F I L E D

United States Court of Appeals

Tenth Circuit

MAR 13 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATALIA SIZOVA,

Plaintiff - Appellant,

v.

NATIONAL INSTITUTE OF

STANDARDS & TECHNOLOGY and 

REGENTS OF THE UNIVERSITY OF

COLORADO,

Defendants - Appellees,

No. 00-1494

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 97-D-1964)

Mark E. Rau, The Frickey Law Firm, Lakewood, Colorado (Cecilia M. Serna,

P.C., Lakewood, Colorado, on the opening brief), for Plaintiff-Appellant.

David P. Temple, Office of University Counsel, Denver, Colorado, for The

Regents of the University of Colorado, Defendant-Appellee.

Nina Y. Wang, Assistant United States Attorney (Richard T. Spriggs, United

States Attorney, and Kathleen L. Torres, Asst. U.S. Attorney, with her on the

brief), Denver, Colorado, for National Institute of Standards and Technology,

Defendant-Appellee.
1

 The district court also granted NIST’s motion to dismiss with prejudice on

the ground that it was an improperly named defendant. Under 42 U.S.C § 2000e16(c), a plaintiff in an action against a federal agency is required to name as

defendant the head of the agency, in this case the Secretary of Commerce. On

appeal, NIST wisely concedes that dismissal with prejudice on this ground was

not proper. See Bayer v. U.S. Dep’t of the Treasury, 956 F.2d 330, 334-35 (D.C.

Cir. 1992) (rejecting similar argument and pointing to Fed. R. Civ .P. 15(c), under

which pleading amendment that changes party against whom action is brought

relates back to date of original pleading).

The court also granted NIST’s motion to dismiss Ms. Sizova’s estoppel and

contract claims, finding that they merely restated her Title VII claims. Ms.

Sizova does not appeal this ruling.

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Before SEYMOUR, Circuit Judge, McKAY, Senior Circuit Judge, and

MURPHY, Circuit Judge. 

SEYMOUR, Circuit Judge.

Natalia Sizova brought this action under 42 U.S.C. §§ 2000e et seq. (Title

VII) against the National Institute of Standards and Technology (NIST), a federal

agency, and the University of Colorado. Ms. Sizova had received a fellowship

administered by defendants and alleged that she was the victim of gender and

pregnancy discrimination when the fellowship was terminated. The district court

granted NIST’s motion to dismiss for lack of subject matter jurisdiction under

Fed. R. Civ. P. 12(b)(1), holding that Ms. Sizova had failed to exhaust her

administrative remedies.1

 The court granted the University’s motion for summary

judgment, concluding as a matter of law that the University was not Ms. Sizova’s
-3-

employer for purposes of liability under Title VII. Ms. Sizova appeals. We

affirm in part, reverse in part, and remand for further proceedings.

I

NIST is a bureau of the United States Department of Commerce whose

purpose is to “enhance the competitiveness of American industry while

maintaining its traditional function as lead national laboratory for providing the

measurements, calibrations, and quality assurance techniques which underpin

United States commerce, technological progress, improved product reliability and

manufacturing processes, and public safety.” 15 U.S.C. § 271(b)(1). NIST and

the University were parties to an agreement establishing the Professional

Research Experience Program (PREP), which awarded research fellowships to

graduate and postgraduate students at the University. According to the

agreement, the PREP fellows were employees of the University. NIST provided

the funding to the University, which in turn paid the PREP fellows and provided

their worker’s compensation insurance. However, Ms. Sizova’s work while a

PREP fellow was performed at the NIST facility and her work was supervised by

NIST employees.

Ms. Sizova is a native of Russia and received her doctoral degree in

mechanical engineering from the Academy of Press in Moscow. She worked as a
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guest researcher for NIST in 1995 and was awarded a PREP fellowship in August

1996. Ms. Sizova alleged that she was told her fellowship would last for three

years in the form of three one-year contracts. At the time she was awarded the

fellowship, she was pregnant with her second child and informed defendants of

that fact. Ms. Sizova began working at NIST under her fellowship in September,

1996, gave birth to her child in November, and returned to work two weeks later. 

