APPELLANTS,
v.
DONNA E. SHALALA, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, AGENCY.

Appeal Nos. 01962390, 01962389
Agency Nos. 
OEO-174-95, OEO-175-95

May 29, 1998

DECISION

The appellants, through their attorney, timely filed appeals with this Commission from final agency decisions, dated January 11, 1996, which the agency issued pursuant to EEOC Regulation 29 C.F.R. §1614.107(a). The Commission accepts the appellants' appeals in accordance with EEOC Order No. 960, as amended, and consolidates the appeals pursuant to 29 C.F.R. §1614.606 as they involve the same matter. For the reasons stated below, the Commission affirms the agency's dismissal of the appellants' complaints.

ISSUE PRESENTED

Whether the agency properly dismissed the appellants' complaints based on a finding that the appellants, who per-formed scientific research at the agency under Visiting Fellowship awards, were not employees of the agency.

BACKGROUND

On December 18, 1995, the appellants filed formal complaints of discrimination. Appellant 1 alleged that the agency discriminated against her based on her sex (pregnancy). Appellant 2, Appellant 1's husband, alleged that the agency discriminated against him based on his race (Asian) and national origin (Chinese).[FN1] The agency dismissed the appellants' complaints pursuant to 29 C.F.R. §1614.107(a) on the ground that the appellants were not employees of the agency under the employee/independent contractor test enunciated in Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir. 1979).

Many of the relevant facts in this case are undisputed. By letters dated February 14, 1994, the agency notified the appellants that they each had received awards as Visiting Fellows in the agency's National Institutes of Health (NIH) Visiting Program. The letters indicated that the awards would enable the appellants to gain biomedical research experience at the NIH under the sponsorship of Senior Research Investigator 1, Laboratory of Molecular Pharmacology (LMP), National Cancer Institute (NCI). The letters also indicated that the awards were for a period of two years, that Appellant 1 would receive a stipend of $28,000 for the first year, that Appellant 2 would receive a stipend of $30,000 for the first year, and that no travel reimbursement was authorized. The letters further indicated that continuation of the fellowships beyond the first year would be based on demonstrated progress and approval by the sponsor and the institute director.

The appellants began their research on August 16, 1994. On June 12, 1995, the appellants informed Senior Research Investigator 1 that Appellant 1 was pregnant. Allegedly, Senior Research Investigator 1 repeatedly encouraged the appellants to abort the pregnancy. Allegedly, Senior Research Investigator 1 began to inquire about Appellant 1's schedule almost every day and to closely monitor her activities. Allegedly, Senior Research Investigator 1 also pressured Appellant 1 not to submit a Declaration of Pregnancy form to the Radiation Safety Branch (RSB) that would have entitled her to heightened protection from radiation. On June 29, 1995, Appellant 2 detected that Appellant 1 was contaminated with radiation. According to the final agency decision, the Federal Bureau of Investigation, the Nuclear Regulatory Commission, and the NIH's Office of Security, were investigating Appellant 1's exposure to radiation and the events surrounding that exposure. The final agency decision indicated that the agency hoped that the criminal probe would conclude shortly and result in the prosecution of those responsible for placing the health and safety of the NIH community at risk.

By letters of July 10, 1995, after being informed that the appellants did not wish to work for Senior Research Investigator 1, the agency placed the appellants on administrative leave, effective immediately, with "full retention of pay and any benefits to which they were entitled."The agency informed the appellants that it was working with NCI staff to find other research opportunities for them to pursue. By letters of August 21, the agency informed the appellants of the agency's approval of their assumption of new duties in the National Institute of Deafness and Communication Disorders (NIDCD) under the direction of Senior Research Investigator 2. The letters informed the appellants that they may assume their new duties as soon as Senior Research Investigator 2 may direct. By letters of October 5, 1995, the agency notified the appellants officially of the transfer of their Visiting Fellow awards from the NCI to the NIDCD, effective September 25, 1995 through August 15, 1996, with stipends continued at the rates of $29,500 and $32,000. The notices indicated that the appellants' new sponsor was Senior Research Investigator 2, Laboratory of Neurochemistry.

