Spackman v. DEPT. OF EMPLOYMENT SERVICES, 90-486.

• Decision Date: 08 May 1991
• Docket Number: No. 90-486.,90-486.
• Citation: 590 A.2d 515
• Parties: Thomas SPACKMAN, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and The Washington Opera, Intervenor.
• Court: D.C. Court of Appeals

590 A.2d 515

Thomas SPACKMAN, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and The Washington Opera, Intervenor.

No. 90-486.

District of Columbia Court of Appeals.

Argued February 27, 1991.

Decided May 8, 1991.

Joshua J. Kaufman, for petitioner.

Michael A. Milwee, for respondent.

Joseph D. Murphy, with whom Robert H. Craft, Jr., and Margaret K. Pfeiffer were on the brief, for intervenor.

Before BELSON and TERRY, Associate Judges, and KERN, Senior Judge.

KERN, Senior Judge:

Petitioner Spackman appeals from a decision of respondent, District of Columbia Department of Employment Services (DOES), concluding that petitioner was not an employee of intervenor, the Washington Opera. Petitioner's petition for review in this court asserts: "The precise issue is whether one hired to perform for the Washington Opera is an employee and the relationship constitutes `employment' as that term is defined by the District of Columbia Unemployment Compensation Act¹ in contrast to the establishment of an independent contractor relationship." We hold that the conclusion of DOES that petitioner was not an employee is supported by substantial evidence and in accordance with the applicable law.

Petitioner performed for some seven weeks the role of Pasha Selim in Mozart's opera, "The Abduction from the Seraglio." The intervenor, the Washington Opera, produced and presented this opera at the Kennedy Center for the Performing Arts. Petitioner contends that intervenor should have deemed him its employee and withheld from the weekly payments of $500 for his performance amounts appropriate to an employer-employee relationship.² Intervenor argues that petitioner was not its employee but rather—like all the other performers in this particular opera it presented —was an independent contractor. The claims deputy of respondent concluded petitioner was not an employee of the intervenor, and the DOES appeals examiner, after holding a hearing at which testimony was presented and exhibits received in evidence, reached the same conclusion. DOES adopted the appeals examiner's decision.

Our scope of review in this appeal is not again to weigh the evidence and determine the facts, nor is it to draw our own conclusions from these findings. Rather, our role is quite circumscribed by statute and precedent: only to determine whether the respondent agency's findings are supported by substantial evidence and whether its conclusions of law follow rationally from its findings. E.g., Ahmed v. District of Columbia Hackers License Appeal Board, 501 A.2d 415, 416 (D.C.1985); Perkins v. District of Columbia Department of Employment Services, 482 A.2d 401, 402 (D.C. 1984).

The appeals examiner, in his decision adopted by DOES, noted that the applicable statute, D.C.Code § 46-101(2)(A)(i)(II) (1990 Repl.), defines "employment" as service, including service in interstate commerce, by "any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee"; and that courts in this jurisdiction in determining whether an employment relationship exists have considered four factors: (1) the selection and engagement of the individual hired, (2) the payment of wages, (3) the power of the one who hires over the other whom he has hired, and (4) whether the service performed by the person hired is a part of the regular business of the one who hired. In so ruling, respondent applied the factors we have specifically recognized are determinative of whether an employment relationship existed under the common law of the District of Columbia. E.g., Giles v. Shell Oil Corp., 487 A.2d 610, 611 (D.C. 1985). Accordingly, respondent applied the applicable law correctly.³

Our review of the record reveals substantial evidence to support respondent's findings upon which it based its conclusion that petitioner was not an employee of intervenor. The findings of the appeals examiner with respect to the engagement of petitioner by intervenor indicated that petitioner was not an employee. The examiner found that Washington Opera hired petitioner pursuant to a contract, for a limited period of time, for a specific operatic role, and did not treat him as its employee, that the contract Washington Opera and petitioner executed under which petitioner performed for seven and one-half weeks did not state he was an employee of Washington Opera, and that petitioner was aware early-on in the performance of his role that withholdings normally associated with an employment were not being made from his weekly $500 pay.⁴

The examiner's findings with respect to the payment petitioner received indicated that petitioner was not an...