## 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, Colora do (Cecilia M. Serna, P.C., Lakewood, Colorado, on the opening brief), fo r Plaintiff-Appellant. David P. Temple, Office of University Counsel, Denv er, Colorado, for The Regents of the University of Colorado, Defendant-Ap pellee. Nina Y. Wang, Assistant United States Attorney (Ric hard 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 d ismiss 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 a gency 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 pr ejudice 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 againstwhom 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. -2- 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 an d 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 te rminated. The district court granted NIST’s motion to dismiss for lack of subjec t matter jurisdiction under Fed. R. Civ. P. 12(b)(1), holding that Ms. Sizova h ad failed to exhaust her administrative remedies. 1 The court granted the University’s motion for sum mary judgment, concluding as a matter of law that the Un iversity 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 Ameri can industry while maintaining its traditional function as lead nation al laboratory for providing the measurements, calibrations, and quality assurance t echniques which underpin United States commerce, technological progress, imp roved product reliability and manufacturing processes, and public safety.” 15 U. S.C. § 271(b)(1). NIST and the University were parties to an agreement establi shing the Professional Research Experience Program (PREP), which awarded r esearch fellowships to graduate and postgraduate students at the University. According to the agreement, the PREP fellows were employees of the U niversity. NIST provided the funding to the University, which in turn paid t he 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 d octoral degree in mechanical engineering from the Academy of Press inMoscow. She worked as a-4-

guest researcher for NIST in 1995 and was awarded aPREP fellowship in August 1996. Ms. Sizova alleged that she was told her fel lowship 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 retu rned to work two weeks later. On or about December 2, 1996, she was told by Dr. C hristopher 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, D r. 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 c ontinued 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 regulatio ns 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-f ive days of the alleged act of discrimination or of the effective date of the chal lenged personnel action. See 29-5-

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 h er motherhood. App. vol. I at 86. The record also contains an affidavit by Ms. S izova 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 terminate d she contacted Robin Wolf, an EEO specialist with the NIST office, informing h er that she wanted to file an informal complaint. Ms. Wolf said she would get ba ck 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. W olf 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 pass ed and directed Ms. Sizova to pursue her administrative remedies as a University employee against the University. It is undisputed that Ms. Sizova filedvirtually identical administrative charges of discrimination with the E EOC against both NIST and the University on May 23, 1997. The charge againstNIST was dismissed on June 11, 1997, by the EEOC on the ground that it was wit hout 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 remedie s and that the court therefore lacked subject matter jurisdiction over the Title V II claim against NIST. The district court held a hearing on the matter and gra nted NIST’s motion. In so doing, the court found that Ms. Sizova was requiredto 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 atNIST and that she had failed to satisfy any of the grounds provided by the appli cable 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 dist rict 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 e rred in failing to properly convert the motion to one for summary judgment for two reasons: the jurisdictional question, if any, was intertwined wi th 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 mot ion without giving notice that-7-

an evidentiary hearing would be held and without al lowing discovery on the matter. We address these contentions in order. When, as here, a party’s Rule 12(b)(1) motion chall enges the facts upon which subject matter jurisdiction depends, “a distr ict 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 ev identiary 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). R eliance 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. Ci v. 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 Healthcar e Corp. , 90 F.3d 1514, 1518 (10th Cir. 1996). We have stated that s ubject matter jurisdiction and the merits are considered to be intertwined “[w]hensubject 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 b een given the procedural2 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 Healthcar e 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 co nverted the motion to one for summary judgment. She bases her argument on the fa ct that NIST moved for dismissal under Title VII, the same statute under w hich she asserts her cause of action. “Under Wheeler , however, the focus of the inquiry is not merely o n whether the merits and the jurisdictional issue ari se 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 no t an aspect of her substantive claim of discrimination. 2 Nonetheless, the fact that NIST’s alleged lack of s ubject matter jurisdiction is not intertwined with the merits of Ms. Sizova’s claim does not resolve her alternative argument that the exhaustion issue in t his 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 admini strative remedies is a3 We noted in Jones v. Runyon that several circuits have relied on Zipes to

