*1 Physicians President of V. Limited; Miles, Virginia, Joan Northern grant foregoing reasons we For the individually, capacity R.N., in her as ITAC’s and EMSI’s part deny part of Access Administrator review, deny in part grant petition for Reston, System Health Inova Care cross-petition for enforce part the NLRB’s Defendants-Appellees, Services, ment, case the NLRB remand this order, remedial appropriate entry Equal Employment Opportunity holding that ITAC’s obli our consistent with Commission, Amicus agreement ended gations the 1992-94 Curiae. 6,199S.3 May No. 96-1317. FOR REVIEW GRANTED PETITION Appeals, Court of United States PART, PETI- DENIED IN
IN AND PART Fourth Circuit. GRANTED TION ENFORCEMENT FOR PART, IN AND AND IN PART DENIED Argued Jan. 1997. REMANDED. Decided June 1997. CILECEK, M.D., W. James
Plaintiff-Appellant, SERVICES; HEALTH INOVA SYSTEM of Northern Vir M.D., Limited; Mayer, ginia, Thom A. individually capacities in his as Department Emer
Chairman Hospital, gency Medicine of Fairfax System as Health Services and Inova rights process 3. that its due constitutional issue de novo. See Multi- ITAC also asserts caption Quality violated because the have been Co. Channel TV Cable v. Charlottesville ITAC, ego (4th Cir.1995); as an case describes EMSI alter Corp., Cable 65 F.3d ego conveying thereby prejudgment the alter Presley, United States below, responding argument this issue. In Cir.1995). AU, been Like have unable any legal “did not AU authority that ITAC cite stated any authority supporting legal con find ITAC’s support [its] that inclu- contention allegation ego tention that an of alter status allegation ego alter status in the sion of an caption process. of the case violates due caption due of this case constituted a denial of Furthermore, we are re convinced ITAC process. authori- I have been unable find process company due. ceived all contention and therefore tative basis reject reject company’s Accordingly, we contention NLRB, (J.A. 68.) n. with- it.” set that the decision and order should be NLRB's discussion, adopted out the ALJ’s resolution of pro complaint aside and the dismissed on due this issue. grounds. cess Although is nor- our of NLRB review decisions deferential, ruling mally we review Board's *2 Williams, Howrey
ARGUED: Lois G. & Simon, DC, Washington, Appellant. for Skelly, Hogan Hartson, Paul Charles & L.L.P., DC, Washington, Appellees. Roberts, Howrey ON BRIEF: Moira T. & Simon, DC, Washington, Appellant. Rees, Hartson, Hogan Jonathan T. & L.L.P., DC; Washington, Hogan & Hart- son, McLean, VA, Appellees Mayer; Physicians and Anthony Trenga, J. Thomas, Zupan, Michael L. & Hazel Alex- andria, Appellees Inova Health VA System Stewart, Gregory and Miles. C. Counsel, Gwendolyn Reams, Young General Counsel, Associate General Vincent J. Blackwood, Counsel, Assistant General Jen- Goldstein, Equal Op- nifer S. Employment Commission, portunity DC; Washington, Patrick, Attorney L. Deval Assistant Gener- Pinzler, al, Deputy K. Isabelle Assistant At- General, torney Dimsey, Dennis J. Eileen Penner, Department United States of Jus- tice, DC, Washington, for Amicus Curiae. MURNAGHAN, NIEMEYER,
Before MOTZ, Judges. Circuit by published opinion. Judge
Affirmed opinion, NIEMEYER wrote the joined. Judge Judge MOTZ MURNAGHAN opinion. a dissenting wrote
OPINION
NIEMEYER,
Judge:
Circuit
must decide
this case
Dr.
We
Cilecek, physician
James W.
under contract
two
provide
medical services at
hospitals,
Title
covered
Department commenc-
Fairfax
Rights Act of 1964 or
the Civil
VII of
1,1992.
ing December
and therefore not so
covered.
about the incidents
Based on
undisputed
relationship,
facts
* * * * *
[*]
law
Cilecek was
average
hours will
180-140
as matter
Total
conclude
hours/
*3
contractor,
we
and therefore
100
an
with no less than
hours
month
by the
summary judgment
during
entered
periods
affirm the
to 180 hours
with increase
be,
in
of the defendants.
