Cilecek v. Inova Health System Services

• Decision Date: 02 June 1997
• Docket Number: No. 96-1317,96-1317
• Citation: 115 F.3d 256
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 1764, 70 Empl. Prac. Dec. P 44,736, 65 USLW 2831 James W. CILECEK, M.D., Plaintiff-Appellant, v. INOVA HEALTH SYSTEM SERVICES; Emergency Physicians of Northern Virginia, Limited; Thom A. Mayer, M.D., individually and in his capacities as Chairman of the Department of Emergency Medicine of Fairfax Hospital, Inova Health System Services and as President of Emergency Physicians of Northern Virginia, Limited; Joan Miles, R.N., individually, and in her capacity as Administrator of Access Emergency Care of Reston, Inova Health System Services, Defendants-Appellees, Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 256

115 F.3d 256

73 Fair Empl.Prac.Cas. (BNA) 1764,

70 Empl. Prac. Dec. P 44,736, 65 USLW 2831

James W. CILECEK, M.D., Plaintiff-Appellant, v. INOVA HEALTH SYSTEM SERVICES; Emergency Physicians of

Northern Virginia, Limited; Thom A. Mayer, M.D.,

individually and in his capacities as Chairman of the

Department of Emergency Medicine of Fairfax Hospital, Inova

Health System Services and as President of Emergency

Physicians of Northern Virginia, Limited; Joan Miles, R.N.,

individually, and in her capacity as Administrator of Access

Emergency Care of Reston, Inova Health System Services,

Defendants-Appellees,

Equal Employment Opportunity Commission, Amicus Curiae.

No. 96-1317.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 27, 1997.

Decided June 2, 1997.

ARGUED: Lois G. Williams, Howrey & Simon, Washington, DC, for Appellant. Paul Charles Skelly, Hogan & Hartson, L.L.P., Washington, DC, for Appellees. ON BRIEF: Moira T. Roberts, Howrey & Simon, Washington, DC, for Appellant. Jonathan T. Rees, Hogan & Hartson, L.L.P., Washington, DC; Hogan & Hartson, McLean, VA, for Appellees Emergency Physicians and Mayer; Anthony J. Trenga, Michael L. Zupan, Hazel & Thomas, Alexandria, VA, for Appellees Inova Health System and Miles. C. Gregory Stewart, General Counsel, Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Jennifer S. Goldstein, Equal Employment Opportunity Commission, Washington, DC; Deval L. Patrick, Assistant Attorney General, Isabelle K. Pinzler, Deputy Assistant Attorney General, Dennis J. Dimsey, Eileen Penner, United States Department of Justice, Washington, DC, for Amicus Curiae.

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MOTZ joined. Judge MURNAGHAN wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

We must decide in this case whether Dr. James W. Cilecek, a physician under contract to provide emergency medical services at two hospitals, was an employee covered by Title VII of the Civil Rights Act of 1964 or an independent contractor and therefore not so covered. Based on the undisputed facts about the incidents of the relationship, we conclude as a matter of law that Cilecek was an independent contractor, and therefore we affirm the summary judgment entered by the district court in favor of the defendants.

I

Inova Health System Services, a Virginia corporation, owns and operates several health care facilities in northern Virginia, including Fairfax Hospital and ACCESS of Reston. In March 1989, Inova entered into an exclusive contract with Emergency Physicians of Northern Virginia, Ltd. ("Emergency Physicians"), under which Emergency Physicians agreed to staff Fairfax Hospital and ACCESS of Reston with emergency physicians. At the time, Dr. James W. Cilecek had worked at those facilities as an emergency physician for about five years. After Emergency Physicians obtained the contract with Inova, Cilecek wrote Dr. Thom Mayer, Emergency Physicians' CEO and owner:

As discussed, I will work as an independent contractor covering an average of 120 hours per month.... Compensation will be $80/hour and the group will provide liability insurance with tail coverage. In the event that we decide to change our agreement, I will notify you at least 60 days in advance and would ask that you provide similar notification.

In August 1991, Cilecek reduced his hours worked for Emergency Physicians and began working for Mary Washington Hospital in North Stafford, Virginia, a non-Inova facility. But in December 1992 he returned full time to Emergency Physicians, at which time Emergency Physicians and Cilecek restated a relationship that both believed was an independent contractor relationship. In summarizing the resumed relationship, Cilecek wrote Mayer:

This letter is to confirm our discussion of October 15 in which we agreed that I would resume full-time status with the Fairfax Emergency Department commencing December 1, 1992.

* * * * * *

Total hours will average 130-140 hours/month with no less than 100 hours and with increase to 180 hours during periods of need. Compensation will be, under Independent Contractor status, $90/hour with malpractice being paid by the group.