hold that exhaustion of administrative remedies und er 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 distinguis h in Jones between a failure to timelyfile an administrative charge, which is not jurisd ictional, and a failure to file an administrative charge at all, which is a ju risdictional 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 indistrict court)). 3 As set out above, the regulations governing discrim ination complaints against federal agencies require an aggrieved perso n to consult with an EEO counselor within forty-five days of the alleged dis crimination. The regulations also provide that this forty-five day limit is to b e 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 individua l shows that he or she was not notified of the time limits and was nototherwise aware of them, that he or she did not know and reasonablyshould not have been[sic] known that the discriminatory matter or p ersonnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contac ting 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 r emedies. -10- 29 C.F.R. § 1614.105(a)(2) (2001) (emphasis added). 4 The regulation thus provides that if the aggrieved person meets the cir cumstances set out therein, either the agency or the Commission mustextend 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 rat her may be tolled in the appropriate circumstances. The meager record before us indicates that Ms. Sizo va did contact a NIST EEO specialist, albeit not within forty-five days o f the alleged discrimination. The outcome of this contact is the subject of a fac tual 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 Uni versity. 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 di rected her to pursue her claim with the University. In any event, Ms. Wolf admitt edly did not inform Ms Sizova that under section 1614.105(a)(2) either the agencyor the Commission could extend the filing time, nor did she accept Ms. Sizo va’s untimely complaint so that5 We point out that an EEO counselor’s refusal to ac cept a charge because

it is untimely precludes the agency and the Commiss ion from ever being in a position to assess whether an aggrieved person is e ntitled to an extension, thus rendering the protection provided by section 1614.1 05(a)(2) illusory. Moreover, the counselor is required to inform the aggrieved p erson of her rights and responsibilities, see id. (b)(1), which presumably would include advising he r that she could seek an extension of the 45-day filing re quirement. -11- those entities would have an opportunity to assess whether an extension would be appropriate. 5 In the end, Ms. Sizova’s EEOC complaint against N IST was dismissed because the EEOC has no jurisdiction overinitial complaints against federal agencies, which must be filed with the agen cies themselves. In the unusual posture of this case, even if we ass ume for purposes of this appeal that the matter is one of subject matter jur isdiction to which the Rule 12(b)(1) procedures apply, as opposed to a non-juri sdictional issue over whether Ms. Sizova’s untimely effort to file a complaint wi th NIST should have been handled differently, we agree with Ms. Sizova that the district court improperly decided the question without allowing limited disco very. “When a defendant moves to dismiss for lack of juri sdiction, either party should be allowed discovery on the factual issues r aised 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 whic h 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 Ban k, 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 omitte d). 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 specia list, who was there as a representative of the government. Neither party ha d requested an evidentiary hearing and the court gave no prior notice that the hearing would be an evidentiary one. Moreover, no discovery had occurr ed 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 d id not receive it until May 6, 1997. Ms. Wolf testified that posters explaining t he need to contact an EEO counselor within forty-five days of the alleged dis crimination were posted at Ms.-13-

Sizova’s place of work. Ms. Sizova and Ms. Wolf pr esented differing versions of the conversations they had when Ms. Sizova attempte d 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. Siz ova 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 courtgranted dismissal upon concluding that the NIST posters provided the requi site notice. The posters which the district court held dispositive stated inlarge 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 YO U have been discriminated against because of age, color, disability (physical or mental), national origin, race, religion, sex (including sexual harassment), and/orreprisal; or need additional information regarding discrimination issues, contac t 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 di rect a NIST employee to contact an EEO counselor within forty-five days, the poster s do not state that the failure6 As we have mentioned, PREP fellows are declared bythe PREP

agreement to be University employees and their salary is paid to them by the University. Moreover, Ms. Wolf, the NIST EEO couns elor, also believed Ms. Sizova was a University employee because she was a PREP fellow. -14- to do so will result in the loss of a claimant’s ab ility 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 evident iary 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 employe es 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 determinati ve; issue is whether poster reasonably geared to give particular claimant notic e of time requirements). “[T]he [45] day statute of limitations is not reaso nable 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 regardi ng the circumstances of Ms. Sizova’s untimely attempt to file an informal c omplaint with Ms. Wolf. Ms. Sizova has raised factual issues concerning whetherMs. Wolf complied with her obligation as an EEO counselor to provide Ms. Sizov a with information on her ability to pursue her discrimination claim, particu larly given the fact that Ms.-15-

