EEOC v. MCI Telecommunications, 4th Cir. (1999)
EEOC v. MCI Telecommunications, 4th Cir. (1999)
No. 98-1195
MCI TELECOMMUNICATIONS,
INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-96-661-A)
Argued: April 7, 1999
Decided: July 28, 1999
Before ERVIN, LUTTIG, and TRAXLER,
Circuit Judges.
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Affirmed in part and reversed in part by unpublished opinion. Judge
Ervin wrote the opinion, in which Judge Luttig and Judge Traxler
joined.
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COUNSEL
ARGUED: Susan Lisabeth Starr, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. David
Jay Cynamon, SHAW, PITTMAN, POTTS & TROWBRIDGE,
I.
In 1991 MCIT decided to hire additional workers to assist with
projects in the company's Management Information Systems (MIS)
department. Gary Braz, a senior MIS manager at MCIT, asked a subordinate, Edmond Parkinson, to assist him in screening resumes and
interviewing personnel to staff the new MIS projects. At Braz's
request, Parkinson collected resumes from MCIT-approved vendors.1
One such vendor, The Registry, Inc., provided MCIT with a number of resumes, including the resume of the complainant in this case,
Dolly Cox. According to her own deposition testimony, Cox submitted her resume to The Registry with the clear intent to operate as an
independent contractor. Cox understood that The Registry would
arrange interviews for her, place her with various corporate clients,
and then remit compensation directly to her. As did the other Registry
employees, Cox specified the hourly rate that she would be paid by
The Registry. The Registry would then negotiate with its corporate
clients for a placement fee that covered contractor compensation,
overhead, and profit.
MCIT solicited resumes from The Registry pursuant to a contract
specifying that all personnel supplied by The Registry were to be considered employees of The Registry only. MCIT maintains that in
November of 1991 it sought to hire Registry consultants to staff one
particular project: a complex multi-media presentation that the MIS
department was preparing to unveil at a company-wide meeting.
Edmund Parkinson began the hiring process for this project, operating
under the supervision of Gary Braz.
From among the resumes submitted by vendors, Parkinson selected
six candidates for an initial interview. One of these candidates was
Dolly Cox. Cox's resume states that she has eight years of experience,
much of it in script writing, plus a familiarity with Macintosh computers. Cox's resume also indicates that she has a master's degree in "interactive technologies" and formal training in video disk design.
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1 MCIT uses the term "vendors" in reference to the employment agencies that routinely provide the company with technical consultants.
3
Five years after the events at issue, the EEOC filed a complaint in
district court, alleging that MCIT had violated Title VII's prohibition
against discrimination in hiring when the company selected Daines
and Baumstark instead of Cox. MCIT responded with a motion for
summary judgment. The district court granted the motion on the
grounds that Cox's relationship with MCIT was too"inchoate" to
warrant Title VII protection.
The EEOC then moved for reconsideration, arguing that summary
judgment was premature because no discovery had yet occurred in the
case. The district court granted the EEOC's motion without prejudice
to MCIT's right to refile for summary judgment at the conclusion of
discovery. Once the parties had completed discovery, MCIT
requested that the EEOC dismiss the case. When the EEOC refused,
MCIT moved again for summary judgment, arguing that Cox was an
independent contractor, or, in the alternative, that the EEOC had not
presented sufficient evidence of discriminatory conduct. MCIT also
moved the court for a grant of attorneys' fees and costs.
The district court granted both of MCIT's motions, ruling that Cox
was an independent contractor as a matter of law, and awarding attorneys' fees and costs to MCIT. The court determined that these fees
and court costs should accrue from a date ten days subsequent to the
publication of the Fourth Circuit's opinion in Cilecek v. Inova Health
Syst. Servs., 115 F.3d 256 (4th Cir. 1997). The district court viewed
Cilecek as dispositive of the issues at bar and concluded that once the
opinion issued, the EEOC should have voluntarily dismissed the Cox
litigation.
This appeal followed.
II.
