PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES W. CILECEK, M.D.,
Plaintiff-Appellant,

v.

INOVA HEALTH SYSTEM SERVICES;
EMERGENCY PHYSICIANS OF NORTHERN
VIRGINIA, LIMITED; THOM A. MAYER,
M.D., individually and in his
capacities as Chairman of the
Department of Emergency Medicine
of Fairfax Hospital, INOVA Health
                                                               No. 96-1317
System Services and as President of
Emergency Physicians of Northern
Virginia, Limited; JOAN MILES, R.N.,
individually, and in her capacity as
Administrator of Access Emergency
Care of Reston, INOVA Health
System Services,
Defendants-Appellees.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-95-1434-A)

Argued: January 27, 1997

Decided: June 2, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Motz joined. Judge Murnaghan wrote a dissenting
opinion.

_________________________________________________________________

COUNSEL

ARGUED: Lois G. Williams, HOWREY & SIMON, Washington,
D.C., for Appellant. Paul Charles Skelly, HOGAN & HARTSON,
L.L.P., Washington, D.C., for Appellees. ON BRIEF: Moira T. Rob-
erts, HOWREY & SIMON, Washington, D.C., for Appellant. Jona-
than T. Rees, HOGAN & HARTSON, L.L.P., Washington, D.C.;
HOGAN & HARTSON, McLean, Virginia, for Appellees Emergency
Physicians and Mayer; Anthony J. Trenga, Michael L. Zupan,
HAZEL & THOMAS, Alexandria, Virginia, for Appellees Inova
Health System and Miles. C. Gregory Stewart, General Counsel,
Gwendolyn Young Reams, Associate General Counsel, Vincent J.
Blackwood, Assistant General Counsel, Jennifer S. Goldstein,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C.; Deval L. Patrick, Assistant Attorney General, Isabelle
K. Pinzler, Deputy Assistant Attorney General, Dennis J. Dimsey,
Eileen Penner, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Amicus Curiae.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

We must decide in this case whether Dr. James W. Cilecek, a phy-
sician under contract to provide emergency medical services at two
hospitals, was an employee covered by Title VII of the Civil Rights
Act of 1964 or an independent contractor and therefore not so cov-
ered. Based on the undisputed facts about the incidents of the relation-
ship, we conclude as a matter of law that Cilecek was an independent
contractor, and therefore we affirm the summary judgment entered by
the district court in favor of the defendants.

                    2
I

Inova Health System Services, a Virginia corporation, owns and
operates several health care facilities in northern Virginia, including
Fairfax Hospital and ACCESS of Reston. In March 1989, Inova
entered into an exclusive contract with Emergency Physicians of
Northern Virginia, Ltd. ("Emergency Physicians"), under which
Emergency Physicians agreed to staff Fairfax Hospital and ACCESS
of Reston with emergency physicians. At the time, Dr. James W.
Cilecek had worked at those facilities as an emergency physician for
about five years. After Emergency Physicians obtained the contract
with Inova, Cilecek wrote Dr. Thom Mayer, Emergency Physicians'
CEO and owner:

          As discussed, I will work as an independent contractor cov-
          ering an average of 120 hours per month . . . . Compensation
          will be $80/hour and the group will provide liability insur-
          ance with tail coverage. In the event that we decide to
          change our agreement, I will notify you at least 60 days in
          advance and would ask that you provide similar notification.

In August 1991, Cilecek reduced his hours worked for Emergency
Physicians and began working for Mary Washington Hospital in
North Stafford, Virginia, a non-Inova facility. But in December 1992
he returned full time to Emergency Physicians, at which time Emer-
gency Physicians and Cilecek restated a relationship that both
believed was an independent contractor relationship. In summarizing
the resumed relationship, Cilecek wrote Mayer:

           This letter is to confirm our discussion of October 15 in
          which we agreed that I would resume full-time status with
          the Fairfax Emergency Department commencing December
          1, 1992.

* * *

          Total hours will average 130-140 hours/month with no less
          than 100 hours and with increase to 180 hours during peri-
          ods of need. Compensation will be, under Independent Con-

                    3
          tractor status, $90/hour with malpractice being paid by the
          group.