In-
district court
favor
under
Compensation
of need.
will
status,
dependent
$90/hour
Contractor
being
group.
malpractice
paid
with
I
July
wrote the clerk who
In
Cilecek
Services, Virginia
a
System
Health
Inova
shifts, “I
Emergency Physicians’
scheduled
corporation,
operates
several
owns
my
temporarily this
reducing
shifts
will be
Virginia,
in
health care facilities
northern
“large” personal project
a
fall” to work on
Hospital
including Fairfax
and ACCESS
to work “a few shifts” at another
into
In March
Inova entered
Reston.
facility.
the draft
When Cilecek received
Physi-
Emergency
with
an exclusive contract
1994,he
September
and October
schedule
(“Emergen-
Virginia, Ltd.
of Northern
cians
assigned
being
that
even
learned
he was
cy Physicians”), under which
wished,
and he
fewer shifts than
had
Physicians agreed
Hospital
to staff Fairfax
objected.
stating
He
a
that
wrote
letter
emergency
of Reston with
ACCESS
in
request for
to six shifts
despite his
five
time,
physicians. At the
Dr. James W. Cile-
eight
September and six
shifts October
cek had worked at
those facilities as
dates,
eighteen
specified
on
the draft
years.
five
about
only
him
five shifts
schedule showed
Emergency Physicians obtained the
After
Emergen-
September
and two October.
Inova,
Dr. Thom
contract with
Cilecek wrote
cy Physicians
adjust
refused
schedule.
Emergency Physicians’
Mayer,
CEO and
Instead,
terminating the
it wrote a letter
owner:
parties
because “it
relationship between
parties.”
is in the best
interest of both
discussed,
indepen-
I will work as an
As
Emergency Physicians terminated the
While
covering
average
120
dent
1, 1994,
relationship
effective November
Compensation
per
will
hours
month....
pay
through
on
offered
December
provide
group
and the
will
be $80/hour
In
response
of ten shifts.
Emer-
the basis
coverage.
liability
with
In
insurance
tail
termination,
gency Physicians’
Cilecek wrote:
change
we
our
the event that
decide
notify you
I
at least 60
agreement, will
time,
attempt
no
At this
there has been
you
days in
and would ask that
advance
your
my
behalf to restore
shifts
provide
notification.
similar
Further,
I
September-October schedule.
you
sign
wish for me
understand
August
In
reduced
agreement of termination effective Novem-
began
worked
1,1994.
my
testimony in
Given
recent
ber
Mary Washington Hospital in
working for
INOVA,
action,
legal
Lowe
I con-
vs.
Stafford, Virginia,
facility.
North
non-Inova
you
retaliatory
taking
that
are
action
clude
But in
1992 he returned full time
December
me.
is unlawful.
against
Such retaliation
Emergency Physicians,
at which time
agree
I do not
it is
the best
Emergency Physicians and Cilecek restated
parties
interest of both
to terminate our
that both believed was an inde-
working agreement.
In summar-
pendent contractor
relationship, Cilecek wrote
izing the resumed
referring in
Cilecek was
his letter
testimo-
Mayer:
deposition
ny
given
in a
had
23, 1994,
support
August
former em-
confirm our discussion
This letter is to
for'
agreed
ployee’s
against
I
claim
Inova
sexual
in which
October
resume full-time
with the
harassment.
would
status
against both
“an
employed by
Dr. Cilecek filed this action
ee” as
individual
an employ-
2000e(f).
§
Emergency Physicians
Title
er.”
U.S.C.
“employer”
Inova and
Rights
alleging
“person
is defined as a
...
VII of the
Act
who has fifteen
Civil
employees” during
period
more
a specified
terminated
he was
retaliation
2000e(b).
testimony
§
giving
employee’s
adopting
in a
sex-
time.
U.S.C.
former
definition, Congress
this
ual
suit.
mo-
circular
has left
harassment
On
defendants’
summary
“employee” essentially
term
judgment,
tion for
the district
undefined inso-
distinguished
far as an-
court concluded that
an em-
to be
Physi-
from
ployee
contractor. The
either Inova or
cians,
agree
to this case
but rather an
Title
does
VII
and that
therefore he was not
cover
contractor.
covered
Title VII. The court
inci-
summarized the
It
appears
now
to be settled that
*4
relationship
dents of the
on which it
relied
Congress
“employee”
when
uses the term
in
reach its conclusion as follows:
it,
defining
a statute without
courts
the
will
There is more in this case than how the
presume that Congress
intended
describe
plaintiff
taxes are treated.
asked to
This
“the conventional master-servant
independent
be an
he contract-
by
as understood
agency
common-law
doc
employer
ed with his
to be an
Darden,
trine.” Nationwide Mut.
v.
