F I L E D
United States Court of Appeals
Tenth Circuit
MAR 13 2002
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT
NATALIA SIZOVA,
Plaintiff - Appellant,
v.
No. 00-1494
NATIONAL INSTITUTE OF
STANDARDS & TECHNOLOGY and
REGENTS OF THE UNIVERSITY OF
COLORADO,
Defendants - Appellees,
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-D-1964)
Mark E. Rau, The Frickey Law Firm, Lakewood, Colorado (Cecilia M. Serna,
P.C., Lakewood, Colorado, on the opening brief), for Plaintiff-Appellant.
David P. Temple, Office of University Counsel, Denver, Colorado, for The
Regents of the University of Colorado, Defendant-Appellee.
Nina Y. Wang, Assistant United States Attorney (Richard T. Spriggs, United
States Attorney, and Kathleen L. Torres, Asst. U.S. Attorney, with her on the
brief), Denver, Colorado, for National Institute of Standards and Technology,
Defendant-Appellee.
Before SEYMOUR, Circuit Judge, McKAY, Senior Circuit Judge, and
MURPHY, Circuit Judge.
SEYMOUR, Circuit Judge.
Natalia Sizova brought this action under 42 U.S.C. §§ 2000e et seq. (Title
VII) against the National Institute of Standards and Technology (NIST), a federal
agency, and the University of Colorado. Ms. Sizova had received a fellowship
administered by defendants and alleged that she was the victim of gender and
pregnancy discrimination when the fellowship was terminated. The district court
granted NIST’s motion to dismiss for lack of subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1), holding that Ms. Sizova had failed to exhaust her
administrative remedies. 1 The court granted the University’s motion for summary
judgment, concluding as a matter of law that the University was not Ms. Sizova’s
1
The district court also granted NIST’s motion to dismiss with prejudice on
the ground that it was an improperly named defendant. Under 42 U.S.C § 2000e-
16(c), a plaintiff in an action against a federal agency is required to name as
defendant the head of the agency, in this case the Secretary of Commerce. On
appeal, NIST wisely concedes that dismissal with prejudice on this ground was
not proper. See Bayer v. U.S. Dep’t of the Treasury, 956 F.2d 330, 334-35 (D.C.
Cir. 1992) (rejecting similar argument and pointing to Fed. R. Civ .P. 15(c), under
which pleading amendment that changes party against whom action is brought
relates back to date of original pleading).
The court also granted NIST’s motion to dismiss Ms. Sizova’s estoppel and
contract claims, finding that they merely restated her Title VII claims. Ms.
Sizova does not appeal this ruling.
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employer for purposes of liability under Title VII. Ms. Sizova appeals. We
affirm in part, reverse in part, and remand for further proceedings.
I
NIST is a bureau of the United States Department of Commerce whose
purpose is to “enhance the competitiveness of American industry while
maintaining its traditional function as lead national laboratory for providing the
measurements, calibrations, and quality assurance techniques which underpin
United States commerce, technological progress, improved product reliability and
manufacturing processes, and public safety.” 15 U.S.C. § 271(b)(1). NIST and
the University were parties to an agreement establishing the Professional
Research Experience Program (PREP), which awarded research fellowships to
graduate and postgraduate students at the University. According to the
agreement, the PREP fellows were employees of the University. NIST provided
the funding to the University, which in turn paid the PREP fellows and provided
their worker’s compensation insurance. However, Ms. Sizova’s work while a
PREP fellow was performed at the NIST facility and her work was supervised by
NIST employees.
Ms. Sizova is a native of Russia and received her doctoral degree in
mechanical engineering from the Academy of Press in Moscow. She worked as a
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guest researcher for NIST in 1995 and was awarded a PREP fellowship in August
1996. Ms. Sizova alleged that she was told her fellowship would last for three
years in the form of three one-year contracts. At the time she was awarded the
fellowship, she was pregnant with her second child and informed defendants of
that fact. Ms. Sizova began working at NIST under her fellowship in September,
1996, gave birth to her child in November, and returned to work two weeks later.