In July 1994, Cilecek wrote the clerk who scheduled Emergency
Physicians' shifts, "I will be reducing my shifts temporarily this fall"
to work on a "large" personal project and to work "a few shifts" at
another medical facility. When Cilecek received the draft schedule for
September and October 1994, he learned that he was being assigned
even fewer shifts than he had wished, and he objected. He wrote a let-
ter stating that despite his request for five to six shifts in September
and six to eight shifts in October on any of eighteen specified dates,
the draft schedule showed him working only five shifts in September
and two in October. Emergency Physicians refused to adjust the
schedule. Instead, it wrote a letter terminating the relationship
between the parties because "it is in the best interest of both parties."
While Emergency Physicians terminated the relationship effective
November 1, 1994, it offered to pay Cilecek through December on the
basis of ten shifts. In response to Emergency Physicians' termination,
Cilecek wrote:

           At this time, there has been no attempt on your behalf to
          restore my shifts in the September-October schedule. Fur-
          ther, I understand you wish for me to sign an agreement of
          termination effective November 1, 1994. Given my recent
          testimony in the legal action, Lowe vs. INOVA, I conclude
          that you are taking retaliatory action against me. Such retali-
          ation is unlawful.

           I do not agree that it is in the best interest of both parties
          to terminate our working agreement.

Cilecek was referring in his letter to testimony that he had given in
a deposition on August 23, 1994, in support of a former employee's
claim against Inova for sexual harassment.

Dr. Cilecek filed this action against both Inova and Emergency
Physicians under Title VII of the Civil Rights Act of 1964, alleging
that he was terminated in retaliation for giving testimony in a former
employee's sexual harassment suit. On the defendants' motion for
summary judgment, the district court concluded that Cilecek was not

                     4
an employee of either Inova or Emergency Physicians, but rather an
independent contractor, and that therefore he was not covered by Title
VII. The court summarized the incidents of the relationship on which
it relied to reach its conclusion as follows:

           There is more in this case than how the taxes are treated.
          This plaintiff asked to be an independent contractor, he con-
          tracted with his employer to be an independent contractor.
          He has testified under oath in another hearing that he was
          an independent contractor. He worked for others at times
          and had the opportunity and the latitude to work for others.
          He was not bound by any noncompetition agreement as
          other similarly situated employees at the Emergency Physi-
          cians. He didn't receive the same benefits. He didn't receive
          the same tax treatment. His duties and his scheduling were
          different than regular employees. He wasn't required to be
          on call. He designated his own shifts. And he was not super-
          vised basically in the providing of care even though he did
          use their equipment.

           I believe simply with these differences in a regular
          employee, that simply the fact that he was paid by them and
          used the equipment that they provide in their facility does
          not make him an employee. And when you add all these up,
          I find that it is clear that he was an independent contractor
          and not covered by the federal Act.

The court dismissed pendent state law claims without prejudice to
their prosecution in state court. This appeal followed.

II

Title VII of the Civil Rights Act prohibits employers from retaliat-
ing against their employees for testifying in support of an employ-
ment discrimination claim. See 42 U.S.C.§ 2000e-3. The Act defines
"employee" as "an individual employed by an employer." 42 U.S.C.
§ 2000e(f). And "employer" is defined as a "person . . . who has fif-
teen or more employees" during a specified period of time. 42 U.S.C.
§ 2000e(b). In adopting this circular definition, Congress has left the
term "employee" essentially undefined insofar as an employee is to

                    5
be distinguished from an independent contractor. The parties to this
case agree that Title VII does not cover an independent contractor.

It now appears to be settled that when Congress uses the term "em-
ployee" in a statute without defining it, the courts will presume that
Congress intended to describe "the conventional master-servant rela-
tionship as understood by common-law agency doctrine." Nationwide
Mut. Ins. Co. v. Darden, 

, 322-23 (1992) (quoting
Community for Creative Non-Violence v. Reid, 

, 739-740
(1989) (addressing rights under the Copyright Act of 1976 to a sculp-
ture "prepared by an employee within the scope of his or her employ-
ment")). Following Reid, the Court in Nationwide adopted the
"common-law test for determining who qualifies as an `employee'
under ERISA." 