Wolf did not accept the complaint, even though unti mely, and thereby allow either the agency or the Commission to consider tolling th e time limit as provided in section 1614.105(a)(1). In this regard, EEO counse lors are required to advise individuals in writing of their rights and responsi bilities, see 29 C.F.R. § 1614.105(b)(1), and, significantly, must not attemp t 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 th e 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 a dditional grounds for arguing that the forty-five day limit should have b een tolled in her case. In sum, given the contested facts relevant to the e xhaustion issue and the need for further factual development of those issue s, we are persuaded the question was decided prematurely. Accordingly, we reverse the judgment granting NIST’s motion to dismiss and remand for fu rther 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 N IST 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 e ntities benefit, and that due to this collaborative environment both entities cooper ate 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 empl oyees and a professor from the University, as well as evidence of other collab orative 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 the re 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, a nd we view the record and the-17-

reasonable inferences to be drawn from it in the li ght 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 fo r 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, wit h reference to whether the work usually is done under the directio n of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the emplo yer or the employee furnishes the equipment used and the place of work; (4) the length of time the individual has worked; (5) the m ethod of payment, whether by time or by job; (6) the manner in which the work relationship is terminated; (7) whether annual leav e is afforded; (8) whether the work is an integral part of the busines s of the employer; (9) whether the worker accumulates retirement benef its; (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 th e 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 te st are typically applied to determine whether the plaintiff is an independent c ontractor 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. 26,7Ms. Sizova contends that notwithstanding the above evidence, a fact issue

exists with respect to the control of her work, poi nting to evidence that she conferred with and co-authored a paper with Profess or Martin Dunn of the University. Although Ms. Sizova stated in her depo sition 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...) -18- 2002) (applying hybrid test to determination of whi ch 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 whi ch Ms. Sizova conducted her work under the fellowship. Ms. Sizova testified bydeposition 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 s he should do. Id. at 294- 95. Dr. Ledbetter stated by affidavit: 4. Ms. Sizova was supervised by NIST employees dur ing the fellowship. No one from the University . . . had a ny 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. Sizo va while she worked at NIST during the PREP fellowship. Stated differently, NIST decided what job duties Ms. Sizova would do an d how she would perform her job duties. 6. NIST employees directed all aspects of Ms. Sizo va’s day-to-day activities while she worked in the NIST Laboratorie s during the PREP fellowship. Id. at 288-89. 77 (...continued)

Dunn stated by affidavit that he had never worked w ith 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 additio n, as set out above, Dr. Ledbetter also stated by affidavit that no one from the Unive rsity had any role in supervising Ms. Sizova during her PREP fellowship. Even if a factual dispute were to exist regarding Professor Dunne’s supervisi on during Ms. Sizova’s fellowship of the paper they wrote, her work with P rofessor Dunn would have been at most an isolated incident of little signifi cance in view of the undisputed evidence demonstrating that her work was otherwise completely supervised and controlled by NIST. -19- In addition to this evidence that NIST controlled a nd supervised Ms. Sizova’s work during her fellowship, other undisput ed evidence relevant to the hybrid test demonstrates that NIST selected the PRE P 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 a greement the University hired PREP fellows as University employees, and paid thei r salary and workers’ compensation insurance. However, we have held unde r 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 e mployed by NIST and the University, pointing out that the award of PREP fel lowships was a collaborative-20-

effort by both entities and that the research condu cted by PREP fellows benefited both. Title VII case law recognizes that two separate ent ities may be a worker’s employer if they share or codetermine matt ers governing the essential terms and conditions of the worker’s empl oyment. When a worker is formally employed by one organization, but important aspects of his work are subject to control by anoth er organization, both organizations are employers of the worker. Anindependent entity with sufficient control over the terms and c onditions of the employment of a worker formally employed by anotheris 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 e ntities may both be a worker’s employer if “they share or co-determi ne those matters governing the essential terms and conditions of employment.” Virgo , 30 F.3d at 1360 (quotation and citation omitted). In this case, the undispute d 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. Sizo va’s argument, the fact that the fellowship program was a collaborative effort b enefiting both NIST and the University does not mandate the inference that bothentities therefore controlled her work given the undisputed evidence the NIST hadsole 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. Sizo va’s employer for purposes of Title VII liability, and the district court therefo re 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.