1325

(11th Cir. 1999).

A. Claims for Benefits Under ERISA and COBRA.

      To assert a claim under ERISA, the plaintiff must be either a “participant” or

a “beneficiary” of an ERISA plan. See 29 U.S.C. § 1132(a)(1). Appellant asserts

she is a participant in Coca-Cola’s ERISA plan because she is a former employee

who may be entitled to benefits from the plan. A participant is defined as “any

employee or former employee of an employer . . . who is or may become eligible to

receive a benefit of any type from” the ERISA plan. 

(emphasis

added). ERISA thus imposes two requirements for participant status. First, the

plaintiff must be an employee. Second, the plaintiff must be “according to the

language of the plan itself, eligible to receive a benefit under the plan. An

individual who fails on either prong lacks standing to bring a claim for benefits




                                          4
under a plan established pursuant to ERISA.” Clark v. E.I. DuPont DeNemours &

Co., Inc., No. 95-2845 (4th Cir. Jan. 9, 1997), 

(table).

       The first prong—whether the plaintiff is an employee—is an independent

review by the court of the employment relationship. The Supreme Court held in

Nationwide Mutual Insurance Co. v. Darden, 

, 319, 

,

1346 (1992), that the term “employee” as used in the ERISA statute refers to the

common law analysis, which distinguishes between employees and independent

contractors by examining at least 14 factors.1 Under the common law analysis,

how the employment relationship is described by the parties and the employment

documents is considered but is not dispositive. For example, in Daughtrey v.

Honeywell, Inc., 

(11th Cir. 1993), this Court concluded that the district

court had relied too heavily on the parties’ contract, which described the ERISA



       1
         The common law analysis is a consideration of at least the following factors:
       In determining whether a hired party is an employee under the general common
       law of agency, we consider the hiring party’s right to control the manner and
       means by which the product is accomplished. Among the other factors relevant to
       this inquiry are 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.

, 112 S.Ct. at 1348 (quoting Community for Creative Non-Violence v.
Reid, 

, 751-52, 

, 2178-79 (1989)).

                                              5
plaintiff as an independent contractor, in determining that the plaintiff was not an

employee. See 

Despite the wording of the contract, the plaintiff

had introduced sufficient evidence to raise a dispute of material fact over whether

she was a common law employee under the full multi-factor Darden analysis. See

the plaintiff is a “common law employee” of the company, the first

prong is established.

       The second prong—whether the plaintiff is eligible for benefits—is an

examination of the terms of the company’s ERISA plan. The plaintiff must be

eligible for benefits under the terms of the plan itself. This requirement is

necessary because companies are not required by ERISA to make their ERISA

plans available to all common law employees.2 See Abraham v. Exxon Corp., 

(5th Cir. 1996); Bronk v. Mountain States Tel. & Tel., Inc., 

          The only limitation imposed by ERISA appears in § 1052, which provides that a plan
may not condition eligibility on the employee completing “a period of service with the employer
or employers maintaining the plan extending beyond the later of the following dates (i) the date
on which the employee attains the age of 21; or (ii) the date on which he completes one year of
service.” 29 U.S.C. § 1052(a)(1)(A). This section continues: “A plan shall be treated as not
meeting the requirements of paragraph (1) unless it provides that any employee who has satisfied
the minimum age and service requirements specified in such paragraph, and who is otherwise
entitled to participate in the plan” is covered within the earlier of six months, or the beginning of
the first plan year, after meeting these requirements. 

(emphasis added). Thus,
the only limitations imposed by § 1052 are that an ERISA plan not exclude common law
employees on the basis of an age older than 21 or a term of service longer than one year—other
grounds for exclusion from ERISA plans are permitted. See Abraham v. Exxon Corp., 

, 1130 (5th Cir. 1996); Bronk v. Mountain States Tel. & Tel., Inc., 

, 1338
(10th Cir. 1998).

                                                 6
1335 (10th Cir. 1998). For example, the terms of the ERISA plan in Abraham

excluded “leased employees” from coverage. 

. The Fifth

Circuit concluded that although the leased-employee plaintiffs were common law

employees, see 

they were excluded by the plan and therefore had no

ERISA claim. See 

Similarly, because the ERISA plan in Bronk

covered only “regular employees,” 

, the Tenth Circuit held

that the plaintiffs, who were leased employees, could not prevail, despite their

status as common law employees, because the plan specifically excluded them.

See 

      Appellant asserts two recent Ninth Circuit cases stand for the proposition

that all common law employees are entitled to ERISA benefits. Those cases are

distinguishable from this case, however, because of important facts relating to the

second prong of ERISA standing. In Vizcaino v. Microsoft Corp., 

(9th Cir. 1997) (en banc), the Ninth Circuit held that Microsoft’s computer

programmer “freelancers” were common law employees, notwithstanding that their

contracts specifically described them as independent contractors without eligibility

for benefits. See 

Microsoft’s ERISA plan, however, expressly

made eligible for benefits any “common law employee . . . who is on the United

States payroll.” 