On or about December 2, 1996, she was told by Dr. Christopher Fortunko of

NIST, one of the scientists with whom she worked, that her fellowship would be

terminated at the end of the month due to a lack of funds. Two days later she was

allegedly told by the chief of her NIST division, Dr. Harry McHenry, that she was

being terminated because he thought she would “not be productive having a

baby.” App. vol. I at 86. Although Ms. Sizova was only paid by the University

for her work at NIST until December 31, 1996, she continued to work on an

unpaid basis for a number of weeks thereafter.

Ms. Sizova’s efforts to exhaust her administrative remedies are the subject

of some dispute between the parties. The regulations governing complaints of

employment discrimination against federal agencies require that prior to filing a

formal complaint, an aggrieved person must file an informal complaint with the

EEO counselor of the employer agency within forty-five days of the alleged act of

discrimination or of the effective date of the challenged personnel action. See 29
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C.F.R. § 1614.105(a)(1) (2001). Ms. Sizova sent a letter to Dr. McHenry dated

December 9, 1996, expressing her dismay over their previous conversation and his

belief that her productivity would be affected by her motherhood. App. vol. I at

86. The record also contains an affidavit by Ms. Sizova in which she recounted

her attempt to file an informal complaint. Id. at 89-90. She stated that on an

unspecified date after her employment was terminated she contacted Robin Wolf,

an EEO specialist with the NIST office, informing her that she wanted to file an

informal complaint. Ms. Wolf said she would get back to Ms. Sizova. After Ms.

Wolf spoke with her supervisor, she allegedly told Ms. Sizova she could not file

an informal EEO complaint with NIST because she was a post-doctoral fellow. 

At a subsequent evidentiary hearing, although Ms. Wolf denied refusing outright

to accept the complaint, she testified she told Ms. Sizova the forty-five day period

for filing an informal complaint with NIST had passed and directed Ms. Sizova to

pursue her administrative remedies as a University employee against the

University. It is undisputed that Ms. Sizova filed virtually identical

administrative charges of discrimination with the EEOC against both NIST and

the University on May 23, 1997. The charge against NIST was dismissed on June

11, 1997, by the EEOC on the ground that it was without jurisdiction over a claim

against a federal agency. 
-6-

II

NIST moved for dismissal under Fed. R. Civ. P. 12(b)(1), alleging that Ms.

Sizova failed to exhaust her administrative remedies and that the court therefore

lacked subject matter jurisdiction over the Title VII claim against NIST. The

district court held a hearing on the matter and granted NIST’s motion. In so

doing, the court found that Ms. Sizova was required to contact an EEO counselor

within forty-five days of February 10, 1997, or by March 27, 1997. The court

found that Ms. Sizova had been notified of the forty-five day limit by posters

prominently displayed in her place of employment at NIST and that she had failed

to satisfy any of the grounds provided by the applicable regulation for extending

this time limit. On appeal, Ms. Sizova challenges the procedure used by the

district court, and the court’s conclusion that the posters gave her notice under the

circumstances.

We turn first to the procedure employed by the district court. Ms. Sizova

makes several challenges to the manner in which the district court dealt with

NIST’s motion to dismiss. She contends the court erred in failing to properly

convert the motion to one for summary judgment for two reasons: the

jurisdictional question, if any, was intertwined with the merits of her claim; and

the exhaustion issue did not present a question of subject matter jurisdiction. She

also maintains the court erred in ruling on the motion without giving notice that
-7-

an evidentiary hearing would be held and without allowing discovery on the

matter. We address these contentions in order. 