On or about December 2, 1996, she was told by Dr. Christopher Fortunko of
NIST, one of the scientists with whom she worked, that her fellowship would be
terminated at the end of the month due to a lack of funds. Two days later she was
allegedly told by the chief of her NIST division, Dr. Harry McHenry, that she was
being terminated because he thought she would “not be productive having a
baby.” App. vol. I at 86. Although Ms. Sizova was only paid by the University
for her work at NIST until December 31, 1996, she continued to work on an
unpaid basis for a number of weeks thereafter.
Ms. Sizova’s efforts to exhaust her administrative remedies are the subject
of some dispute between the parties. The regulations governing complaints of
employment discrimination against federal agencies require that prior to filing a
formal complaint, an aggrieved person must file an informal complaint with the
EEO counselor of the employer agency within forty-five days of the alleged act of
discrimination or of the effective date of the challenged personnel action. See 29
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C.F.R. § 1614.105(a)(1) (2001). Ms. Sizova sent a letter to Dr. McHenry dated
December 9, 1996, expressing her dismay over their previous conversation and his
belief that her productivity would be affected by her motherhood. App. vol. I at
86. The record also contains an affidavit by Ms. Sizova in which she recounted
her attempt to file an informal complaint. Id. at 89-90. She stated that on an
unspecified date after her employment was terminated she contacted Robin Wolf,
an EEO specialist with the NIST office, informing her that she wanted to file an
informal complaint. Ms. Wolf said she would get back to Ms. Sizova. After Ms.
Wolf spoke with her supervisor, she allegedly told Ms. Sizova she could not file
an informal EEO complaint with NIST because she was a post-doctoral fellow.
At a subsequent evidentiary hearing, although Ms. Wolf denied refusing outright
to accept the complaint, she testified she told Ms. Sizova the forty-five day period
for filing an informal complaint with NIST had passed and directed Ms. Sizova to
pursue her administrative remedies as a University employee against the
University. It is undisputed that Ms. Sizova filed virtually identical
administrative charges of discrimination with the EEOC against both NIST and
the University on May 23, 1997. The charge against NIST was dismissed on June
11, 1997, by the EEOC on the ground that it was without jurisdiction over a claim
against a federal agency.
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II
NIST moved for dismissal under Fed. R. Civ. P. 12(b)(1), alleging that Ms.
Sizova failed to exhaust her administrative remedies and that the court therefore
lacked subject matter jurisdiction over the Title VII claim against NIST. The
district court held a hearing on the matter and granted NIST’s motion. In so
doing, the court found that Ms. Sizova was required to contact an EEO counselor
within forty-five days of February 10, 1997, or by March 27, 1997. The court
found that Ms. Sizova had been notified of the forty-five day limit by posters
prominently displayed in her place of employment at NIST and that she had failed
to satisfy any of the grounds provided by the applicable regulation for extending
this time limit. On appeal, Ms. Sizova challenges the procedure used by the
district court, and the court’s conclusion that the posters gave her notice under the
circumstances.
We turn first to the procedure employed by the district court. Ms. Sizova
makes several challenges to the manner in which the district court dealt with
NIST’s motion to dismiss. She contends the court erred in failing to properly
convert the motion to one for summary judgment for two reasons: the
jurisdictional question, if any, was intertwined with the merits of her claim; and
the exhaustion issue did not present a question of subject matter jurisdiction. She
also maintains the court erred in ruling on the motion without giving notice that
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an evidentiary hearing would be held and without allowing discovery on the
matter. We address these contentions in order.
