Casey v. Department of Health & Human Services ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-1115
    DEANNE CASEY,
    Plaintiff, Appellant,
    v.
    DEPARTMENT OF HEALTH AND HUMAN SERVICES; SYLVIA M. BURWELL,
    in her capacity as Secretary of the Department of Health and
    Human Services; DEBORAH LEE JAMES, in her official capacity as
    Secretary of the United States Air Force; DEPARTMENT OF DEFENSE;
    WILLIAM CARPENTER; FRANK GLENN; LEON E. PANETTA, in his official
    capacity as Secretary of Defense,
    Defendants, Appellees,
    STG INTERNATIONAL; JESSE BURK, individually and in her official
    capacity as Health Promotion Operation Manager at the Federal
    Occupational Health Division of the Department of Health and
    Human Services,
    Defendants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    [Hon. M. Page Kelley, U.S. Magistrate Judge]
    Before
    Howard, Chief Judge,
    Selya and Stahl, Circuit Judges.
    Joseph L. Sulman, with whom David I. Brody and Law Office of
    Joseph L. Sulman, were on brief, for appellant.
    Anita Johnson, Assistant United States Attorney, with whom
    Carmen M. Ortiz, United States Attorney, was on brief, for
    appellees.
    December 7, 2015
    STAHL, Circuit Judge.     The Plaintiff-Appellant, Deanne
    Casey, was formerly employed as a nurse coordinator with the
    Civilian Health Promotion Services Program ("CHPS Program") at
    Hanscom Air Force Base in Bedford, Massachusetts ("Hanscom").
    After Casey's employment was terminated, she brought suit against
    the government contractor that employed her, her supervisor, as
    well as several government agencies and officials that she believed
    were involved in her termination.   In relevant part, Casey alleged
    a violation of her First Amendment rights pursuant to Bivens v.
    Six Unknown Named Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
     (1971).1   She also alleged that several of the defendants had
    engaged in unlawful gender discrimination in violation of Title
    VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
    In the proceedings below, the district judge dismissed
    Casey's Bivens claim.    Then, later, a magistrate judge granted
    summary judgment to the remaining defendant on the Title VII claim.
    Casey now appeals.    We AFFIRM both dispositions, though we do so
    as to the Bivens claim for reasons other than those relied upon by
    the district judge.
    1 A "Bivens" action is a civil suit brought against
    agents of the United States, and is viewed as the federal analog
    to § 1983 suits against state officials.      See Soto-Torres v.
    Fraticelli, 
    654 F.3d 153
    , 157-58 (1st Cir. 2011).
    - 3 -
    I. Facts and Background
    A.    Casey's Employment at Hanscom
    The CHPS Program was created pursuant to an interagency
    agreement between the Federal Occupational Health Division ("FOH
    Division") of the United States Department of Health and Human
    Services ("DHHS") and the United States Air Force Materiel Command
    ("AFMC").    Its purpose is to provide occupational health services
    to civilian employees of the AFMC.                 However, neither the FOH
    Division nor the AFMC directly administer or run the CHPS Program.
    Rather, the FOH Division engages private contractors to perform
    these functions.
    In 2007, Casey was hired as a Nurse Coordinator by STG
    International       Inc.    ("STG"),     the     government       contractor     then
    employed to administer the CHPS Program at Hanscom.                      As a Nurse
    Coordinator,    Casey       was   responsible      for    teaching      health    and
    wellness    classes,       conducting    blood    pressure       and   cardiac   risk
    profile screenings, and performing other health-related services
    for AFMC personnel employed at Hanscom.
    In 2010, the contractual arrangements were amended.                     A
    company     known      as     Millennium       Health      and     Fitness,      Inc.
    ("Millennium") became the prime contractor to the FOH Division,
    and   STG      entered       into    a     subcontract        with      Millennium.
    Contemporaneously, Casey executed a new employment agreement with
    STG, now the subcontractor to Millennium.                This agreement provided
    - 4 -
    that Casey would continue her employment with STG, performing
    similar job functions as she had previously when STG was the
    primary contractor to the FOH Division.