When, as here, a party’s Rule 12(b)(1) motion challenges the facts upon

which subject matter jurisdiction depends, “a district court may not presume the

truthfulness of the complaint’s factual allegations. A court has wide discretion to

allow affidavits, other documents, and a limited evidentiary hearing to resolve

disputed jurisdictional facts under Rule 12(b)(1).” Holt v. United States, 46 F.3d

1000, 1003 (10th Cir. 1995) (citations omitted). Reliance on evidence outside the

pleadings in addressing such a motion does not, as a general rule, convert the

motion to one for summary judgment under Fed. R. Civ. P. 56. Id. We have

recognized an exception to this general rule, where “the jurisdictional question is

intertwined with the merits of the case.” Wheeler v. Hurdman, 825 F.2d 257, 259

(10th Cir. 1987); see also Pringle v. United States, 208 F.3d 1220, 1223 (10th

Cir. 2000); United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d

1514, 1518 (10th Cir. 1996). We have stated that subject matter jurisdiction and

the merits are considered to be intertwined “[w]hen subject matter jurisdiction is

dependent upon the same statute which provides the substantive claim in the

case.” Wheeler, 825 F.2d at 259; see also Pringle, 208 F.3d at 1223.

Ms. Sizova argues that subject matter jurisdiction and the merits are

intertwined in this case and that she should have been given the procedural
2

 We have held, for example, that substantive claims and jurisdictional

issues are intertwined in cases addressing whether a plaintiff was an employee

under Title VII, see Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987),

whether the information at issue in a qui tam case was publicly disclosed, see

United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518

(10th Cir. 1996), and whether the Feres doctrine applies in a suit under the

Federal Tort Claims Act, see Pringle v. United States, 208 F.3d 1220, 1222-23

(10th Cir. 2000).

-8-

protections of Rule 56 before the district court converted the motion to one for

summary judgment. She bases her argument on the fact that NIST moved for

dismissal under Title VII, the same statute under which she asserts her cause of

action. “Under Wheeler, however, the focus of the inquiry is not merely on

whether the merits and the jurisdictional issue arise under the same statute. 

Rather, the underlying issue is whether resolution of the jurisdictional question

requires resolution of an aspect of the substantive claim.” Pringle, 208 F.3d at

1223. Here, the jurisdictional issue is whether Ms. Sizova has exhausted her

administrative remedies, a matter that is simply not an aspect of her substantive

claim of discrimination.2

Nonetheless, the fact that NIST’s alleged lack of subject matter jurisdiction

is not intertwined with the merits of Ms. Sizova’s claim does not resolve her

alternative argument that the exhaustion issue in this case simply does not present

a question of subject matter jurisdiction at all. This is not an uncomplicated

matter. We have held that the exhaustion of administrative remedies is a
3

 We noted in Jones v. Runyon that several circuits have relied on Zipes to

hold that exhaustion of administrative remedies under Title VII is not

jurisdictional at all, 91 F.3d 1398, 1399 n.1 (10th Cir. 1996), but that our circuit

holds to the contrary, id.

-9-

jurisdictional prerequisite to suit under Title VII. See, e.g., Woodman v. Runyon,

132 F.3d 1330, 1341 (10th Cir. 1997); Jones v. Runyon, 91 F.3d 1398, 1399 (10th

Cir. 1996). However, we were careful to distinguish in Jones between a failure to

timely file an administrative charge, which is not jurisdictional, and a failure to

file an administrative charge at all, which is a jurisdictional bar. See Jones, 91

F.3d at 1399 n.1 (citing Zipes v. TWA, Inc., 455 U.S. 385 (1982) (timely filing

before EEOC not jurisdictionally required to sue in district court)).3

 

As set out above, the regulations governing discrimination complaints

against federal agencies require an aggrieved person to consult with an EEO

counselor within forty-five days of the alleged discrimination. The regulations

also provide that this forty-five day limit is to be extended under certain

circumstances.

The agency or the Commission shall extend the 45-day time limit in

paragraph (a)(1) of this section when the individual shows that he or

she was not notified of the time limits and was not otherwise aware

of them, that he or she did not know and reasonably should not have

been[sic] known that the discriminatory matter or personnel action

occurred, that despite due diligence he or she was prevented by

circumstances beyond his or her control from contacting the

counselor within the time limits, or for other reasons considered

sufficient by the agency or the Commission.
4

 This section has not been revised since 1997, the year in which Ms.