When, as here, a party’s Rule 12(b)(1) motion challenges the facts upon
which subject matter jurisdiction depends, “a district court may not presume the
truthfulness of the complaint’s factual allegations. A court has wide discretion to
allow affidavits, other documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1).” Holt v. United States, 46 F.3d
1000, 1003 (10th Cir. 1995) (citations omitted). Reliance on evidence outside the
pleadings in addressing such a motion does not, as a general rule, convert the
motion to one for summary judgment under Fed. R. Civ. P. 56. Id. We have
recognized an exception to this general rule, where “the jurisdictional question is
intertwined with the merits of the case.” Wheeler v. Hurdman, 825 F.2d 257, 259
(10th Cir. 1987); see also Pringle v. United States, 208 F.3d 1220, 1223 (10th
Cir. 2000); United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d
1514, 1518 (10th Cir. 1996). We have stated that subject matter jurisdiction and
the merits are considered to be intertwined “[w]hen subject matter jurisdiction is
dependent upon the same statute which provides the substantive claim in the
case.” Wheeler, 825 F.2d at 259; see also Pringle, 208 F.3d at 1223.
Ms. Sizova argues that subject matter jurisdiction and the merits are
intertwined in this case and that she should have been given the procedural
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protections of Rule 56 before the district court converted the motion to one for
summary judgment. She bases her argument on the fact that NIST moved for
dismissal under Title VII, the same statute under which she asserts her cause of
action. “Under Wheeler, however, the focus of the inquiry is not merely on
whether the merits and the jurisdictional issue arise under the same statute.
Rather, the underlying issue is whether resolution of the jurisdictional question
requires resolution of an aspect of the substantive claim.” Pringle, 208 F.3d at
1223. Here, the jurisdictional issue is whether Ms. Sizova has exhausted her
administrative remedies, a matter that is simply not an aspect of her substantive
claim of discrimination. 2
Nonetheless, the fact that NIST’s alleged lack of subject matter jurisdiction
is not intertwined with the merits of Ms. Sizova’s claim does not resolve her
alternative argument that the exhaustion issue in this case simply does not present
a question of subject matter jurisdiction at all. This is not an uncomplicated
matter. We have held that the exhaustion of administrative remedies is a
2
We have held, for example, that substantive claims and jurisdictional
issues are intertwined in cases addressing whether a plaintiff was an employee
under Title VII, see Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987),
whether the information at issue in a qui tam case was publicly disclosed, see
United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518
(10th Cir. 1996), and whether the Feres doctrine applies in a suit under the
Federal Tort Claims Act, see Pringle v. United States, 208 F.3d 1220, 1222-23
(10th Cir. 2000).
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jurisdictional prerequisite to suit under Title VII. See, e.g., Woodman v. Runyon,
132 F.3d 1330, 1341 (10th Cir. 1997); Jones v. Runyon, 91 F.3d 1398, 1399 (10th
Cir. 1996). However, we were careful to distinguish in Jones between a failure to
timely file an administrative charge, which is not jurisdictional, and a failure to
file an administrative charge at all, which is a jurisdictional bar. See Jones, 91
F.3d at 1399 n.1 (citing Zipes v. TWA, Inc., 455 U.S. 385 (1982) (timely filing
before EEOC not jurisdictionally required to sue in district court)). 3
As set out above, the regulations governing discrimination complaints
against federal agencies require an aggrieved person to consult with an EEO
counselor within forty-five days of the alleged discrimination. The regulations
also provide that this forty-five day limit is to be extended under certain
circumstances.
The agency or the Commission shall extend the 45-day time limit in
paragraph (a)(1) of this section when the individual shows that he or
she was not notified of the time limits and was not otherwise aware
of them, that he or she did not know and reasonably should not have
been[sic] known that the discriminatory matter or personnel action
occurred, that despite due diligence he or she was prevented by
circumstances beyond his or her control from contacting the
counselor within the time limits, or for other reasons considered
sufficient by the agency or the Commission.
3
We noted in Jones v. Runyon that several circuits have relied on Zipes to
hold that exhaustion of administrative remedies under Title VII is not
jurisdictional at all, 91 F.3d 1398, 1399 n.1 (10th Cir. 1996), but that our circuit
holds to the contrary, id.