According to the NIH Manual, the purpose of the Visiting Program is to provide opportunities for distinguished foreign scientists at all levels of their careers to work with senior NIH investigators on problems of mutual interest and, thereby, to advance knowledge in the health sciences, to enhance the NIH environment, and to influence the development of biomedical research and research resources internationally. Under the Visiting Program, there are two types of fellowships: Visiting Fellowships which are awarded to foreign scientists with 3 years or less of relevant postdoctoral research and Service Fellowships which are awarded to foreign scientists with at least 3 years of relevant postdoctoral research.

The NIH Manual identifies the following differences between the recipients of Visiting Fellowships and the recipients of Service Fellowships. The Manual indicates that the Visiting Fellowships offer advanced research experience and training but do not require the performance of services for the NIH. The Manual requires that Visiting Fellows be physically present in the NIH research facilities, that they not be assigned elsewhere, and that they not engage in outside employment and/or teaching. According to the Manual, Visiting Fellows are not NIH employees and they do not count against an Institute's position ceiling. However, the number of Visiting Fellows in each institute is limited by the number of senior intramural staff investigators within each institute. According to the Manual, Visiting Fellow stipend levels are to be periodically reviewed for comparability with awards for other training fellowship programs.

In contrast, the Manual indicates that the Service Fellowships, which are awarded to Visiting Associates with at least 3 years of relevant postdoctoral research and to Visiting Scientists with at least 6 years of relevant postdoctoral research, require the performance of services for the NIH. The Manual indicates that Visiting Associates and Visiting Scientists are appointed to conduct basic and applied research studies and investigations related to health in the NIH intramural laboratories. According to the Manual, Visiting Associates and Visiting Scientists perform services for the NIH and are considered to be employees of the NIH. As employees, they are bound by the agency's Standards of Conduct on outside employment. The Manual indicates that Visiting Associates and Visiting Scientists count against an Institute's position ceiling. According to the Manual, initial Visiting Associate stipends should fall in the range of GS-9, step 1, to GS-12, step ten, as paid for professional scientific duties similar to those performed by professional NIH staff members in the Civil Service who are assigned to health research and investigation. Initial Visiting Scientist stipends should fall in the range of GS-12, step 1, to the maximum allowable salary of the General Schedule.

The NIH Manual identifies the following similarities between the recipients of Visiting Fellowships and the recipients of Service Fellowships. Each Institute sponsor is responsible for ensuring that the research conducted by Visiting Program participants is reviewed under the same procedures as other Institute research projects and that the participants receive appropriate instructions in safety procedures and the proper use and care of animals and equipment. Each Institute may, at its discretion, and subject to the availability of funds, authorize the payment of travel expenses for Visiting Fellows, Visiting Associates, and Visiting Scientists to scientific meetings or to present scientific papers during the award/appointment period. The publication and presentation of scientific discoveries by all Visiting Program participants are governed by the same policies as for other scientists involved in research at the NIH. The rights of the Government in and to inventions conceived or actually reduced to practice are governed by all provisions of Executive Order 10096, dated 23 January 1950, and any orders, rules, regulations, or the like issued thereunder. The sponsoring Institute must arrange for Visiting Fellows, Visiting Associates, and Visiting Scientists to have a medical examination as required by NIH Personnel Instructions 339-2 "Medical Evaluation for Assignment to NIH Positions."