    At all relevant times, STG set and paid Casey's salary
    and provided her with employee benefits and W-2 forms.                Casey's
    immediate STG supervisor was Jesse Burk, who was the Health
    Promotion Operation Manager overseeing the CHPS Program at a total
    of eight Air Force bases across the country.                 Although Burk
    initially was employed by STG when it was the prime contractor, in
    2010, coincidentally with the contract change, she became an
    employee of Millennium.      Burk reported to Susan Steinman, who was
    an employee of the FOH Division of the DHHS.
    At all times, based on criteria prescribed by the FOH
    Division, Burk was responsible for developing the health and
    wellness curriculum that Casey taught at Hanscom.                Burk also
    reviewed Casey's calendar on a monthly basis to ensure that Casey
    was teaching the requisite number of courses and was otherwise
    using her time effectively.     While Burk was employed by STG, among
    her other duties, she was responsible for completing Casey's
    performance   evaluations.      When    Burk   transferred     from   STG   to
    Millennium,   direct   responsibility          for   Casey's    performance
    evaluations fell to a different STG employee, though Burk continued
    to provide Casey with feedback and recommendations.
    - 5 -
    The record suggests that, sometime in 2011, Casey's work
    performance began to falter.            For example, in August 2011, Burk
    was forced to counsel Casey about her poor communication skills
    and her unexplained absences from her office during the workday.
    The situation escalated in November 2011, when Burk
    received reports from William Carpenter, the manager of the Health
    and Wellness Center at Hanscom (where Casey's office was located),
    that   Casey      was    not   performing   her     job     duties   and    was     being
    uncommunicative.          On Thursday, November 10, Casey discovered a
    memorandum critical of her performance sitting on a workplace copy
    machine     and    confronted      Carpenter      in      his   office      about     the
    memorandum's contents.           The parties offer diverging accounts of
    exactly what transpired, although it is clear that, immediately
    following the confrontation, Casey reported to military police
    that Carpenter had assaulted her.
    Burk did not learn of the November 10 incident until the
    following Monday, November 14, when she received an e-mail from
    Judith Holl, an AFMC employee in charge of overseeing the CHPS
    Program.     Holl's e-mail reported a "major incident at Hanscom,"
    and in subsequent communications with Burk, Holl urged that Casey
    be   removed      from   the   CHPS   Program.         In   turn,    Burk    contacted
    Steinman.      Over the course of the day on November 14, Holl, Burk,
    and Steinman communicated by phone and e-mail about the need to
    terminate Casey's employment based on her poor performance.
    - 6 -
    The   next    day,    November       15,     the   tenor    of   the
    communications changed drastically, as Holl, Burk, and Steinman
    grew increasingly concerned that Casey was refusing to respond to
    military personnel at Hanscom, and was unaccounted for at a secure
    military facility.      Holl indicated that she had "grave concerns
    about . . . Casey's presence [at] Hanscom," and she reported that
    Casey sounded "paranoid almost delusional."              Holl requested that
    Casey be "removed immediately from [Hanscom] and her ID card
    confiscated."
    Around midday on November 15, STG made the decision to
    terminate Casey's employment.       Burk spoke with Casey by phone, and
    notified her that she was being placed on administrative leave.
    Shortly   thereafter,    Air    Force   Colonel       Frank   Glenn   ("Colonel
    Glenn") arrived at Casey's office, escorted her off the base, and
    revoked her security clearance.          STG formally terminated Casey's
    employment two days later on November 17, 2011.
    B.    The Proceedings Below
    In a First Amended Complaint filed in April 2012, Casey
    asserted a Bivens claim for violation of her First Amendment rights
    against the United States Department of Defense ("DoD"), the DHHS,
    Michael Donley, in his official capacity as Secretary of the United
    States Air Force ("Secretary Donley"), Colonel Glenn (who had
    escorted Casey off-base), and Carpenter (the Hanscom employee whom
    Casey had accused of assault).           The Bivens claim alleged that
    - 7 -
    Casey's employment had been terminated in retaliation for her
    having exercised her First Amendment right to report to military
    police that Carpenter had assaulted her.
    These defendants subsequently filed a motion to dismiss
    based on lack of subject matter jurisdiction.       See Fed. R. Civ. P.