Thus, once the Ninth Circuit held that the first prong


                                          7
was met, under the terms of Microsoft’s plan the freelancers were eligible; the

court remanded for a determination whether the freelancers were on the United

States payroll. See 

Similarly, in Burrey v. Pacific Gas & Electric Co.,

(9th Cir. 1998), the plaintiffs were leased employees. See 

The ERISA plan excluded leased employees as defined in I.R.C. § 414(n). See 

That section of the I.R.C. defines a leased employee as a person who is not

an employee and who meets certain other criteria. See 

The Ninth

Circuit held that the I.R.C., like ERISA, refers to the common law definition of

employee when it uses the word “employee.” See 

The court therefore

reasoned that if a person is a common law employee, he or she is not a leased

employee under I.R.C. § 414(n). See 

the employer’s

plan incorporated the definition of leased employee in I.R.C. § 414(n) for

determining who is excluded, the plaintiffs were not excluded as leased employees,

under the terms of the plan, if they met the standard for common law employees.3

See 

Thus, contrary to Appellant’s argument, neither Vizcaino nor



       3
         Unlike Burrey, Coca-Cola’s ERISA plan does not incorporate by reference the
definition of “leased employees” from I.R.C. § 414(n). Instead, the plan provides its own
definition. Appellant’s argument that Burrey controls the interpretation of “leased employee”
under Coca-Cola’s plan therefore is incorrect. Cf. 

(holding that
although exclusion of leased employees from plan may adversely effect tax status under
Treasury regulations, court cannot add regulations’ requirements to the terms of the plan, so
leased employees are excluded by plan).

                                               8
Burrey holds that a person meeting the common law employee test must be given

ERISA benefits. Rather, Vizcaino and Burrey simply clarify that if the plan makes

all common law employees eligible, then meeting the first prong also will satisfy

the second prong. When the plan affirmatively excludes certain workers from

coverage, however, then meeting the first prong is not sufficient because, as

Abraham and Bronk hold, failing the second prong denies the plaintiff ERISA

standing.

      In this case, although Appellant may have a legitimate argument that she

was a common law employee of Coca-Cola, her claim for ERISA benefits fails the

second prong because she is specifically excluded from eligibility by the terms of

Coca-Cola’s ERISA plan. The plan includes regular employees and excludes

temporary and leased employees. The terms of Coca-Cola’s ERISA plan include

the following language:

      You’re eligible for coverage under the plan if you’re a regular
      employee of The Coca-Cola Company or one of its participating
      subsidiaries. You’re not eligible for coverage under the plan if you’re
      a temporary employee or seasonal employee, as defined by your
      employer . . .

A “regular employee” is

      An employee . . . who is not classified as a temporary employee and
      who is normally scheduled to work the number of hours per week and
      weeks per year that are standard for the division . . .


                                         9
Two parts of the plan do not use the “regular employee” definition (excluding

“temporary employees”), but these nevertheless exclude from eligibility “leased

employees,” defined as “individuals who perform services for the Company under

an agreement with a leasing organization.”

      The district court correctly found that Appellant failed to raise a genuine

issue of material fact demonstrating that she could be found to be eligible for

benefits under these terms. Significantly, Appellant’s status at Coca-Cola always

was temporary; her only contract was with Access, and Access’s contracts with

Coca-Cola were only one year in length and were renewed every year.

Furthermore, Appellant always was leased by Coca-Cola from Access. Finally,

Appellant has not shown any facts suggesting that she could be considered a

regular employee. To the contrary, for example, Appellant wore a different color

badge than those worn by regular employees, was paid by Access and requested

pay raises through Access, was not invited to events for regular Coca-Cola

employees such as the Christmas party, and Appellant herself testified in her

deposition that she did not consider herself a regular employee of Coca-Cola and

had made inquiries about becoming one. Thus, the district court did not err in

granting summary judgment to Coca-Cola on Appellant’s claim for ERISA




                                         10
benefits because Appellant was not eligible for benefits under the terms of Coca-

Cola’s ERISA plan.

      Appellant’s claim for benefits under COBRA is derivative of her claim for

ERISA benefits because COBRA provides a right to a continuation of ERISA plan

coverage after termination. See Mattive v. Healthsource of Savannah, Inc., 893 F.

Supp. 1556, 1558 (S.D. Ga. 1995). Therefore, because Appellant was not entitled

to benefits under Coca-Cola’s ERISA plan, the district court correctly held that the

“finding by the court that plaintiff is not entitled to ERISA benefits is

determinative regarding plaintiff’s entitlement to benefits under COBRA.”

B. Claim of Retaliation Under the FLSA.

      The FLSA protects persons against retaliation for asserting their rights under

the statute. See 29 U.S.C. § 215(a)(3). A prima facie case of FLSA retaliation

requires a demonstration by the plaintiff of the following: “(1) she engaged in

activity protected under [the] act; (2) she subsequently suffered adverse action by

the employer; and (3) a causal connection existed between the employee’s activity

and the adverse action.” Richmond v. Oneok, Inc., 

, 208-09 (10th Cir.