The NIH Manual also describes benefits afforded to Visiting Fellows. The agency requires Visiting Fellows to obtain their own health insurance but reimburses Visiting Fellows for low-option coverage. Visiting Fellows may use the Occupational Medical Service for injuries occurring in the laboratory and for emergency dental care, but are not covered by worker's compensation. Visiting Fellows do not earn leave but are excused on Federal holidays and, by their sponsors, for reasonable cause such as ill health, and for a reasonable period of time, e.g., two weeks, to allow for cultural exchange and relaxation. However, according to the Manual, stipends and health insurance continue only through excused leaves of absence. The Manual indicates that because a Visiting Fellowship is an award for research experience and training, the agency does not deduct Social Security (FICA) from stipends. Visiting Fellows must file quarterly estimated State and local income tax forms with his or her State of residence.

The agency's pre-arrival instructions informed the appellants that their Visiting Fellow stipends would not represent compensation for employment services, or remuneration for service subject to the direction or supervision of the NIH, but that if they terminated their fellowships early and received more stipend than they were due, they would be responsible for reimbursing the NIH. Upon arrival, the appellants signed acceptance notices indicating that their awards could be revoked in whole or in part at any time by the Director of the NIH, provided that the revocation shall not include any amount previously paid.

The agency's "Instructions for Visiting Fellows When Activating Award" indicate that if there exists a tax treaty which allows Visiting Fellows from a particular country to exclude their stipend from federal taxation, the NIH will not withhold any of their stipend for federal taxes. The instructions informed Visiting Fellows that because the agency does not withhold state taxes from stipend checks, they had to pay estimated state taxes quarterly.

The record, as supplemented on appeal by the parties, contains declarations from agency officials affirming the relationship between Visiting Fellows and the NIH described above. One agency official indicates that Visiting Fellows are required to adhere to the agency's standards of conduct and ethics (including clearance of manuscripts submitted for publication), laboratory safety requirements (including use of recombinant DNA, hazardous substances, and radioactive isotopes), and regulations covering animal or human subjects. Another agency official indicates that since stipends are obligated a year in advance for Visiting Fellowships, the stipends for Visiting Fellows were not in jeopardy during the Government shutdown. The agency employee who gave an orientation to the appellants upon their arrival at the agency, declares that she never told the appellants that they were Federal Government employees.

The record also contains declarations from the appellants, three other fellows, and Senior Research Investigator 1, and additional affidavits from the appellants. Senior Research Investigator 1 indicates that LMP is composed of several research groups and that he supervises the group that is informally known as the Biophysical Pharmacology Group (BPG), which includes Visiting Fellows and Intramural Research Training Award Program (IRTA) fellows. Senior Research Investigator 1 represents that the fellows under his sponsorship have been free to choose among many possible projects within the scope of the research interest of the BPG, set their own working hours, decide what experiments to conduct and the order of the experiments, and to request any additional materials they need. Senior Research Investigator 1 represents that the fellows attend regular group meetings where they discuss the BPG's progress on various projects. However, according to Senior Research Investigator 1, the fellows are not required to, and do not, report their daily activities to him, or report to him on any "scheduled" basis to discuss the progress of their projects. Senior Research Investigator 1 indicates that the fellows are required to keep notebooks on their research, a standard practice in any scientific laboratory, but that there are no requirements as to format or style. Senior Research Investigator 1 represents that, as a matter of practice, he does not subject the notebooks to scrutiny or copy their contents without permission. According to Senior Research Investigator 1, he allows the fellows to take excused absences as requested and does not require the fellows to conduct research more than forty hours a week.