    12(b)(1).       At an ensuing hearing, the district judge dismissed the
    Bivens claim, holding that the Contract Disputes Act, 
    41 U.S.C. § 7101
     et seq., provided Casey with an existing alternative
    remedial scheme under which to bring her claims.
    Later, the district judge granted Casey leave to amend
    her complaint to add a claim of gender discrimination under Title
    VII against STG, Kathleen Sebelius, in her then-official capacity
    as Secretary of the DHHS ("Secretary Sebelius"), and Secretary
    Donley.   Casey subsequently dismissed her Title VII claim against
    STG and Secretary Donley, leaving Secretary Sebelius as the sole
    remaining Title VII defendant.
    In the midst of all of this, with the consent of the
    parties, the case was transferred from the district judge to a
    magistrate judge.2      Secretary Sebelius moved for summary judgment,
    arguing in relevant part that Casey was an employee of STG, not
    the DHHS, and that the DHHS was therefore not liable to Casey under
    2
    The case was actually transferred twice: first from
    the district judge to a magistrate judge, then from one magistrate
    judge to another when the first retired.
    - 8 -
    Title VII.       The magistrate judge agreed and granted summary
    judgment.
    II. Discussion
    Casey now appeals both the district judge's dismissal of
    her Bivens claim and the magistrate judge's entry of summary
    judgment on her Title VII claim.        We consider each issue in turn.
    A.     Bivens
    In Bivens, the Supreme Court recognized for the first
    time an implied private right of action for damages against federal
    officers    alleged   to   have   violated     a   citizen's   constitutional
    rights.    
    403 U.S. at 397
    .       The scope of constitutional violations
    redressable by means of a Bivens action is, however, quite limited.
    Bivens itself recognized a right to relief against federal officers
    alleged to have undertaken a warrantless search and seizure in
    violation of the Fourth Amendment.           
    Id.
         In the more than four
    decades since, the Supreme Court has extended the Bivens holding
    beyond its original Fourth Amendment confines only twice.                 See
    Davis v. Passman, 
    442 U.S. 228
     (1979) (employment discrimination
    in violation of the Due Process Clause of the Fifth Amendment);
    Carlson v. Green, 
    446 U.S. 14
     (1980) (Eighth Amendment violations
    committed by prison officials).         The Court's hesitancy to extend
    Bivens further stems, at least in part, from its recognition that
    Congress    is   generally   better-positioned        to   craft   appropriate
    remedial schemes to address constitutional violations committed by
    - 9 -
    federal officers.       See, e.g., Bush v. Lucas, 
    462 U.S. 367
    , 373
    (1983) ("Our prior cases . . . . establish our power to grant
    relief that is not expressly authorized by statute, but they also
    remind us that such power is to be exercised in the light of
    relevant policy determinations made by the Congress.").
    To date, both the Supreme Court and the First Circuit
    have declined to expressly extend Bivens to encompass a First
    Amendment claim.       See 
    id. at 390
     ("[W]e decline 'to create a new
    substantive    legal    liability   [for    First   Amendment   violations]
    without legislative aid . . . .'") (quoting United States v.
    Standard Oil Co., 
    332 U.S. 301
    , 302 (1947)); see also Ashcroft v.
    Iqbal, 
    556 U.S. 662
    , 675 (2009) (noting that the Supreme Court has
    so far "declined to extend Bivens to a claim sounding in the First
    Amendment"); Air Sunshine, Inc. v. Carl, 
    663 F.3d 27
    , 35 (1st Cir.
    2011)   ("It   is   questionable    whether    Bivens   extends   to   cases
    asserting a violation of First Amendment rights or retaliation for
    the exercise of those rights.").           Undeterred, Casey urges us to
    recognize a Bivens claim premised on a violation of her First
    Amendment rights.
    In deciding whether to recognize a Bivens remedy, courts
    employ a two-step inquiry.       Wilkie v. Robbins, 
    551 U.S. 537
    , 550
    (2007).   "In the first place, there is the question whether any
    alternative, existing process for protecting the interest amounts
    to a convincing reason for the Judicial Branch to refrain from
    - 10 -
    providing a new and freestanding remedy in damages." 
    Id.