Sizova was required to exhaust her administrative remedies.

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29 C.F.R. § 1614.105(a)(2) (2001) (emphasis added).4

 The regulation thus

provides that if the aggrieved person meets the circumstances set out therein,

either the agency or the Commission must extend the time limit, and vests both

the agency and the Commission with discretion to extend the limit for reasons

other than those contained in the regulation itself. In keeping with our holding in

Jones, the regulation clearly indicates that compliance with the forty-five day

time limit is not a matter of jurisdiction, but rather may be tolled in the

appropriate circumstances.

The meager record before us indicates that Ms. Sizova did contact a NIST

EEO specialist, albeit not within forty-five days of the alleged discrimination. 

The outcome of this contact is the subject of a factual dispute. Ms. Sizova

asserted in her affidavit that Ms. Wolf refused to accept her informal complaint

because she was a post-doctoral fellow with the University. Ms. Wolf testified

that while she did not refuse to take Ms. Sizova’s complaint, she told her the

forty-five day limit for doing so had passed and directed her to pursue her claim

with the University. In any event, Ms. Wolf admittedly did not inform Ms Sizova

that under section 1614.105(a)(2) either the agency or the Commission could

extend the filing time, nor did she accept Ms. Sizova’s untimely complaint so that
5

 We point out that an EEO counselor’s refusal to accept a charge because

it is untimely precludes the agency and the Commission from ever being in a

position to assess whether an aggrieved person is entitled to an extension, thus

rendering the protection provided by section 1614.105(a)(2) illusory. Moreover,

the counselor is required to inform the aggrieved person of her rights and

responsibilities, see id. (b)(1), which presumably would include advising her that

she could seek an extension of the 45-day filing requirement.

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those entities would have an opportunity to assess whether an extension would be

appropriate.5

 In the end, Ms. Sizova’s EEOC complaint against NIST was

dismissed because the EEOC has no jurisdiction over initial complaints against

federal agencies, which must be filed with the agencies themselves. 

In the unusual posture of this case, even if we assume for purposes of this

appeal that the matter is one of subject matter jurisdiction to which the Rule

12(b)(1) procedures apply, as opposed to a non-jurisdictional issue over whether

Ms. Sizova’s untimely effort to file a complaint with NIST should have been

handled differently, we agree with Ms. Sizova that the district court improperly

decided the question without allowing limited discovery.

“When a defendant moves to dismiss for lack of jurisdiction, either party

should be allowed discovery on the factual issues raised by that motion.” Budde

v. Ling-Temco-Vought, Inc., 511 F2d. 1033, 1035 (10th Cir. 1975). Although a

district court has discretion in the manner by which it resolves an issue of subject

matter jurisdiction under Rule 12(b)(1), see Holt, 46 F.3d at 1003, a refusal to

grant discovery constitutes an abuse of discretion if the denial results in prejudice
-12-

to a litigant, see First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172,

176-77 (2d Cir. 1998); Filus v. Lot Polish Airlines, 907 F.2d 1328, 1332 (2d Cir.

1990); Majd-Pour v. Georgiana Cmty. Hosp., Inc, 724 F.2d 901, 903 (11th Cir.

1984); Canavan v. Beneficial Fin. Corp., 553 F.2d 860, 865 (3d Cir. 1977). 

Prejudice is present where “pertinent facts bearing on the question of jurisdiction

are controverted . . . or where a more satisfactory showing of the facts is

necessary.” Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430

n.24 (9th Cir. 1977) (quotation and citation omitted).