According to the appellants, Senior Research Investigator 1 recruited them to assist him in a molecular biology project aimed at developing a novel method, referred to as Restriction Display (RD-PCR), for displaying more efficiently the existence of expressed genes. The appellants represent that they were required to work in Senior Research Investigator 1's laboratory, that the NCI provided them with all the equipment and supplies that were necessary for their research, but that all requests for materials had to be approved by Senior Research Investigator 1 as the Principal Investigator. The appellants represent that when they began working on the project, Senior Research Investigator 1 proposed a particular research method which he expected them to use and that when this method proved ineffectual, they had to obtain Senior Research Investigator 1's approval before using their own protocol. According to the appellants, Senior Research Investigator 1 exerted control over the manner in which the appellants divided up their research, and that when another Principal Investigator at NCI expressed an interest in collaborating on the project, Senior Research Investigator 1 chose to decline the offer without consulting them. The appellants represent that Senior Research Investigator 1 set deadlines for their research, required them to work tirelessly on the project in his quest to patent the new procedure, and required that they meet with him on a regular basis to discuss the data they had ac-cumulated and the overall results of their experiments. They also represent that Senior Research Investigator 1 required that they record their data in a certain manner, that he had access to the notebook and to the computer files in which they recorded their data, and that on numerous occasions he accessed and copied their data without consulting them. Finally, the appellants represent that they considered themselves to be NIH employees and that no one had ever told them they were not NIH employees. The appellants submit a copy of an April 28, 1994 letter to them from Senior Research Investigator 1 wherein he informed them that the work at NCI had taken a surprising and very promising turn, that NCI now had a new, exciting lead for advanced therapy of both cancer and AIDS, and that their expertise in the molecular and cell biology was critical to the success of the project. Senior Research Investigator 1 emphasized the extraordinary importance of the project and indicated that it was very important that the work go forward as fast as possible.

In response to the appellants' representations, Senior Research Investigator 1 indicated that he accorded the appellants the same level of independence, flexibility and respect as other Visiting Fellows and IRTA fellows. Senior Research Investigator 1 represented that he did not bring the appellants to the NIH with one specific project in mind; the appellants chose their own project; he did not control the details of the appellants' experiments or provide them with daily supervision; he did not exert control over the manner in which the appellants divided up their research; he did not impose deadlines on the appellants' research or require that they work tirelessly; he did not use or copy the appellants' notebooks without their permission; and he did not control and direct the appellants' work or demand from them the result to be achieved or the details by which that result was to be achieved. Senior Research Investigator 1 represented that he did not decline the offer of another Principal Investigator to work with the appellants, that with their agreement he arranged with his laboratory chief for the Investigator's participation but the appellants later disapproved it.

According to Visiting Fellow 1, Senior Research Investigator 1 is a highly motivated and driven scientist, yet one who permits a considerable degree of flexibility with respect to the manner in which Visiting Fellow 1 designs and executes his laboratory-based projects, including the timing of his experiments and the overall direction of the research. Visiting Fellow 1 also represents that Senior Research Investigator 1 anticipates that a high standard and volume of work be accomplished in a timely manner. Visiting Fellow 1 further indicates that one of the beneficial aspects of conducting research under Senior Research Investigator 1's supervision is that Senior Research Investigator 1 is supportive of his involvement in other science-related activities at the NIH even though they do not enhance his current research output.

IRTA Fellow 1 represents that working conditions in the BPG are good and that he does not feel pressured to work "extra" hours or to publish faster. IRTA Fellow 1 also represents that he is able to set his own working hours and to obtain materials for experiments, after discussion with Senior Research Investigator 1, if they are not too expensive. IRTA Fellow 1 further represents that Senior Research Investigator 1 has a lenient management style and does not supervise his daily activities.

IRTA Fellow 2 represents that Senior Research Investigator 1 had a liberal attitude in allowing time off for vacations, family illnesses, and other personal matters, and that he allowed IRTA Fellow 2 considerable freedom in setting his own work hours. IRTA Fellow 2 also represents that Senior Research Investigator 1 motivated the fellows by giving them a good environment to work in, and by reminding them of how their research could make a difference in the effort to cure cancer.

APPEAL CONTENTIONS

On appeal, the appellants contend that the agency wrongly applied the Spirides test to the record facts. The appellants contend that the NIH controlled the means and manner of their work performance, including their research methods or protocols, whether they could collaborate with other researchers, how they divided up their research, and what materials they used. The appellants also contend that they were economically dependent on the NIH, and that the NIH imposed a number or restrictions on their appointment, renewal, and performance which were more consistent with an employer-employee relationship than with an employer-independent contractor relationship. The appellants further contend that consideration of the other Spirides factors, including the provision of laboratory space, equipment, and materials; the reimbursement for health insurance, and the granting of leave point to an employer-employee relationship. Finally, the appellants contend that since Title VII is remedial in nature, it should be liberally construed and ambiguities should be resolved in favor of the complaining party.