     If there
    is no such process already in place, the court must then consider
    whether there exist any "special factors counselling hesitation"
    to the creation of a new judicial remedy.     
    Id.
     (quoting Bush, 
    462 U.S. at 378
    ).
    In the proceedings below, the district judge dismissed
    Casey's Bivens claim after finding that an alternative process
    existed to remedy the alleged infringement of her First Amendment
    rights.   At a hearing on the motion to dismiss filed by the DoD,
    the DHHS, Secretary Donley, Colonel Glenn, and Carpenter, the
    district judge concluded that the Contract Disputes Act afforded
    Casey an avenue by which to pursue her claims against these
    defendants.     Consequently, the district judge did not reach the
    question of whether there existed special factors counselling
    hesitation to the creation of a First Amendment Bivens remedy.
    We review de novo the district judge's dismissal of
    Casey's Bivens claim for lack of subject matter jurisdiction. Town
    of Barnstable v. O'Connor, 
    786 F.3d 130
    , 138 (1st Cir. 2015).     We
    review the allegations in the complaint liberally, treating well-
    pled facts as true, and indulging all reasonable inferences in
    Casey's favor.    
    Id.
       Importantly, we are not bound by the district
    judge's reasoning, and we may affirm an order of dismissal on any
    ground evident from the record.     MacDonald v. Town of Eastham, 
    745 F.3d 8
    , 11 (1st Cir. 2014).
    - 11 -
    The parties dispute not only whether Casey is eligible
    to bring suit under the Contract Disputes Act, but also whether
    special factors counsel against our recognition of a Bivens remedy
    under the circumstances of this case.       As we explain, however, we
    decline to resolve either of these questions because we conclude
    that Casey's Bivens claim is properly dismissed for a far more
    basic reason: it fails to comply with the pleading requirements
    prescribed by Federal Rule of Civil Procedure 8(a)(2).3
    Before we can reach the substance of Casey's Bivens
    claim, we must take a moment to consider the defendants against
    whom this claim is levied.     As we have said, Casey's Bivens claim
    was asserted against the DoD, the DHHS, Secretary Donley (in his
    official   capacity   only),   Colonel   Glenn   (in   his   personal   and
    professional capacities), and Carpenter.
    This list may be quickly whittled down, however, because
    "the Supreme Court has refused to recognize a Bivens remedy against
    federal agencies (even those for which sovereign immunity has been
    broadly waived)."     Tapia-Tapia v. Potter, 
    322 F.3d 742
    , 746 (1st
    3We note that Casey may be correct in her contention
    that she was ineligible to bring suit under the Contract Disputes
    Act because, as an employee of a subcontractor, she was not a
    contractor, nor did her claims directly relate to a contract with
    the federal government. See 
    41 U.S.C. § 7103
    (a) (describing the
    Contract Disputes Act's applicability to "claim[s] by a contractor
    against the Federal Government relating to a contract"). However,
    because it does not affect the end result, we need not expressly
    resolve this issue.
    - 12 -
    Cir. 2003) (citing FDIC v. Meyer, 
    510 U.S. 471
    , 484-86 (1994)).
    Nor may a Bivens suit be brought against a federal officer in his
    official capacity.   Id.; see also Ruiz Rivera v. Riley, 
    209 F.3d 24
    , 28 (1st Cir. 2000).     Accordingly, Casey's Bivens claim is
    foreclosed insofar as it is asserted against the DoD and the DHHS,
    both federal agencies, and against Secretary Donley, whom Casey
    sued only in his official capacity. On top of that, Casey concedes
    in her reply brief that her Bivens claim against Carpenter is not
    viable.   Thus, when all is said and done, what was once a lively
    gathering of Bivens defendants now appears to be reduced to a party
    of one: Colonel Glenn.4
    "Under the Federal Rules of Civil Procedure, a complaint
    must provide 'a short and plain statement of the claim showing
    that the pleader is entitled to relief.'"   Cardigan Mountain Sch.
    v. N.H. Ins. Co., 
    787 F.3d 82
    , 84 (1st Cir. 2015) (quoting Fed. R.