Ins. Co.
He
contractor.
has testified under oath
318, 322-23, 112
1344, 1347-48,
503 U.S.
S.Ct.
hearing
indepen-
another
that
was an
principles question federal relevant consider the determine doctor, per- contrac factors whether a whether- (2) forming emergency doctors; room medical services at cians with had other employee hospital, proposed or an is the number of hours would work (1) any given control during contractor: of when the doctor month and the allocation of works, works, many shifts, how hours he and the those hours to various and the hours work; uniform; (3) administrative details incident to his that he worked were not (2) work, the source of had only instrumentalities freedom do other (3) work; doctor’s the duration of the rela himself also but health other care facili- (4) tionship parties; between the ties whether unrelated to Physi- Inova or (4) hiring party right cians; assign has the paid only additional Cilecek was for work preclude actually work to the or to doctor performed doctor salary; not uniform (5) professional from at com Except liability insurance, other facilities or for (5) (6) petitors; payment; the method of the Cilecek funded his pension own and other (6) hiring assistants; benefits”; paying “employee doctor’s role in Both Cilecek (7) part regular Physicians the work treated his taxes hiring party business of the if and how is as Cilecek were an independent (8)
customarily discharged; provision Physicians did not with- pension other benefits and bene hold taxes that were incident to an em- fits; ployment the tax treatment of summary, the doctor’s income; independence whether the believe exercised from Emergency they employment have created relation that enabled him to determine his ship hours, income, or an contractor relation and who he worked for. Reid, ship. 751-52, 109 See S.Ct. These are core incidents a work relation- 2178-2179; Mangram, 62-63; ship 108 F.3d at that are inconsistent with sta- (Second) 220(2). Agency § Restatement tus. hand, principles
With these now in indicating While there are factors other- proceed to the relationship wise, they consider between probative are as of the ulti- *6 Emergency Physicians. Cilecek and question of mate control. Cilecek focuses (1) heavily obligation, most his when
III Physicians, Emergency to com- ply hospital regulations with detailed in car- defining The facts the incidents (2) rying his hospitals; out services at Inova relationship the contractual between Cilecek instruments, hospital-supplied his use of and Physicians and are not material hospitals’ ultimate control over the ly in dispute. significance their to While of hours that number he worked. Cilecek an employment relationship or an argues Emergency Physi- also that because independent relationship contractor was cre wage” him paid “hourly cians an and unilat- debated, vigorously ated is resolution of that erally relationship terminated their work and See, question is a e.g., debate law. Mac relationship because his with Co., Mullen v. South Carolina Elect. & Gas one, enduring had been an he was (4th Cir.1963) (whether Physicians’ employee. undisputed “statutory employ facts establish compensa purposes ee” status for of workers It is true that Cilecek was to law). . question tion is hospital regulations abide rules and patients, regulated the treatment of When we consider factors most rele- hospitals at his work in substantial detail. relationship vant to the established between regula- As Cilecek has those summarized Emergency Physicians Cilecek and in this tions: case, we conclude that the district court was
correct in regulations governed that Cilecek an was The rules significantly: patient care, aspect including: taking contractor. Most histories; parties expressly conducting The physical set out from the medical ex- beginning ams, an independent patient to procedures; create tests and other notes; relationship, tor in distinction em- progress issuing pa- from the the manner of ployment relationship Physi- orders; that Emergency prerequisites tient he each month and that surgical of hours procedures; or- number to
post-requisites adjustments his to those hours. initiated own of medications dering and administration instances, varied his hours devices; obtaining at least two consulta- and medical to work at- facilities owned referrals; making order entries tions and Inova. medical records. however, regulations, relate