The district court held a hearing on the motion to dismiss at which the court

considered some evidentiary material and asked sua sponte for limited testimony

from Ms. Sizova and Robin Wolf, the NIST EEO specialist, who was there as a

representative of the government. Neither party had requested an evidentiary

hearing and the court gave no prior notice that the hearing would be an

evidentiary one. Moreover, no discovery had occurred at that point. Ms. Sizova

contended at the hearing that NIST had never given her notice of her rights or

told her that she was a NIST employee. App. vol. I at 171, 176, 189. She also

stated that she repeatedly requested written notice of the termination of her

fellowship from both NIST and the University, and did not receive it until May 6,

1997. Ms. Wolf testified that posters explaining the need to contact an EEO

counselor within forty-five days of the alleged discrimination were posted at Ms.
-13-

Sizova’s place of work. Ms. Sizova and Ms. Wolf presented differing versions of

the conversations they had when Ms. Sizova attempted to begin the administrative

process by filing an untimely informal complaint.

The district court decided the matter by concluding that Ms. Sizova was

required to contact a NIST EEO counselor within forty-five days of February 10,

1997, and that under section 1614.105(a)(1) Ms. Sizova was entitled to an

extension of this period only if she showed she was not given notice of the time

limit and was not otherwise aware of it. The court granted dismissal upon

concluding that the NIST posters provided the requisite notice. The posters

which the district court held dispositive stated in large block letters: “IF YOU

FEEL YOU HAVE BEEN DISCRIMINATED AGAINST ON THE JOB,

CONTACT A NIST EEO COUNSELOR.” App. vol. I at 241 (emphasis added). 

The poster stated in smaller print: “IF YOU FEEL YOU have been discriminated

against because of age, color, disability (physical or mental), national origin, race,

religion, sex (including sexual harassment), and/or reprisal; or need additional

information regarding discrimination issues, contact an EEO counselor within 45

days of the alleged act of discrimination.” Id. 

For several reasons, we disagree with the district court that these posters

resolve the exhaustion issue. While the posters direct a NIST employee to contact

an EEO counselor within forty-five days, the posters do not state that the failure
6

 As we have mentioned, PREP fellows are declared by the PREP

agreement to be University employees and their salary is paid to them by the

University. Moreover, Ms. Wolf, the NIST EEO counselor, also believed Ms.

Sizova was a University employee because she was a PREP fellow.

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to do so will result in the loss of a claimant’s ability to pursue relief. Moreover,

the posters are directed to persons “on the job;” they do not mention holders of

fellowships. Ms. Sizova asserts, with some evidentiary support, that she believed

herself to be an employee of the University.6 Accordingly, it cannot be held as a

matter of law that posters directed to NIST employees gave Ms. Sizova, a PREP

fellow, the requisite notice. See Johnson v. Runyon, 47 F.3d 911, 917-919 (7th

Cir. 1995) (mere posting of notices not determinative; issue is whether poster

reasonably geared to give particular claimant notice of time requirements). 

“[T]he [45] day statute of limitations is not reasonable if agencies and courts do

not liberally construe the [(a)(2)] exceptions.” Id. at 917 (alterations in original)

(citation and quotation omitted); see also Pauling v. Sec’y of the Dep’t of the

Interior, 160 F.3d 133, 137 (2d Cir. 1998).

We are also troubled by the factual dispute regarding the circumstances of

Ms. Sizova’s untimely attempt to file an informal complaint with Ms. Wolf. Ms.

Sizova has raised factual issues concerning whether Ms. Wolf complied with her

obligation as an EEO counselor to provide Ms. Sizova with information on her

ability to pursue her discrimination claim, particularly given the fact that Ms.
-15-

Wolf did not accept the complaint, even though untimely, and thereby allow either

the agency or the Commission to consider tolling the time limit as provided in

section 1614.105(a)(1). In this regard, EEO counselors are required to advise

individuals in writing of their rights and responsibilities, see 29 C.F.R. §

1614.105(b)(1), and, significantly, must not attempt in any way to restrain an

aggrieved party from filing a complaint, id. § 1614.105(g). 