    Civ. P. 8(a)(2)).    The plaintiff need not demonstrate that the
    claim is likely to prevail, but the complaint must include enough
    factual detail to make the asserted claim "plausible on its face."
    
    Id.
     (quoting Iqbal, 
    556 U.S. at 678
    ).
    4 In her reply brief, Casey clarifies that, if we were
    to remand the case to the district court, she would seek to amend
    her complaint to assert a Bivens claim against Judith Holl, the
    AFMC employee who requested Casey's removal from the CHPS Program
    and from Hanscom. Because Casey did not seek to add Holl as a
    defendant in the proceedings below, we cannot - and will not -
    consider the viability of any such claim on appeal. See United
    States v. Isom, 
    580 F.3d 43
    , 53 n.14 (1st Cir. 2009).
    - 13 -
    In    evaluating            the   sufficiency        of    a   complaint     under
    Rule    8,     we    must        first       distinguish      "the       complaint's    factual
    allegations (which must be accepted as true) from its conclusory
    legal allegations (which need not be credited)."                               García-Catalán
    v. United States, 
    734 F.3d 100
    , 103 (1st Cir. 2013) (quoting
    Morales-Cruz v. Univ. of P.R., 
    676 F.3d 220
    , 224 (1st Cir. 2012)).
    Then,     we        must        determine        whether      the    complaint's        factual
    allegations are sufficient to support "the reasonable inference
    that the defendant is liable for the misconduct alleged."                                  Haley
    v. City of Boston, 
    657 F.3d 39
    , 46 (1st Cir. 2011) (quoting Iqbal,
    
    556 U.S. at 678
    ).
    At the outset of our analysis, we must be clear about
    the legal issue that is in dispute.                        Cardigan Mountain Sch., 787
    F.3d at 84. In her First Amended Complaint, the operative pleading
    for purposes of the Bivens claim, Casey alleged that the defendants
    violated her First Amendment rights by terminating her employment
    in retaliation for filing a police report regarding the alleged
    assault      perpetrated              by    Carpenter.        Our    inquiry,      then,    must
    necessarily         focus        on    the    factual    allegations          against   Colonel
    Glenn,       and     we     must       decipher     whether     these         allegations    are
    sufficient to reasonably infer that he is liable for Casey's
    (alleged) unlawful termination.
    Read        in    its       entirety,    the    First       Amended   Complaint
    contains       the        following          allegations       against        Colonel     Glenn:
    - 14 -
    (1) "[o]n several occasions, [Casey] asked officials at Hanscom,
    including [Colonel Glenn], to move her office to another building
    so she would not need to work near Carpenter"; (2) "[a]t all times,
    Col[onel] Glenn knew about Carpenter's harassment of [Casey] and
    the negative effect of the harassment on [Casey]"; and (3) "[on
    November 15, 2011, Colonel Glenn] came to [Casey]'s office and
    escorted [Casey] off the base.            He told [Casey] that she should
    take all her belongings from the office. . . . At this time, . . .
    [Colonel Glenn] . . . knew that [Casey] had filed a police report
    concerning the assault by Carpenter on November 10."
    As we must, we construe these allegations liberally,
    assume their verity, and draw all reasonable inferences in Casey's
    favor.   O'Connor, 786 F.3d at 138.         Yet, even read together, these
    allegations fail to plausibly suggest that Colonel Glenn had any
    involvement   whatsoever      in   the    decision   to   terminate   Casey's
    employment.      Rather, it appears that Colonel Glenn was simply
    assigned the task of escorting Casey from her office and revoking
    her   security    clearance    once      STG   decided    to   terminate   her
    employment.      In other words, based on what is before us, it is
    apparent that Colonel Glenn did not commit the offense of which he
    stands accused.
    For all of these reasons, we conclude that Casey's Bivens
    claim fails to plausibly demonstrate her right to recover against
    - 15 -
    any of the defendants that it names.           Therefore, we AFFIRM its
    dismissal by the district judge.
    B.   Title VII
    Following     the   dismissal   of   her   Bivens   claim,   the
    district judge granted Casey leave to further amend her complaint
    to add a Title VII gender discrimination claim against STG,
    Secretary Donley, and Secretary Sebelius.            In a Third Amended
    Complaint, Casey alleged that these defendants had unlawfully
    terminated her employment in retaliation for her having reported
    to Hanscom authorities that Carpenter had discriminated against
    her on the basis of her gender and had assaulted her in his office
    on November 10, 2011.