Title VII's protective reach extends beyond employees to cover job
applicants, but only in the context of a potential employment relationship. See Bender v. Suburban Hosp., Inc., 159 F.3d 186, 189 n.2 (4th
Cir. 1998). The EEOC argues that once a hiring party has created a
common-law employment relationship with its independent contractors, unsuccessful applicants for those contracting positions may then
invoke Title VII's protection against discrimination in hiring. We
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decline to reach this issue, and hold instead that viewing the facts in
the light most favorable to Cox, the EEOC has not presented sufficient evidence of discrimination to survive summary judgment on the
merits of its claim.
Specifically, the EEOC has failed to rebut Braz's stated rationale
for hiring Daines and Baumstarck instead of Cox. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 807 (1973) (once the Title VII
defendant articulates a legitimate, non-discriminatory reason for its
decision, the plaintiff must prove that this reason is a pretext for illegal discrimination). If MCIT offers a plausible explanation for its hiring decision, the EEOC must demonstrate that this articulated
justification is both false and a pretext for illegal discrimination. See
Jiminez v. Mary Washington College, 57 F.3d 369, 378 (4th Cir.
1995). Moreover, to establish pretext where relative job qualifications
are at issue, the EEOC must prove, not only that Cox was qualified
for the position, but that her qualifications were superior to those of
the candidates actually hired. See Evans v. Technologies Applications
& Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996). See also Gairola v.
Commonwealth of Va. Department of General Svcs., 753 F.2d 1281,
1287 (4th Cir. 1985).
To support its claims of falsity and pretext the EEOC relies upon
Braz's allegedly inconsistent statements concerning MCIT's hiring
criteria for the contractor positions. Braz told an Arlington County
Human Rights Commission investigator that he sought the most qualified candidates; later, Braz testified that he hired Baumstark for his
broad range of television production and editing experience and
Daines for his junior status and low billing rate. 4 Although Braz may
have emphasized differing criteria in each of these two explanations,
we do not find that this inconsistency rises to the level of mendacity.
Braz's statements, standing alone, are not persuasive evidence of discriminatory pretext, and the EEOC offers nothing else.
MCIT has maintained that budget restrictions affected Braz's hiring decision, causing him to prioritize Baumstark's broad experience
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4 Daines testified that he received $25.00 per hour from his employer
for the MCIT project. This amount is less than half of the $60.00 hourly
minimum rate that Cox requested from The Registry.
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however, the relative weighting of these factors must be industryspecific. See id. at 260 ("the degree of distinction between [an
employer and the hiring party in an independent contractor relationship] is related to the work itself and the industry in which it is performed."). Our analyses in Cilecek and Bender were tailored to the
special circumstances of the medical profession, where ultimate control of patient care must, of necessity, rest with the treating physician.
See Cilecek, 115 F.3d at 260 (concluding, "it is less productive to
debate the control over the discharge of professional services in the
medical context than it might be in other service relationships.").
When deciding whether a physician is a hospital employee, the court
must therefore look beyond the degree of control to the full context
of the physician's work environment.
Cilecek was a case about doctors and hospitals; the instant case, by
contrast, concerns contingent workers in the information technology
industry. We find that it was not a priori unreasonable for the EEOC
to distinguish Cilecek on this basis, or for the agency to argue on
these facts that MCIT's contingent workers should rightfully be designated common-law employees for the purpose of Title VII litigation. Indeed, the Ninth Circuit accepted a similar argument when it
held that certain contingent information technology workers engaged
by the Microsoft Corporation were common-law employees entitled
to benefits under the federal Employee Retirement Income Security
Act (ERISA). See Vizcaino v. Microsoft Corp., 120 F.3d 1006, 10121014 (9th Cir. 1997).
IV.
Because Cox's claim fails for want of sufficient proof of discrimination, we need not decide today whether an unsuccessful applicant
for an independent contractor position may sue under Title VII, if a
court later determines that the person actually hired for the position
was a common-law employee. We simply note that our holding in
Cilicek did not squarely resolve this issue. The district court erred in
concluding otherwise, and thus MCIT is not entitled to the court's
award of attorneys' fees and costs.
AFFIRMED IN PART AND REVERSED IN PART
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