In addition, in objecting to the lack of discovery, Ms. Sizova’s counsel

pointed out the relevancy of evidence concerning the way the NIST EEO

counselors treated PREP fellows and of any notes Ms. Wolf may have taken of the

conversations she had with Ms. Sizova. In light of the factual disputes, further

factual development might provide Ms. Sizova with additional grounds for

arguing that the forty-five day limit should have been tolled in her case.

In sum, given the contested facts relevant to the exhaustion issue and the

need for further factual development of those issues, we are persuaded the

question was decided prematurely. Accordingly, we reverse the judgment

granting NIST’s motion to dismiss and remand for further proceedings in light of

this opinion.
-16-

III

The district court granted the University’s motion for summary judgment, 

concluding that Ms. Sizova was employed solely by NIST and rejecting her

arguments that she was either a University employee or jointly employed by both

NIST and the University. On appeal, Ms. Sizova contends that NIST and the

University conduct joint research from which both entities benefit, and that due to

this collaborative environment both entities cooperate in controlling the research

they perform together. In support of her argument, Ms. Sizova points to evidence

that she co-authored an article with both NIST employees and a professor from

the University, as well as evidence of other collaborative research efforts between

NIST and the University.

“We review the grant of summary judgment de novo, applying the same

standard as did the district court.” Goodwin v. General Motors Corp., 275 F.3d

1005, 1007 (10th Cir. 2002). Summary judgment is appropriate only “‘if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of

law.’” Id. (quoting Fed. R. Civ. P. 56(c)). The movant bears the burden of

establishing the lack of disputed material facts, and we view the record and the
-17-

reasonable inferences to be drawn from it in the light most favorable to the

nonmoving party. Id.

The district court here properly applied the hybrid test in determining

whether the University was Ms. Sizova’s employer for purposes of Title VII. See

Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1028 (10th Cir. 1996).

Under the hybrid test, the main focus of the court’s inquiry is the

employer’s right to control the “means and manner” of the worker’s

performance. However, the hybrid test also looks at other factors,

including: (1) the kind of occupation at issue, with reference to

whether the work usually is done under the direction of a supervisor

or is done by a specialist without supervision; (2) the skill required

in the particular occupation; (3) whether the employer or the

employee furnishes the equipment used and the place of work; (4) the

length of time the individual has worked; (5) the method of payment,

whether by time or by job; (6) the manner in which the work

relationship is terminated; (7) whether annual leave is afforded; (8)

whether the work is an integral part of the business of the employer;

(9) whether the worker accumulates retirement benefits; (10) whether

the employer pays social security taxes; and (11) the intention of the

parties. No single factor is conclusive. Rather, the courts are to look

at the totality of the circumstances surrounding the working

relationship between the parties.

Id. (quoting Oestmen v. Nat’l Farmers Union Ins. Co., 958 F.2d 303, 305 (10th

Cir. 1992)). Although the factors in the hybrid test are typically applied to

determine whether the plaintiff is an independent contractor or an employee, see

id. at 1028 n.1, in this case as in Lambertsen, we apply the test “to determine

which of two entities was plaintiff’s employer,” id.; see also Bristol v. Bd. of

County Comm’rs, F.3d , No. 00-1053 at 31-32 (10th Cir. filed Feb. 26,
7

 Ms. Sizova contends that notwithstanding the above evidence, a fact issue

exists with respect to the control of her work, pointing to evidence that she

conferred with and co-authored a paper with Professor Martin Dunn of the

University. Although Ms. Sizova stated in her deposition that she had worked

with Professor Dunn and wrote a paper with him, she could not remember whether

this had occurred during her PREP fellowship or at an earlier date. Professor

(continued...)

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2002) (applying hybrid test to determination of which of two entities was

employer). 

We begin by reviewing the evidence relevant to the central focus of the

hybrid test: control of the means and manner by which Ms. Sizova conducted her

work under the fellowship. Ms. Sizova testified by deposition that her work was

supervised by two NIST employees, Dr. Fortunko and Dr. Ledbetter, see app. vol.