    Later, Casey dismissed her Title VII claim against STG
    and Secretary Donley.         Then, as the sole remaining Title VII
    defendant, Secretary Sebelius moved for summary judgment on behalf
    of the DHHS.     The magistrate judge found that Casey was not an
    employee of the DHHS and was therefore ineligible to sue under
    Title VII.     On this basis, the magistrate judge granted summary
    judgment in favor of the DHHS.
    We review orders of summary judgment de novo, assessing
    the record in the light most favorable to the nonmovant and
    resolving all reasonable inferences in that party's favor. Bingham
    v. Supervalu, Inc., __ F.3d __, __, 
    2015 U.S. App. LEXIS 19794
    , at
    *7 (1st Cir. Nov. 13, 2015).        The entry of summary judgment is
    - 16 -
    appropriate where "there is no genuine dispute as to any material
    fact and the movant is entitled to judgment as a matter of law."
    
    Id.
     (quoting Fed. R. Civ. P. 56(a)).     While assessing the nature
    of an employment relationship requires a fact-specific inquiry, we
    may resolve this inquiry on summary judgment in the absence of
    disputed issues of material fact.   Alberty-Vélez v. Corporación de
    P.R. Para La Difusión Pública, 
    361 F.3d 1
    , 7 (1st Cir. 2004).
    Title VII prohibits an employer from retaliating against
    an employee for engaging in certain protected activity, which
    includes making a charge that the employer has engaged in unlawful
    discrimination on the basis of race or sex.    42 U.S.C. § 2000e-2,
    3; see also Ray v. Ropes & Gray LLP, 
    799 F.3d 99
    , 107 (1st Cir.
    2015).   Here, because only employees may bring suit under Title
    VII for unlawful retaliation, the sole issue we must consider is
    whether Casey was an employee of the DHHS.    See 42 U.S.C. § 2000e-
    3(a) ("It shall be an unlawful employment practice for an employer
    to discriminate against any of his employees . . . because he has
    opposed any practice made an unlawful employment practice by this
    subchapter . . . .") (emphasis added); see also DeLia v. Verizon
    Commc'ns Inc., 
    656 F.3d 1
    , 6 (1st Cir. 2011) (concluding that the
    fact that the defendant was not the plaintiff's employer was
    "fatal" to her Title VII retaliation claim).        Casey does not
    dispute that she was an employee of STG, but she invokes the so-
    called "joint employment doctrine" to contend that she was also an
    - 17 -
    employee of the DHHS.       See, e.g., Butler v. Drive Auto. Indus. of
    Am., Inc., 
    793 F.3d 404
    , 408 (4th Cir. 2015) ("[T]wo parties can
    be considered joint employers and therefore both be liable under
    Title VII if they share or co-determine those matters governing
    the essential terms and conditions of employment." (citations
    omitted) (internal quotation marks omitted)).
    Title   VII   defines    an   "employee"    as    "an   individual
    employed by an employer," 42 U.S.C. § 2000e(f), an elucidation
    that the Supreme Court has generously described in a similar
    context as being "completely circular and explain[ing] nothing,"
    Nationwide Mut. Ins. Co. v. Darden, 
    503 U.S. 318
    , 323 (1992).
    Where, as here, the statute contains the word "employee," but does
    not   plainly     define   it,   we   "must   presume    that    Congress     has
    incorporated traditional agency law principles for identifying
    'master-servant relationships.'"           Lopez v. Massachusetts, 
    588 F.3d 69
    , 83 (1st Cir. 2009).