In response, the agency contends that because Title VII is a waiver of sovereign immunity, it ought to be strictly construed to limit remedies to persons who are clearly employees of the Federal Government. The agency also con-tends that the crux of the issue is whether or not the individual is treated in the same or in a similar enough manner as an employee to be given employee status under Title VII. The agency argues that it correctly considered all of the circumstances in concluding that the appellants were not employees under the Spirides test.

ANALYSIS AND FINDINGS

Sovereign Immunity
The agency contends that because Title VII is a waiver of sovereign immunity, it ought to be strictly construed to limit remedies to persons who are clearly employees of the Federal Government. It has long been established that the United States, as sovereign, "is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit."United States v. Testan, 424 U.S. 392, 399 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586 (1941).

Section §717(c) of Title VII, 42 U.S.C. 2000e-16(c), sets forth the following consent to be sued:
an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

Thereby, the United States has waived its sovereign immunity as to suits by employees and applicants for employment.

Definition of "Employee" in Section 717 of Title VII
Section 717 of Title VII, 42 U.S.C. 2000e-16, does not provide a definition for the term "employee." The term "employee" is defined in section 701(f) of Title VII, 42 U.S.C. 2000e(f), as "an individual employed by an employer. [FN2]

The Supreme Court has found, in a case arising under a statute with the identical definition of "employee," the Employee Retirement Income Security Act of 1974 (ERISA), that this definition of "employee" is "completely circular and explains nothing." Nationwide Mutual Insurance Co. et. al. v. Darden, 503 U.S. at 323. In the Darden case, the Court did not find any other provision in the statute that gave specific guidance on the term's meaning or that suggested that construing it to incorporate traditional agency law principles would thwart the congressional design or lead to absurd results. Therefore, the Court adopted the common law of agency test for determining who qualifies as an "employee" under ERISA. Similarly, there is no provision in Title VII which provides specific guidance on the meaning of the term "employee" or that suggests that construing the term to incorporate traditional agency law principles would thwart the congressional design or lead to absurd results. Thus, use of the common law of agency test for determining who qualifies as an "employee" under Title VII is consistent with the waiver of sovereign immunity set forth in section 717 (c) of Title VII.

However, even if an argument could be made that the definition of employee in section 701 of Title VII does not apply to section 717 of Title VII, the common law of agency test for determining who qualifies as an "employee" still would be applicable to section 717 of Title VII. [FN3] In a case involving a statute which did not contain a definition of the term "employee", the Copyright Act of 1976, the Supreme Court observed that it was well established that "[w]here Congress uses terms that have accumulated settled meaning under. . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms."Community for Creative Non-violence v. Reid, 490 U.S. at 739, quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981). The Court also observed that it had concluded in several prior cases that when Congress used the term "employee" without defining it, Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine. Id. at 739-740.The Court found nothing in the Copyright Act which indicated that Congress used the words "employee" and "employment" to describe anything other than the conventional relation of employer and employee. The Court concluded that Congress intended that the term "employee" in that statute be understood in light of the common law of agency. Id.

Based on the Court's decisions in the Darden and the Reid cases, the Commission finds that the term "employee" as it is used in section 717 of Title VII must be understood in light of the common law of agency.