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29 C.F.R. § 1614.105(a)(2) (2001) (emphasis added). 4 The regulation thus
provides that if the aggrieved person meets the circumstances set out therein,
either the agency or the Commission must extend the time limit, and vests both
the agency and the Commission with discretion to extend the limit for reasons
other than those contained in the regulation itself. In keeping with our holding in
Jones, the regulation clearly indicates that compliance with the forty-five day
time limit is not a matter of jurisdiction, but rather may be tolled in the
appropriate circumstances.
The meager record before us indicates that Ms. Sizova did contact a NIST
EEO specialist, albeit not within forty-five days of the alleged discrimination.
The outcome of this contact is the subject of a factual dispute. Ms. Sizova
asserted in her affidavit that Ms. Wolf refused to accept her informal complaint
because she was a post-doctoral fellow with the University. Ms. Wolf testified
that while she did not refuse to take Ms. Sizova’s complaint, she told her the
forty-five day limit for doing so had passed and directed her to pursue her claim
with the University. In any event, Ms. Wolf admittedly did not inform Ms Sizova
that under section 1614.105(a)(2) either the agency or the Commission could
extend the filing time, nor did she accept Ms. Sizova’s untimely complaint so that
4
This section has not been revised since 1997, the year in which Ms.
Sizova was required to exhaust her administrative remedies.
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those entities would have an opportunity to assess whether an extension would be
appropriate. 5 In the end, Ms. Sizova’s EEOC complaint against NIST was
dismissed because the EEOC has no jurisdiction over initial complaints against
federal agencies, which must be filed with the agencies themselves.
In the unusual posture of this case, even if we assume for purposes of this
appeal that the matter is one of subject matter jurisdiction to which the Rule
12(b)(1) procedures apply, as opposed to a non-jurisdictional issue over whether
Ms. Sizova’s untimely effort to file a complaint with NIST should have been
handled differently, we agree with Ms. Sizova that the district court improperly
decided the question without allowing limited discovery.
“When a defendant moves to dismiss for lack of jurisdiction, either party
should be allowed discovery on the factual issues raised by that motion.” Budde
v. Ling-Temco-Vought, Inc., 511 F2d. 1033, 1035 (10th Cir. 1975). Although a
district court has discretion in the manner by which it resolves an issue of subject
matter jurisdiction under Rule 12(b)(1), see Holt, 46 F.3d at 1003, a refusal to
grant discovery constitutes an abuse of discretion if the denial results in prejudice
5
We point out that an EEO counselor’s refusal to accept a charge because
it is untimely precludes the agency and the Commission from ever being in a
position to assess whether an aggrieved person is entitled to an extension, thus
rendering the protection provided by section 1614.105(a)(2) illusory. Moreover,
the counselor is required to inform the aggrieved person of her rights and
responsibilities, see id. (b)(1), which presumably would include advising her that
she could seek an extension of the 45-day filing requirement.
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to a litigant, see First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172,
176-77 (2d Cir. 1998); Filus v. Lot Polish Airlines, 907 F.2d 1328, 1332 (2d Cir.
1990); Majd-Pour v. Georgiana Cmty. Hosp., Inc, 724 F.2d 901, 903 (11th Cir.
1984); Canavan v. Beneficial Fin. Corp., 553 F.2d 860, 865 (3d Cir. 1977).
Prejudice is present where “pertinent facts bearing on the question of jurisdiction
are controverted . . . or where a more satisfactory showing of the facts is
necessary.” Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430
n.24 (9th Cir. 1977) (quotation and citation omitted).