And again recently, the Court agreed that
"employee" under Title VII is defined by "traditional principles of
agency law." Walters v. Metropolitan Educ. Enter. Inc., 

, 666 (1997). Because Congress had overruled the Supreme
Court's earlier interpretations of "employee" under both the National
Labor Relations Act and the Social Security Act, in each of which the
Court had defined employee "in light of the mischief to be corrected
and the end to be obtained," see United States v. Silk, 

,
713 (1947), the Court in Reid and Nationwide abandoned that
approach, adopting the presumption that "Congress means an agency
law definition for `employee' unless it clearly indicates otherwise."

.

In order to establish a uniform nationwide application of the terms
"employer," "employee," and "scope of employment" for purpose of
applying federal statutes, Reid instructs that we rely on "the general
common law of agency" and not the law of a particular state. 

(emphasis added). And to determine the general
common law of agency, the Court notes that it has traditionally
looked to sources such as the Restatement of Agency. See 

n.31. Restatement (Second) of Agency § 220(2) provides a nonexhaus-
tive list of factors for consideration when distinguishing employees
from independent contractors. Focusing on these factors and also on
others taken from various cases, the Court in Reid identified the fol-
lowing factors as relevant to the determination of whether the author
of a sculpture was an "employee" or an independent contractor:

                    6
          In determining whether a hired party is an employee under
          the general common law of agency, we consider the hiring
          party's right to control the manner and means by which the
          product is accomplished. Among the other factors relevant
          to this inquiry are the skill required; the source of the instru-
          mentalities and tools; the location of the work; the duration
          of the relationship between the parties; whether the hiring
          party has the right to assign additional projects to the hired
          party; the extent of the hired party's discretion over when
          and how long to work; the method of payment; the hired
          party's role in hiring and paying assistants; whether the
          work is part of the regular business of the hiring party;
          whether the hiring party is in business; the provision of
          employee benefits; and the tax treatment of the hired party.

. The Court cautioned, however, that no one
factor is determinative, and the consideration of factors must relate to
the particular relationship under consideration. See 

; see also
Mangram v. General Motors Corp., 

(4th Cir. 1997)
(applying common law factors in determining whether claimant under
ADEA is employee); Robb v. United States, 

(4th Cir.
1996) (applying common law principles to determine federal question
of whether physician was independent contractor for purposes of
FTCA); cf. Garrett v. Phillips Mills, Inc., 

(4th Cir.
1983) (applying similar 12-factor test to determine whether claimant
under ADEA is an employee); Haavistola v. Community Fire Co. of
Rising Sun, 

(4th Cir. 1993) (applying Garrett factors in
Title VII case).

At root, the distinction at common law between an employee and
an independent contractor rests on the degree of control exercised by
the hiring party. An employer controls the work and its instrumentali-
ties and circumstances to a greater degree than does a hiring party in
an independent contractor relationship. See Restatement (Second) of
Agency §§ 2 & 220(2). But the degree of distinction between the two
is related to the work itself and the industry in which it is performed.
Thus, for example, the ultimate control of doctors performing work
at hospitals results from a competition for control that is inherent in
the duty of each to discharge properly its professional responsibility.
A doctor must have direct control to make decisions for providing

                     7
medical care, but the hospital must assert a degree of conflicting con-
trol over every doctor's work -- whether an employee, an indepen-
dent contractor, or a doctor merely with privileges-- to discharge its
own professional responsibility to patients. See 

-
91 (discussing role of control involving medical judgments). Conse-
quently, it is less productive to debate the control over the discharge
of professional services in the medical context than it might be in
other service relationships. See Alexander v. Rush North Shore Medi-
cal Ctr., 

(7th Cir. 1996) (holding that an anesthesiolo-
gist who was required to be "on call" and whose patients were
assigned to him by the hospital was nonetheless not an employee of
the hospital for purposes of a Title VII action). More enlightening is
the control involved in deciding when a doctor performs his services,
the number of hours he performs them, and the administrative details
incident to his professional services.