In July 1994, Cilecek wrote the clerk who scheduled Emergency Physicians' shifts, "I will be reducing my shifts temporarily this fall" to work on a "large" personal project and to work "a few shifts" at another medical facility. When Cilecek received the draft schedule for September and October 1994, he learned that he was being assigned even fewer shifts than he had wished, and he objected. He wrote a letter stating that despite his request for five to six shifts in September and six to eight shifts in October on any of eighteen specified dates, the draft schedule showed him working only five shifts in September and two in October. Emergency Physicians refused to adjust the schedule. Instead, it wrote a letter terminating the relationship between the parties because "it is in the best interest of both parties." While Emergency Physicians terminated the relationship effective November 1, 1994, it offered to pay Cilecek through December on the basis of ten shifts. In response to Emergency Physicians' termination, Cilecek wrote:

At this time, there has been no attempt on your behalf to restore my shifts in the September-October schedule. Further, I understand you wish for me to sign an agreement of termination effective November 1, 1994. Given my recent testimony in the legal action, Lowe vs. INOVA, I conclude that you are taking retaliatory action against me. Such retaliation is unlawful.

I do not agree that it is in the best interest of both parties to terminate our working agreement.

Cilecek was referring in his letter to testimony that he had given in a deposition on August 23, 1994, in support of a former employee's claim against Inova for sexual harassment.

Dr. Cilecek filed this action against both Inova and Emergency Physicians under Title VII of the Civil Rights Act of 1964, alleging that he was terminated in retaliation for giving testimony in a former employee's sexual harassment suit. On the defendants' motion for summary judgment, the district court concluded that Cilecek was not an employee of either Inova or Emergency Physicians, but rather an independent contractor, and that therefore he was not covered by Title VII. The court summarized the incidents of the relationship on which it relied to reach its conclusion as follows:

There is more in this case than how the taxes are treated. This plaintiff asked to be an independent contractor, he contracted with his employer to be an independent contractor. He has testified under oath in another hearing that he was an independent contractor. He worked for others at times and had the opportunity and the latitude to work for others. He was not bound by any noncompetition agreement as other similarly situated employees at the Emergency Physicians. He didn't receive the same benefits. He didn't receive the same tax treatment. His duties and his scheduling were different than regular employees. He wasn't required to be on call. He designated his own shifts. And he was not supervised basically in the providing of care even though he did use their equipment.

I believe simply with these differences in a regular employee, that simply the fact that he was paid by them and used the equipment that they provide in their facility does not make him an employee. And when you add all these up, I find that it is clear that he was an independent contractor and not covered by the federal Act.

The court dismissed pendent state law claims without prejudice to their prosecution in state court. This appeal followed.

II

Title VII of the Civil Rights Act prohibits employers from retaliating against their employees for testifying in support of an employment discrimination claim. See 42 U.S.C. § 2000e-3. The Act defines "employee" as "an individual employed by an employer." 42 U.S.C. § 2000e(f). And "employer" is defined as a "person ... who has fifteen or more employees" during a specified period of time. 42 U.S.C. § 2000e(b). In adopting this circular definition, Congress has left the term "employee" essentially undefined insofar as an employee is to be distinguished from an independent contractor. The parties to this case agree that Title VII does not cover an independent contractor.

It now appears to be settled that when Congress uses the term "employee" in a statute without defining it, the courts will presume that Congress intended to describe "the conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1347-48, 117 L.Ed.2d 581 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-740, 109 S.Ct. 2166, 2172, 104 L.Ed.2d 811 (1989) (addressing rights under the Copyright Act of 1976 to a sculpture "prepared by an employee within the scope of his or her employment")). Following Reid, the Court in Nationwide adopted the "common-law test for determining who qualifies as an 'employee' under ERISA." Id. 503 U.S. at 323, 112 S.Ct. at 1348. And again recently, the Court agreed that "employee" under Title VII is defined by "traditional principles of agency law." Walters v. Metropolitan Educ. Enter. Inc., 519 U.S. 202, ----, 117 S.Ct. 660, 666, 136 L.Ed.2d 644 (1997). Because Congress had overruled the Supreme Court's earlier interpretations of "employee" under both the National Labor Relations Act and the Social Security Act, in each of which the Court had defined employee "in light of the mischief to be corrected and the end to be obtained," see United States v. Silk, 331 U.S. 704, 713, 67 S.Ct. 1463 1468, 91 L.Ed. 1757 (1947), the Court in Reid and Nationwide abandoned that approach, adopting the presumption that "C...