The district court held a hearing on the motion to dismiss at which the court
considered some evidentiary material and asked sua sponte for limited testimony
from Ms. Sizova and Robin Wolf, the NIST EEO specialist, who was there as a
representative of the government. Neither party had requested an evidentiary
hearing and the court gave no prior notice that the hearing would be an
evidentiary one. Moreover, no discovery had occurred at that point. Ms. Sizova
contended at the hearing that NIST had never given her notice of her rights or
told her that she was a NIST employee. App. vol. I at 171, 176, 189. She also
stated that she repeatedly requested written notice of the termination of her
fellowship from both NIST and the University, and did not receive it until May 6,
1997. Ms. Wolf testified that posters explaining the need to contact an EEO
counselor within forty-five days of the alleged discrimination were posted at Ms.
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Sizova’s place of work. Ms. Sizova and Ms. Wolf presented differing versions of
the conversations they had when Ms. Sizova attempted to begin the administrative
process by filing an untimely informal complaint.
The district court decided the matter by concluding that Ms. Sizova was
required to contact a NIST EEO counselor within forty-five days of February 10,
1997, and that under section 1614.105(a)(1) Ms. Sizova was entitled to an
extension of this period only if she showed she was not given notice of the time
limit and was not otherwise aware of it. The court granted dismissal upon
concluding that the NIST posters provided the requisite notice. The posters
which the district court held dispositive stated in large block letters: “IF YOU
FEEL YOU HAVE BEEN DISCRIMINATED AGAINST ON THE JOB,
CONTACT A NIST EEO COUNSELOR.” App. vol. I at 241 (emphasis added).
The poster stated in smaller print: “IF YOU FEEL YOU have been discriminated
against because of age, color, disability (physical or mental), national origin, race,
religion, sex (including sexual harassment), and/or reprisal; or need additional
information regarding discrimination issues, contact an EEO counselor within 45
days of the alleged act of discrimination.” Id.
For several reasons, we disagree with the district court that these posters
resolve the exhaustion issue. While the posters direct a NIST employee to contact
an EEO counselor within forty-five days, the posters do not state that the failure
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to do so will result in the loss of a claimant’s ability to pursue relief. Moreover,
the posters are directed to persons “on the job;” they do not mention holders of
fellowships. Ms. Sizova asserts, with some evidentiary support, that she believed
herself to be an employee of the University. 6 Accordingly, it cannot be held as a
matter of law that posters directed to NIST employees gave Ms. Sizova, a PREP
fellow, the requisite notice. See Johnson v. Runyon, 47 F.3d 911, 917-919 (7th
Cir. 1995) (mere posting of notices not determinative; issue is whether poster
reasonably geared to give particular claimant notice of time requirements).
“[T]he [45] day statute of limitations is not reasonable if agencies and courts do
not liberally construe the [(a)(2)] exceptions.” Id. at 917 (alterations in original)
(citation and quotation omitted); see also Pauling v. Sec’y of the Dep’t of the
Interior, 160 F.3d 133, 137 (2d Cir. 1998).
We are also troubled by the factual dispute regarding the circumstances of
Ms. Sizova’s untimely attempt to file an informal complaint with Ms. Wolf. Ms.
Sizova has raised factual issues concerning whether Ms. Wolf complied with her
obligation as an EEO counselor to provide Ms. Sizova with information on her
ability to pursue her discrimination claim, particularly given the fact that Ms.
6
As we have mentioned, PREP fellows are declared by the PREP
agreement to be University employees and their salary is paid to them by the
University. Moreover, Ms. Wolf, the NIST EEO counselor, also believed Ms.
Sizova was a University employee because she was a PREP fellow.
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Wolf did not accept the complaint, even though untimely, and thereby allow either
the agency or the Commission to consider tolling the time limit as provided in
section 1614.105(a)(1). In this regard, EEO counselors are required to advise
individuals in writing of their rights and responsibilities, see 29 C.F.R. §
1614.105(b)(1), and, significantly, must not attempt in any way to restrain an
aggrieved party from filing a complaint, id. § 1614.105(g).