All of these argued additional factors providing professional standard was pay do his cause. Cilecek’s not advance for which both Emer- patients health care hourly rate negotiated at hospitals had Physicians and the Inova gency pay time his to the he worked. While relate patients. responsibility to their professional paid wages,” “hourly employees are often certainly profession- retained While Cilecek likéwise often independent contractors are professional performing independence al hour, paid by e.g., plumbers. In this services, re- professional also shared ease, hourly payment rate enabled Cilecek’s hospitals with the sponsibility cooperate fluctuating compensation for of fair care, keep patient maintain standards of that fact is not indicative of whether Cilecek records, appropriate and to follow estab- employ- contractor or was an This shared control ex- procedures. lished Also, party right ee. had a that either employee doc- ists both for doctors relationship terminate is indicative. merely enjoying practice privileges at a tors Emergency Physicians, rather The fact facility. not insist on hospitals If the did Cilecek, than in fact terminated relation- profession- performance such details ship does not indicate whether Cilecek facilities, they al at their services doctors contractor. or recognized exposing themselves to would be finally, relationship an en- that the professional liability. Because of over- in- during suggest regularity one profession, arching demands of the medical But, employment relationship. in an herent professional control between tension relationship, at times in this various hospitals for medical services doctors and substantially own curtailed initiative not, believe, hospitals at is rendered at in order work Inova facilities doctor of whether the reliable indicator hospitals, spending year over a other Mary arrangement case such an hospital. Washington Hospital. His with Emergency Physicians not restrict his did Similarly, that used instruments of adjustments ability to these nor did make sup- room were hospital emergency *7 prohibit him from at unrelated facili- by hospital is also inherent in the plied the ties. provision emergency of medical services employ- a of
likewise is not reliable indicator important in this It is to our conclusion specializing ee Whether a doctor status. carefully designed parties case that the their emergency an medicine is greater give freedom Cilecek hospital simply privileges hospi- at the or has by enjoyed be than otherwise salaried tal, must, ease, use almost emer- they hospital, of to that employees a end gency provided by hospital the room facilities mutually agreed they that wanted to estab- in order to render his services. relationship. lish an contractor 220(2)(i) (Second) § finally, Agency See while Restatement (“In ultimately acting an- did of whether one determine number work, a hours other is servant or that Cilecek would determi- tor,” only parties fact not proposed nation made after of “whether or was Cilecek they creating willing the relation of mas- the number of hours he work. believe are considered); Robb, Moreover, 80 of announced ter and servant” is the number (“we represented ignore a at 893 can not the clear hospital in each case F.3d ... hospital expression to establish an inde- coordination with the needs of the intent pendent relationship”). More- room. staffing We note not, choice, over, indepen- intent the mutual to create Cilecek did work same
263 conditions, relationship was except dent contractor confirmed the same terms and parties way they paycheck uniformly provided by in the and insurance were EPNV, way in the instead Inova. treated benefits and taxes and they represented relationship to third their August Dr. went to Cilecek parties. group for another medical located in North Stafford, Virginia. In the fall how- factors, Considering all the relevant ever, money Dr. EPNV offered Cilecek more conclude that Cilecek to work Hospital full-time at the Fairfax that, therefore, contractor and he is enti- Dr. accepted Mayer’s ACCESS. Dr. Emergency Physicians or tled to sue either agreement offer a letter Dr. which Rights Inova under Title VII of the Act Civil requested that he be deemed in- on their termination of the 1964 based contractor, dependent Mayer agreed. and Dr. agreement Such cannot AFFIRMED. overcome the actual facts. Under agreement, actually Dr. Cilecek worked an MURNAGHAN, Judge, dissenting: Circuit average per of 130-140 hours month. EPNV It is a difficult line to draw between Dr. paid sup- and also $90.00/hour disputed are a set of facts facts which plied his malpractice insurance. Here, outlining crystal what clear. granting summary judgment hospital’s in the II. thereby foreclosing any favor and resolution The common law standard on the focuses the factfinder the issue: degree employer’s control over the majority has Community individual. Haavistola v. Fire up that difficult gathered crossed line and Sun, Inc., Rising Co. F.3d 219-220 disputed question. itself resolution fact Cir.1993). (4th The “economic realities” test evidence, majority relies which is examines the extent to individuals strong, hospital’s no doubt favor but reality “who as a matter of economic are gives weight favoring no to facts Cilecek dependent they upon the business to which
which are of sufficient substance to make the Birmingham, render service.” Bartels disputed issue a one. 126, 130, 1547, 1549, S.Ct. (1947).