The Common Law of Agency Test
In the Darden case, the Court adopted the factors listed in the Reid case, 490 U.S. at 751-752, as part of the common-law test for determining who qualifies as an "employee" under ERISA: the hiring party's right to control the manner and means by which the product is accomplished; 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. 503 U.S. at 323-324. The Court also referenced the Restatement (Second) of Agency §220(2) (1958) as listing nonexhaustive criteria for identifying a master-servant relationship, and Rev. Rul. 87-41, 1987-1 Cum. Bull. 296-299 as setting forth 20 factors as guides in determining whether an individual qualifies as a common-law "employee" in various tax law contexts. The Court emphasized, however, that the common-law test contains "no shorthand formula or magic phrase that can be applied to find the answer,...all of the incidents of the relationship must be assessed and weighed with no one factor being decisive."503 U.S. at 324, quoting NLRB v. United Ins. Co. Of America, 390 U.S. 254, 258 (1968).

In prior cases, the Commission has held that the test for determining whether an individual may be deemed an employee under section 717 of Title VII is set forth in the Spirides decision upon which the agency relied in dismissing the appellants' complaints. Abramoff v. Department of the Navy, EEOC Request No. 05940476 (December 22, 1994); DaVeiga v. Department of the Air Force, EEOC Request No. 05930201 (July 13, 1993); Puri v. Department of the Army, EEOC Request No. 05920107 (March 5, 1992); and Bandali v. Department of Labor, EEOC Request No. 05910067 (April 11, 1991). The Spirides court held that consideration of all of the circumstances surrounding the work relationship is essential and that no one factor is determinative. 613 F.2d at 831.[FN4]

The Spirides test is consistent with the Supreme Court's decisions in Darden and Reid, except that it references the "economic realities test" under which individuals are considered employees if, as a matter of economic reality, they are dependent upon the business to which they render service. 613 F.2d at 831 and n.22. For this reason, the Spirides test has been called a hybrid test. See Frankel v. Bally, Inc., 987 F.2d 86, 89-90 (2d Cir. 1993), Mares v. Marsh, 777 F.2d 1066, 1067 (5th Cir. 1985). However, as shown in footnote 4, the factors listed for consideration in the Spirides decision are drawn from the common law of agency test, not the economic realities test. Thus, in practice, the application of the Spirides test has not differed appreciably from an application of the common law of agency test. Frankel v. Bally, Inc., 987 F.2d at 90.

Therefore, in accord with the Commission's prior practice and the Darden and Reid decisions, the Commission will apply the common law of agency test, considering all of the incidents of the relationship between the appellants and the agency, in order to determine whether the appellants should be deemed to be "employees" under section 717 of Title VII.

Application of the Common Law of Agency Test in this Case
After considering all of the incidents of the relationship between the appellants and the agency, the Commission finds that the appellants, as Visiting Fellows, should not be deemed to be "employees" under section 717 of Title VII. Instead, the Commission finds that the appellants were the recipients of fellowship awards from the agency which enabled them to gain valuable biomedical research experience and training under the guidance of a senior research investigator. In this respect, the Visiting Fellowships were similar to the grants and fellowships which students receive to provide support for the continuation of their studies.

Of central importance, the Commission finds that, unlike either employees or independent contractors, the terms of the Visiting Fellowships did not require that the appellants complete specific assignments or perform a specified amount or quality of work in order to receive their monthly fellowship stipends. Instead, under the Visiting Fellowship Program the appellants were provided an opportunity to work on a research project of mutual interest to the appellants and Senior Research Investigator 1.

In contrast with an employer-employee relationship, the agency did not have the right to assign the appellants additional research projects without their agreement. The agency also did not establish the hours when the appellants were to do their research. The record contains conflicting testimony as to the amount of control Senior Research Investigator 1 exercised over the appellant's research. However, it is uncontroverted that Senior Research Investigator 1 did not supervise the appellants' research on a daily basis.

In order to obtain the research training, the appellants were required to perform their research in the agency's laboratory and to comply with the agency's safety procedures. The appellants also were required to meet with Senior Research Investigator 1 periodically to discuss their research. In addition, the agency provided the appellants with all of the materials, supplies, and equipment they needed for their research. While these factors could point to an employ-er-employee relationship, the Commission finds that they are insufficient to establish the existence of an employer-employee relationship given the totality of circumstances present in this case.