In addition, in objecting to the lack of discovery, Ms. Sizova’s counsel
pointed out the relevancy of evidence concerning the way the NIST EEO
counselors treated PREP fellows and of any notes Ms. Wolf may have taken of the
conversations she had with Ms. Sizova. In light of the factual disputes, further
factual development might provide Ms. Sizova with additional grounds for
arguing that the forty-five day limit should have been tolled in her case.
In sum, given the contested facts relevant to the exhaustion issue and the
need for further factual development of those issues, we are persuaded the
question was decided prematurely. Accordingly, we reverse the judgment
granting NIST’s motion to dismiss and remand for further proceedings in light of
this opinion.
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III
The district court granted the University’s motion for summary judgment,
concluding that Ms. Sizova was employed solely by NIST and rejecting her
arguments that she was either a University employee or jointly employed by both
NIST and the University. On appeal, Ms. Sizova contends that NIST and the
University conduct joint research from which both entities benefit, and that due to
this collaborative environment both entities cooperate in controlling the research
they perform together. In support of her argument, Ms. Sizova points to evidence
that she co-authored an article with both NIST employees and a professor from
the University, as well as evidence of other collaborative research efforts between
NIST and the University.
“We review the grant of summary judgment de novo, applying the same
standard as did the district court.” Goodwin v. General Motors Corp., 275 F.3d
1005, 1007 (10th Cir. 2002). Summary judgment is appropriate only “‘if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.’” Id. (quoting Fed. R. Civ. P. 56(c)). The movant bears the burden of
establishing the lack of disputed material facts, and we view the record and the
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reasonable inferences to be drawn from it in the light most favorable to the
nonmoving party. Id.
The district court here properly applied the hybrid test in determining
whether the University was Ms. Sizova’s employer for purposes of Title VII. See
Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1028 (10th Cir. 1996).
Under the hybrid test, the main focus of the court’s inquiry is the
employer’s right to control the “means and manner” of the worker’s
performance. However, the hybrid test also looks at other factors,
including: (1) the kind of occupation at issue, with reference to
whether the work usually is done under the direction of a supervisor
or is done by a specialist without supervision; (2) the skill required
in the particular occupation; (3) whether the employer or the
employee furnishes the equipment used and the place of work; (4) the
length of time the individual has worked; (5) the method of payment,
whether by time or by job; (6) the manner in which the work
relationship is terminated; (7) whether annual leave is afforded; (8)
whether the work is an integral part of the business of the employer;
(9) whether the worker accumulates retirement benefits; (10) whether
the employer pays social security taxes; and (11) the intention of the
parties. No single factor is conclusive. Rather, the courts are to look
at the totality of the circumstances surrounding the working
relationship between the parties.
Id. (quoting Oestmen v. Nat’l Farmers Union Ins. Co., 958 F.2d 303, 305 (10th
Cir. 1992)). Although the factors in the hybrid test are typically applied to
determine whether the plaintiff is an independent contractor or an employee, see
id. at 1028 n.1, in this case as in Lambertsen, we apply the test “to determine
which of two entities was plaintiff’s employer,” id.; see also Bristol v. Bd. of
County Comm’rs, F.3d , No. 00-1053 at 31-32 (10th Cir. filed Feb. 26,
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2002) (applying hybrid test to determination of which of two entities was
employer).
We begin by reviewing the evidence relevant to the central focus of the
hybrid test: control of the means and manner by which Ms. Sizova conducted her
work under the fellowship. Ms. Sizova testified by deposition that her work was
supervised by two NIST employees, Dr. Fortunko and Dr. Ledbetter, see app. vol.
II at 292, and by no one else, id. at 293. She stated that those supervisors, along
with her NIST coworkers, communicated to her what she should do. Id. at 294-
95. Dr. Ledbetter stated by affidavit:
4. Ms. Sizova was supervised by NIST employees during the
fellowship. No one from the University . . . had any role in her
supervision while working at NIST laboratories.
5. NIST supervisors made all decisions regarding the nature and
scope of the job duties to be performed by Ms. Sizova while she
worked at NIST during the PREP fellowship. Stated differently,
NIST decided what job duties Ms. Sizova would do and how she
would perform her job duties.