L.Ed. 1947 I. hybrid ap- The Fourth Circuit follows the proach, which combines elements both During his association with the Inova facil- common law and “economic realities” tests. ities, Dr. Cilecek considered himself house Haavistola, 220; 6 F.3d at See Garrett staff, merely doctor with Mills, Inc., Phillips privileges two facilities. The Fairfax Cir.1983). hybrid approach, Under Hospital Bylaws Medical and Rules and Staff inquiry following court’s must focus on the Regulations require per- acts “[t]he factors: Physician formed the House shall be *8 (1) supervision occupation,
the direction and the under the kind of with reference department usually the chairman of the clinical to to whether the work is done under assigned.” supervisor which the individual has been Dr. the of a or is direction done (2) department specialist supervision; Cilecek’s chairman was Dr. without the Mayer. occupation; required particular Thom Defendant Joan Miles served skill (3) Mayer “employer” as administrator of ACCESS. Both whether the or the individu- power equipment and Miles had the to enforce Dr. al the used and the furnishes (4) work; compliance by initiating place length Cilecek’s corrective the of time dur- him, (5) worked; against including ing action additional the individual su- has suspension, pervision, payment, and termination. Af- the time method whether (6) entry Emergency Physicians job; ter the or the manner which i.e., (EPNV), terminated; Virginia Northern Dr. Cilecek con- is hospitals parties, tinued work at the Inova one or both with or without notice (7) hospital. at the as the other doctors annual leave same explanation; whether and (8) required to afforded; an Dr. that he was the work is Cilecek states whether schedule, requested the business the “em- and his sched- integral part of submit (9) worker accumu- or approved ule either be as submitted ployer”; whether would (10) benefits; altered, whether the his own thus he not free to set lates retirement was taxes; security Furthermore, and “employer” pays social Dr. stated in Cilecek hours. (11) parties. fewer intention his that if he wanted to work affidavit approval of in a month he obtained the Garrett, Haavistola, (citing at 222 n. 4 superior, Mayer. his Dr. 982). F.2d at points Dr. majority those factors A issue, Dr. respect With the same duties argues employee. as Dr. Cilecek Cilecik contends that the record shows Cilecek schedule, setting of his supervision, that his re- required to Dr. was submit Cilecek differed from other doc- and how his duties work, quested as other schedule for same genuine dispute. Dr. Cile- tors were all physicians, Bylaws re- Inova’s (the cek, Equal Employment and amicus physician” perform quired “house Commission) point out that Dr. Opportunities duties, and the same rules same observe con- presented evidence that was Cilecek supervi- procedures, operate under the same physician” under Inova’s “house sidered standards, sion, performance the same meet Bylaws that house Bylaws. Those stated proce- disciplinary same answer physicians work under the “direction and Finally, provided Inova and EPNV dure. supervision” of either the director of their workplace equipment. physicians or staff department; clinical Here, disputes over the issues of abound prong, done. either for whom work is Under supervision by Mayer Dr. Cilecek’s May- was person Dr. states Dr. Cilecek schedule manner which Dr. Cilecek’s work er, Depart- who was both Director set, example, whether Dr. was Cilecek for Fairfax ment of Medicine schedule, provide himself his own could Hospital and the staff whom Mayer alter could the schedule. Dr. worked. “independent The choice term Moreover, presented Dr. Cilecek evidence himself, tor” while the describe that he was to work under attention, by no pay factfinder Mayer, May- supervision of Dr. Dr. controlling. Mutual Ins. means Nationwide supervision pervasive. of him In his er’s Darden, Co. v. 112 S.Ct. opposition to his Inova’s affidavit attached (1992). L.Ed.2d motion, summary judgment Dr. con- case, In the instant district court way that Inova Dr. Cile- tends controlled granted summary judgment in favor of work, including performed his how he cek be- pre-discovery, and Inova that is histories, EPNV physical ex- took medical conducted disputed ex- fore these issues could even be ams, procedures, pa- tests made and other plored. majority opinion usurps the role notes, patient progress tient issued disputed resolves factu- the factfinder and orders, surgical procedures, ordered handled al favor. It issues EPNV Inova’s medications and medical and administered appears to me relevant facts were in devices, referrals, obtained consultations and judgment inappro- dispute, making summary and made medical records. Dr. entries priate I dis- Consequently, and ill-advised. Miles, Inova’s admin- Cilecek also states sent. istrator, performed controlled how
work, patient physi- such as when conduct *9 examinations, prescrip- handle
cal how to pads. tion addition, argues Dr. Cilecek set presented evidence Inova EPNV hours, changed unilaterally as well as showing that his duties were the evidence