    In   determining    whether      an   employment     relationship
    exists, we look to the Equal Employment Opportunity Commission
    Compliance    Manual   ("EEOC    Manual"),     which    sets    forth   a   "non-
    exhaustive" list of factors to consider: (1) whether the employer
    has the right to control when, where, and how the worker performs
    the job; (2) the level of skill or expertise that the work
    requires; (3) whether the work is performed on the employer's
    premises; (4) whether there is a continuing relationship between
    - 18 -
    the worker and the employer; (5) whether the employer has the right
    to assign additional projects to the worker; (6) whether the
    employer sets the hours of work and the duration of the job; (7)
    whether the worker is paid by the hour, week, or month rather than
    the agreed cost of performing a particular job; (8) whether the
    worker hires and pays assistants; (9) whether the work performed
    by the worker is part of the regular business of the employer;
    (10) whether the employer is in business; (11) whether the worker
    is engaged in his or her own distinct occupation or business; (12)
    whether the employer provides the worker with benefits, such as
    insurance,    leave,   or   worker's   compensation;   (13)   whether   the
    worker is considered an employee of the employer for tax purposes;
    (14) whether the employer can discharge the worker; and (15)
    whether the worker and the employer believe that they are creating
    an employer-employee relationship.        Lopez, 
    588 F.3d at 85
     (quoting
    2 Equal Emp't Opportunity Comm'n, EEOC Compliance Manual, § 2-III,
    at 5716-17 (2008)). While these factors are to be weighed in their
    totality, "in most situations, the extent to which the hiring party
    controls 'the manner and means' by which the worker completes her
    tasks will be the most important factor in the analysis." Alberty-
    Vélez, 
    361 F.3d at
    7 (citing Eisenberg v. Advance Relocation &
    Storage, Inc., 
    237 F.3d 111
    , 114 (2d Cir. 2000)).
    In a thirty-one-page written decision, the magistrate
    judge carefully considered the relevant EEOC Manual factors and
    - 19 -
    concluded that Casey was not an employee of the DHHS.       Our own
    review of these factors dictates the same result.5
    1.   The Right to Control
    Casey focuses principally on the issue of control, and
    she argues that the magistrate judge overlooked evidence that Jesse
    Burk, Casey's immediate supervisor, acted as an agent of the DHHS.
    See Román-Oliveras v. P.R. Elec. Power Auth., 
    655 F.3d 43
    , 51 (1st
    Cir. 2011) (noting that Title VII was intended to ensure respondeat
    superior liability of an employer for the acts of its agents)
    (quoting Mason v. Stallings, 
    82 F.3d 1007
    , 1009 (11th Cir. 1996)).
    To be sure, the record establishes that Burk exercised significant
    control over Casey's performance of her job duties.    For example,
    based on criteria supplied by the FOH Division, Burk developed the
    health and wellness curriculum that Casey was to teach at Hanscom.
    What is more, before her transfer from STG to Millennium, Burk
    completed Casey's performance evaluations and monitored Casey's
    calendar to ensure that Casey was using her time in accordance
    with AFMC and FOH Division requirements.       The record likewise
    establishes that although Burk was an employee of STG (and later,
    of Millennium), she worked closely with, and reported directly to,
    Susan Steinman, a DHHS employee.    Casey relies on this evidence to
    5Although we confine our written decision to the factors
    made most relevant by the record, we have considered each of the
    fifteen factors prescribed by the EEOC Manual.
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    suggest that Burk acted as an agent of the DHHS, and that the DHHS
    therefore exercised actual control over the performance of her job
    duties.
    We do not consider the issue of control in a vacuum.
    Rather, control "must be considered in light of the work performed
    and the industry at issue."        Alberty-Vélez, 
    361 F.3d at 9
    .           Here,
    as we have said, the CHPS Program was created pursuant to an
    interagency agreement between the FOH Division and the AFMC.                The
    FOH   Division     was   responsible   for    recruiting      contractors     to
    administer the CHPS Program.        In 2007, when STG hired Casey, STG
    had been awarded the government contract to perform this function.
    It should thus come as no surprise that the DHHS, as one of the
    two   government    entities     ultimately     responsible    for   the    CHPS
    Program, would exert some measure of control over STG's (and later
    Millennium's) performance.