Other aspects of the relationship between the agency and the appellants, as recipients of Visiting Fellowships, also point to the lack of an employer-employee relationship. The agency did not make retirement or Social Security (FICA) payments for the appellants. The agency also did not withhold state and local taxes. Moreover, the appellants were not covered by the Federal workers' compensation program. They did not accrue sick leave and annual leave. They also were ineligible for other Government-wide employment benefits such as the opportunity to participate in the Federal Employees Health Benefits Program and to obtain Federal Employees Group Life Insurance. [FN5]

In addition, there is no persuasive evidence in the record that the parties intended to establish an employer-employee relationship. The agency informed the appellants in the pre-arrival instructions that their Visiting Fellow stipends would not represent compensation for employment services or remuneration for service subject to the direction or supervision of the NIH. The NIH Manual also specifies that the Visiting Fellowships offer advanced research experience and training but do not require the performance of services for the NIH.

Another indication that the appellants were not agency employees is the method the agency used to determine the Visiting Fellowship stipend levels. According to the NIH Manual, Visiting Fellowship stipend levels were to be periodically reviewed for comparability with awards for other training fellowship programs. In contrast, the stipend levels for Service Fellowships were to be based on the salary levels for the performance of professional scientific duties by agency employees in the Civil Service.

Finally, the training emphasis of the Visiting Fellowship Program also is suggested by the fact that Visiting Fellows do not count against an NIH Institute's position ceiling. In contrast, the recipients of Service Fellowships, who are required under the terms of the Service Fellowship Program to perform services for the agency, do count against an Institute's position ceiling.

Given the totality of the circumstances presented in these cases, the Commission concludes that the appellants were training fellowship recipients rather than "employees" of the agency.

CONCLUSION

For the above-stated reasons, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's dismissal of the appellants' complaints.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUSTBEFILEDWITHINTHIRTY (30) CALEN-DARDAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission.

Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604 (c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that you have the right to file a civil action in an appropriate United States District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this decision. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§791, 794 (c).The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat

FN1. Both appellants are Chinese nationals.

FN2. The definition of "employee" includes some exceptions that are not relevant to this case.

FN3. "Employee" is defined in section 701 (f) of Title VII, 42 U.S.C. 2000e(f), as "an individual employed by an employer...."However, the definition of "employer" in section 701 (b) of Title VII, 42 U.S.C. 2000e(b), specifically excludes the United States and corporations wholly owned by the Government of the United States. Instead, section 717 of Title VII, 42 U.S.C. 2000e-16, specifies the entities which are covered by that section.

FN4. The Spirides decision included a non-exhaustive list of factors that should be considered in determining whether an individual is an employee under section 717 of Title VII: (1) the extent of the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation, with reference to whether the work is usually done under the direction of a supervisor or is done by a specialist without supervision; (3) the skill required in the particular occupation; (4) whether the "employer" or the individual furnishes the equipment used and the place of work; (5) the length of time the individual has worked; (6) the method of payment, whether by time or by the job; (7) the manner in which the work relationship is terminated, i.e., by one or both parties, with or without notice and explanation; (8) whether annual leave is afforded; (9) whether the work is an integral part of the business of the "employer"; (10) whether the worker accumulates retirement benefits; (11) whether the "employer" pays social security taxes; and (12) the intention of the parties. 613 F.2d at 832.The Spirides court indicated, however, that the most important factor to be considered is the extent of the employer's right to control the means and manner of the worker's performance. 613 F.2d at 831.

FN5. The Commission observes that the agency reimbursed the appellants for health insurance; permitted the appellants to use the Occupational Medical Service for on-the-job injuries; and granted the appellants excused absences from their research activities. However, the Commission does not find the provision of these fellowship benefits sufficient to establish employee status, absent other significant indicia of an employer-employee relationship.