With this background in mind, we think it relevant to consider the
following factors in determining whether a doctor, performing emer-
gency room medical services at a hospital, is an employee or an inde-
pendent contractor: (1) the control of when the doctor works, how
many hours he works, and the administrative details incident to his
work; (2) the source of instrumentalities of the doctor's work; (3) the
duration of the relationship between the parties; (4) whether the hiring
party has the right to assign additional work to the doctor or to pre-
clude the doctor from working at other facilities or for competitors;
(5) the method of payment; (6) the doctor's role in hiring and paying
assistants; (7) whether the work is part of the regular business of the
hiring party and how it is customarily discharged; (8) the provision
of pension benefits and other employee benefits; (9) the tax treatment
of the doctor's income; and (10) whether the parties believe they have
created an employment relationship or an independent contractor rela-
tionship. See 

; 

;
Restatement (Second) Agency § 220(2).

With these principles now in hand, we proceed to consider the rela-
tionship between Cilecek and Emergency Physicians.

III

The facts defining the incidents of the contractual relationship
between Cilecek and Emergency Physicians are not materially in dis-

                    8
pute. While their significance to whether an employment relationship
or an independent contractor relationship was created is vigorously
debated, resolution of that debate is a question of law. See, e.g.,
MacMullen v. South Carolina Elect. & Gas Co., 

, 670
(4th Cir. 1963) (whether undisputed facts establish"statutory
employee" status for purposes of workers compensation is question of
law).

When we consider the factors most relevant to the relationship
established between Cilecek and Emergency Physicians in this case,
we conclude that the district court was correct in determining that
Cilecek was an independent contractor. Most significantly: (1) The
parties expressly set out from the beginning to create an independent
contractor relationship, in distinction from the employment relation-
ship that Emergency Physicians had with other doctors; (2) Cilecek
proposed the number of hours he would work during any given month
and the allocation of those hours to various shifts, and the hours that
he worked were not uniform; (3) Cilecek had freedom to do other
work, not only for himself but also for other health care facilities
unrelated to Inova or Emergency Physicians; (4) Cilecek was paid
only for work actually performed and not a uniform salary; (5) Except
for professional liability insurance, Cilecek funded his own pension
and other "employee benefits"; and (6) Both Cilecek and Emergency
Physicians treated his taxes as if Cilecek were an independent con-
tractor, in that Emergency Physicians did not withhold any taxes that
were incident to an employment relationship. In summary, Cilecek
exercised an independence from Emergency Physicians that enabled
him to determine his hours, his income, and who he worked for.
These are core incidents to a work relationship that are inconsistent
with employee status.

While there are factors indicating otherwise, they are not as proba-
tive of the ultimate question of control. Cilecek focuses most heavily
on (1) his obligation, when working for Emergency Physicians, to
comply with detailed hospital regulations in carrying out his services
at Inova hospitals; (2) his use of hospital-supplied instruments, and
(3) the hospitals' ultimate control over the number of hours that he
worked. Cilecek also argues that because Emergency Physicians paid
him an "hourly wage" and unilaterally terminated their work relation-

                    9
ship and because his relationship with Emergency Physicians had
been an enduring one, he was Emergency Physicians' employee.

It is true that Cilecek was required to abide by hospital rules and
regulations for the treatment of patients, which regulated his work at
the hospitals in substantial detail. As Cilecek has summarized those
regulations:

          The rules and regulations governed every aspect of patient
          care, including: taking medical histories; conducting physi-
          cal exams, tests and other procedures; patient progress
          notes; the manner of issuing patient medical orders; prereq-
          uisites and post-requisites to surgical procedures; ordering
          and administration of medications and medical devices;
          obtaining consultations and referrals; and making entries in
          medical records.

All of these regulations, however, relate to the professional standard
for providing health care to patients for which both Emergency Physi-
cians and the Inova hospitals had professional responsibility to their
patients. While Cilecek certainly retained a professional independence
in performing professional services, he also shared a professional
responsibility to cooperate with the hospitals to maintain standards of
patient care, to keep appropriate records, and to follow established
procedures. This shared control exists both for employee doctors and
for doctors merely enjoying practice privileges at a facility. If the hos-
pitals did not insist on such details in the performance of professional
services by doctors at their facilities, they would be exposing them-
selves to recognized professional liability. Because of the overarching
demands of the medical profession, the tension in professional control
between doctors and hospitals for medical services rendered at hospi-
tals is not, we believe, a reliable indicator of whether the doctor is an
employee or an independent contractor at the hospital.