II at 292, and by no one else, id. at 293. She stated that those supervisors, along

with her NIST coworkers, communicated to her what she should do. Id. at 294-

95. Dr. Ledbetter stated by affidavit:

4. Ms. Sizova was supervised by NIST employees during the

fellowship. No one from the University . . . had any role in her

supervision while working at NIST laboratories.

5. NIST supervisors made all decisions regarding the nature and

scope of the job duties to be performed by Ms. Sizova while she

worked at NIST during the PREP fellowship. Stated differently,

NIST decided what job duties Ms. Sizova would do and how she

would perform her job duties.

6. NIST employees directed all aspects of Ms. Sizova’s day-to-day

activities while she worked in the NIST Laboratories during the

PREP fellowship.

Id. at 288-89.7

 
7

(...continued)

Dunn stated by affidavit that he had never worked with Ms. Sizova during her

PREP fellowship period, and did not supervise, control or direct any of her work

during that time. App. vol. II at 443. In addition, as set out above, Dr. Ledbetter

also stated by affidavit that no one from the University had any role in

supervising Ms. Sizova during her PREP fellowship. Even if a factual dispute

were to exist regarding Professor Dunne’s supervision during Ms. Sizova’s

fellowship of the paper they wrote, her work with Professor Dunn would have

been at most an isolated incident of little significance in view of the undisputed

evidence demonstrating that her work was otherwise completely supervised and

controlled by NIST.

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In addition to this evidence that NIST controlled and supervised Ms.

Sizova’s work during her fellowship, other undisputed evidence relevant to the

hybrid test demonstrates that NIST selected the PREP fellows from among the

candidates recommended by the University, and that NIST alone had the authority

to terminate a fellowship. Ms. Sizova argues that these factors are nonetheless

not controlling, pointing out that under the PREP agreement the University hired

PREP fellows as University employees, and paid their salary and workers’

compensation insurance. However, we have held under virtually identical

circumstances that such evidence is not dispositive when balanced against the

indicia of supervision and control present here. See Atchley v. Nordam Group,

Inc., 180 F.3d 1143, 1153 (10th Cir. 1999).

Ms. Sizova also contends she was at least jointly employed by NIST and the

University, pointing out that the award of PREP fellowships was a collaborative
-20-

effort by both entities and that the research conducted by PREP fellows benefited

both. 

Title VII case law recognizes that two separate entities may be a

worker’s employer if they share or codetermine matters governing the

essential terms and conditions of the worker’s employment. When a

worker is formally employed by one organization, but important

aspects of his work are subject to control by another organization,

both organizations are employers of the worker. An independent

entity with sufficient control over the terms and conditions of the

employment of a worker formally employed by another is a joint

employer within the scope of Title VII.

Zinn v. McKune, 143 F.3d 1353, 1361 (10th Cir. 1998) (Briscoe, J., concurring)

(citing Graves v. Lowery, 117 F.3d 723, 727 (3d Cir. 1997); Virgo v. Riviera

Beach Assocs., 30 F.3d 1350, 1360 (11th Cir. 1994)). Thus two entities may both

be a worker’s employer if “they share or co-determine those matters governing the

essential terms and conditions of employment.” Virgo, 30 F.3d at 1360 (quotation

and citation omitted). In this case, the undisputed evidence indicates that NIST

alone selected those applicants to be awarded PREP fellows, only NIST had the

authority to terminate a PREP fellowship, and only NIST supervised and

controlled Ms. Sizova’s work. Contrary to Ms. Sizova’s argument, the fact that

the fellowship program was a collaborative effort benefiting both NIST and the

University does not mandate the inference that both entities therefore controlled

her work given the undisputed evidence the NIST had sole control over the

essential terms and conditions of her employment. In sum, we agree with the
-21-

district court that the University was not Ms. Sizova’s employer for purposes of

Title VII liability, and the district court therefore properly granted summary

judgment for the University. 

The judgment of the district court is AFFIRMED in part, REVERSED in

part, and REMANDED for further proceedings in light of this opinion.