1997). If the employer asserts a legitimate reason for the adverse action, the

plaintiff may attempt to show pretext. See 

causation, the

plaintiff must prove that the adverse action would not have been taken “but for” the


                                          11
assertion of FLSA rights. See Reich v. Davis, 

, 965-66 (11th Cir.

1995).

       Although Appellant’s FLSA retaliation claim may meet the first element,4

the district court correctly found that Appellant’s claim fails the other two. The

second element requires that the adverse action be subsequent to the assertion of

FLSA rights. The record demonstrates, however, that there is only one occasion

prior to her termination when Appellant might have asserted FLSA rights—the

Feb. 24 meeting. We agree with the district court that the evidence regarding the

Feb. 24 meeting was insufficient to meet Appellant’s burden of producing a

dispute of material fact regarding whether she asserted FLSA rights before being

fired. The court found that “[a]t that meeting, plaintiff’s counsel later testified that

he stated that plaintiff ‘appeared’ to be an employee with a [FLSA] claim.

However, plaintiff’s counsel does not recall who raised the benefits issue or what

any of the individuals said.” This testimony, while favorable to the plaintiff,




       4
          Appellant would be protected by the FLSA if she were an employee of Coca-Cola under
the statute. The definition of “employee” under the FLSA is broader than that under ERISA.
See Nationwide Mut. Ins. Co. v. Darden, 

, 326, 

, 1350 (1992) (FLSA
definition much broader than common law employee analysis used under ERISA); Villarreal v.
Woodham, 

, 205 (11th Cir. 1997) (describing “economic reality” analysis under
FLSA). Thus, if Appellant were a common law employee of Coca-Cola for purposes of ERISA,
she also would be an employee under the FLSA.

                                             12
simply is too indefinite to meet Appellant’s burden of showing that she actually

asserted FLSA rights before being terminated.

      Similarly, Appellant’s evidence on the third element, causation, also is

insufficient to defeat summary judgment for Coca-Cola. Appellant must show she

would not have been fired but for her assertion of FLSA rights. Coca-Cola argues

it terminated Appellant for a legitimate reason—namely, her allegations that the

MCS employees were sabotaging the work of the ICS project. Appellant maintains

this proffered reason is a pretext for firing her for asserting FLSA rights. We agree

with the district court that Appellant’s only evidence of pretext is insufficient. Ben

Hilburn, a supervisor at Coca-Cola, related in his deposition a conversation with

his wife, Eileen Hilburn, a Coca-Cola superior of the supervisor who directly fired

Appellant. The district court noted that “Ben Hilburn testified in his deposition,

‘Well, she thought – thought that there were some overtime claims or some such

thing, but she didn’t really know.’” This testimony, which stands alone, is too

ambiguous to create a genuine dispute of material fact regarding whether Coca-

Cola’s legitimate explanation for Appellant’s termination was pretext.




                                          13
C. Claim of Retaliation Under ERISA.

      ERISA also protects employees against retaliation for asserting claims to

benefits under an ERISA plan. See 29 U.S.C. § 1140 (making it unlawful to

“discharge” a “participant” in an ERISA plan for asserting a claim for benefits). In

a retaliation case, “a plaintiff may establish a prima facie case of discrimination by

showing (1) that he is entitled to ERISA’s protection, (2) was qualified for the

position, and (3) was discharged under circumstances that give rise to an inference

of discrimination.” Gitlitz v. Compagnie Nationale Air France, 

, 559

(11th Cir. 1997) (quoting Clark v. Coats & Clark, Inc., 

, 1223 (11th

Cir. 1993)). If the employer asserts a legitimate reason for the discharge, the

plaintiff may present evidence that the reason is a pretext masking the specific

intent to interfere with ERISA rights. See 

retaliation claim fails under the first element of the

prima facie case. As determined above, Appellant is not a “participant” in Coca-

Cola’s ERISA plan because she is not eligible under the terms of the plan.

Appellant therefore was not entitled to claim ERISA benefits and is not protected

by ERISA’s anti-retaliation provision. In addition, Appellant’s claim fails the third

element. We agree with the district court that the factual deficiencies in

Appellant’s evidence on the ERISA and FLSA retaliation claims are the same.


                                          14
That is, the evidence regarding the Feb. 24 meeting is insufficient to prove that

Appellant ever asserted ERISA claims prior to being terminated, and the evidence

that Coca-Cola’s legitimate reasons for termination were pretext also is inadequate

to defeat summary judgment.

                                III. CONCLUSION

      For the foregoing reasons, we conclude the district court correctly granted

summary judgment to Coca-Cola on Appellant’s claims for benefits under ERISA

and COBRA and for retaliation under the FLSA and ERISA.

      AFFIRMED.




                                         15