Casey v. Department of Health & Human Services

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).
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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
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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.
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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.
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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
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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.
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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
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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
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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).
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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.
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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).
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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:
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(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
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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
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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
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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
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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
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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
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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
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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.
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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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