    However, the measure of control that the DHHS employed
    in    setting      performance     criteria      and   overseeing      Burk's
    administration of the CHPS Program cannot be fairly viewed as
    rendering Burk an agent, or Casey an employee, of the DHHS.                   As
    courts have recognized, every government contract (indeed, most
    every service contract) requires some measure of oversight of the
    contractor by the hiring party.        See, e.g., King v. Dalton, 
    895 F. Supp. 831
    , 838 n.10 (E.D. Va. 1995) ("Presumably, any large
    government contract will be supervised to some extent by the
    - 21 -
    relevant government agency.             Yet, the word 'employee' in [Title
    VII] clearly does not encompass every government contractor.").
    On these facts, we agree with the magistrate judge that the DHHS
    did not exert such control over Casey's performance of her job
    duties as to establish an employment relationship.
    2.    Compensation, Benefits, and Tax Treatment
    Next, the record indisputably establishes that STG - not
    the    DHHS   -    controlled     the   terms     and   conditions        of    Casey's
    employment by setting her salary and providing her with benefits.
    Likewise, it was STG that provided Casey with her annual W-2 form.
    3.    The Right to Discharge
    Casey contends that the DHHS had de facto authority to
    terminate her employment and is therefore properly viewed as her
    employer. We have carefully reviewed the record evidence regarding
    the events of November 14 and 15, 2011, when news of the November
    10 confrontation between Casey and Carpenter came to light.                          In e-
    mail   correspondence        during     this    period,      both   Holl       (an    AFMC
    employee) and Steinman (an FOH Division employee) indicated their
    belief   that      Casey's   employment        should   be    terminated.            Casey
    suggests that this is evidence that the DHHS had the authority to
    order her termination.
    We reject this suggestion.           As an initial matter, while
    Holl   and    Steinman,      as   representatives       of    the   two    government
    agencies responsible for the CHPS Program, no doubt had some
    - 22 -
    measure of influence, there is simply no record support for the
    conclusion that anyone other than STG had the ultimate authority
    to fire Casey.      See Barton v. Clancy, 
    632 F.3d 9
    , 18-19 (1st Cir.
    2011) (finding that the defendant city mayor was not an employer
    of the plaintiff high school athletics coach where, despite his
    "indirect influence," the mayor did not have the ultimate authority
    to fire the coach).
    What is more, we consider the EEOC Manual factors in
    their specific context.      Alberty-Vélez, 
    361 F.3d at 9
    .   Here, it
    appears that Steinman and Holl were concerned because Casey was
    acting unpredictably and was unaccounted for at a secure military
    facility.       While both expressed a belief that Casey's employment
    should be terminated, both seem to have been principally focused
    on locating Casey, having her removed from the base, and revoking
    her security clearance.      Mindful of this unique context, we cannot
    conclude that a government agency is appropriately exposed to Title
    VII liability merely by voicing concerns about safety risks posed
    by an employee of a government contractor.6
    6This is particularly true here, where Casey's
    employment at Hanscom was dependent on her having the appropriate
    security clearance.   The record suggests that STG did not have
    positions available in Massachusetts other than Casey's position
    at Hanscom.    Therefore, once Casey's security clearance was
    revoked, STG seems to have been left with little choice but to
    terminate her employment.
    - 23 -
    4.     The Belief of the Parties
    Finally, we note the undisputed understanding of both
    Casey and the DHHS that Casey was solely an employee of STG.   When
    STG first hired Casey in 2007, the paperwork it provided to her
    described her as a "full-time employee with STG International."
    Then, in 2010, when Casey executed her new employment agreement
    with STG following the subcontract with Millennium, STG provided
    her with a similar set of documents plainly identifying her as an
    STG employee.    On top of that, the subcontract agreement itself
    provided that "[a]ll persons furnished by [STG] . . . shall be
    considered solely [STG]'s employees or agents . . . ."       We can
    identify no record evidence which would permit either party to
    reasonably believe that Casey was an employee of the DHHS.
    5.     The Sum of the Factors
    Viewing the EEOC Manual factors in their totality, we
    concur with the magistrate judge that there is no genuine dispute
    as to any material fact regarding Casey's status as an employee
    solely of STG.   Therefore, the entry of summary judgment in favor
    of the DHHS on Casey's Title VII claim was proper.
    III. Conclusion
    For the reasons we have described, the district judge's
    dismissal of the Bivens claim and the magistrate judge's entry of
    summary judgment on the Title VII claim are both hereby AFFIRMED.
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