6. NIST employees directed all aspects of Ms. Sizova’s day-to-day
activities while she worked in the NIST Laboratories during the
PREP fellowship.
Id. at 288-89. 7
7
Ms. Sizova contends that notwithstanding the above evidence, a fact issue
exists with respect to the control of her work, pointing to evidence that she
conferred with and co-authored a paper with Professor Martin Dunn of the
University. Although Ms. Sizova stated in her deposition that she had worked
with Professor Dunn and wrote a paper with him, she could not remember whether
this had occurred during her PREP fellowship or at an earlier date. Professor
(continued...)
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In addition to this evidence that NIST controlled and supervised Ms.
Sizova’s work during her fellowship, other undisputed evidence relevant to the
hybrid test demonstrates that NIST selected the PREP fellows from among the
candidates recommended by the University, and that NIST alone had the authority
to terminate a fellowship. Ms. Sizova argues that these factors are nonetheless
not controlling, pointing out that under the PREP agreement the University hired
PREP fellows as University employees, and paid their salary and workers’
compensation insurance. However, we have held under virtually identical
circumstances that such evidence is not dispositive when balanced against the
indicia of supervision and control present here. See Atchley v. Nordam Group,
Inc., 180 F.3d 1143, 1153 (10th Cir. 1999).
Ms. Sizova also contends she was at least jointly employed by NIST and the
University, pointing out that the award of PREP fellowships was a collaborative
7
(...continued)
Dunn stated by affidavit that he had never worked with Ms. Sizova during her
PREP fellowship period, and did not supervise, control or direct any of her work
during that time. App. vol. II at 443. In addition, as set out above, Dr. Ledbetter
also stated by affidavit that no one from the University had any role in
supervising Ms. Sizova during her PREP fellowship. Even if a factual dispute
were to exist regarding Professor Dunne’s supervision during Ms. Sizova’s
fellowship of the paper they wrote, her work with Professor Dunn would have
been at most an isolated incident of little significance in view of the undisputed
evidence demonstrating that her work was otherwise completely supervised and
controlled by NIST.
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effort by both entities and that the research conducted by PREP fellows benefited
both.
Title VII case law recognizes that two separate entities may be a
worker’s employer if they share or codetermine matters governing the
essential terms and conditions of the worker’s employment. When a
worker is formally employed by one organization, but important
aspects of his work are subject to control by another organization,
both organizations are employers of the worker. An independent
entity with sufficient control over the terms and conditions of the
employment of a worker formally employed by another is a joint
employer within the scope of Title VII.
Zinn v. McKune, 143 F.3d 1353, 1361 (10th Cir. 1998) (Briscoe, J., concurring)
(citing Graves v. Lowery, 117 F.3d 723, 727 (3d Cir. 1997); Virgo v. Riviera
Beach Assocs., 30 F.3d 1350, 1360 (11th Cir. 1994)). Thus two entities may both
be a worker’s employer if “they share or co-determine those matters governing the
essential terms and conditions of employment.” Virgo, 30 F.3d at 1360 (quotation
and citation omitted). In this case, the undisputed evidence indicates that NIST
alone selected those applicants to be awarded PREP fellows, only NIST had the
authority to terminate a PREP fellowship, and only NIST supervised and
controlled Ms. Sizova’s work. Contrary to Ms. Sizova’s argument, the fact that
the fellowship program was a collaborative effort benefiting both NIST and the
University does not mandate the inference that both entities therefore controlled
her work given the undisputed evidence the NIST had sole control over the
essential terms and conditions of her employment. In sum, we agree with the
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district court that the University was not Ms. Sizova’s employer for purposes of
Title VII liability, and the district court therefore properly granted summary
judgment for the University.
The judgment of the district court is AFFIRMED in part, REVERSED in
part, and REMANDED for further proceedings in light of this opinion.
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