Similarly, that Cilecek used instruments of the hospital emergency
room that were supplied by the hospital is also inherent in the provi-
sion of emergency medical services and likewise is not a reliable indi-
cator of employee status. Whether a doctor specializing in emergency
medicine is an employee of the hospital or simply has privileges at

                     10
the hospital, he must, in almost every case, use emergency room facil-
ities provided by the hospital in order to render his services.

And finally, while Emergency Physicians did ultimately determine
the number of hours that Cilecek would work, that determination was
made only after Cilecek proposed the number of hours he was willing
to work. Moreover, the number of hours announced by the hospital
in each case represented a coordination with the needs of the hospital
in staffing the emergency room. We note that Cilecek did not, by
choice, work the same number of hours each month and that he initi-
ated his own adjustments to those hours. In at least two instances, he
varied his hours in order to work at facilities not owned by Inova.

The additional factors argued by Cilecek do not advance his cause.
Cilecek's pay was negotiated by the parties at an hourly rate to relate
his pay to the time he worked. While employees are often paid
"hourly wages," independent contractors are likewise often paid by
the hour, e.g., plumbers. In this case, Cilecek's hourly rate enabled
payment of fair compensation for fluctuating work and that fact is not
indicative of whether Cilecek was an independent contractor or an
employee. Also, that either party had a right to terminate the relation-
ship is not indicative. The fact that Emergency Physicians, rather than
Cilecek, in fact terminated the relationship does not indicate whether
Cilecek was an employee or independent contractor. And finally, that
the relationship was an enduring one might suggest the regularity
inherent in an employment relationship. But, at various times in this
relationship, Cilecek on his own initiative substantially curtailed his
hours at Inova facilities in order to work at other hospitals, spending
over a year in such an arrangement in the case of Mary Washington
Hospital. His relationship with Emergency Physicians did not restrict
his ability to make these adjustments nor did it prohibit him from
working at unrelated facilities.

It is important to our conclusion in this case that the parties care-
fully designed their relationship to give Cilecek greater freedom than
might otherwise be enjoyed by salaried employees of a hospital, and
to that end they mutually agreed that they wanted to establish an inde-
pendent contractor relationship. See Restatement (Second) Agency
§ 220(2)(i) ("In determining whether one acting for another is a ser-
vant or an independent contractor," the fact of"whether or not the

                    11
parties believe they are creating the relation of master and servant" is
considered); 

("we can not ignore the clear
expression of intent . . . to establish an independent contractor rela-
tionship"). Moreover, the mutual intent to create an independent con-
tractor relationship was confirmed uniformly by the parties in the way
they treated benefits and taxes and in the way they represented their
relationship to third parties.

Considering all the relevant factors, we conclude that Cilecek was
an independent contractor and that, therefore, he is not entitled to sue
either Emergency Physicians or Inova under Title VII of the Civil
Rights Act of 1964 based on their termination of the relationship.

AFFIRMED

MURNAGHAN, Circuit Judge, dissenting:

It is a difficult line to draw between (1) facts which are disputed
and (2) a set of facts outlining what is crystal clear. Here, in granting
summary judgment in the hospital's favor and thereby foreclosing any
resolution by the factfinder of the issue: employee or independent
contractor, the majority has crossed that difficult line and gathered up
for itself resolution of a disputed fact question. The majority relies on
the evidence, which is no doubt strong, in the hospital's favor but
gives no weight to facts favoring Cilecek which are of sufficient sub-
stance to make the issue a disputed one.

I.

During his association with the Inova facilities, Dr. Cilecek consid-
ered himself a house physician on staff, not merely a doctor with priv-
ileges at the two facilities. The Fairfax Hospital Medical Staff Bylaws
and Rules and Regulations require that "[t]he acts performed by the
House Physician shall be at the direction and under the supervision
of the chairman of the clinical department to which the individual has
been assigned." Dr. Cilecek's department chairman was Dr. Thom
Mayer. Defendant Joan Miles served as administrator of ACCESS.
Both Mayer and Miles had the power to enforce Dr. Cilecek's compli-
ance by initiating corrective action against him, including additional

                     12
supervision, suspension, and termination. After the entry of Emer-
gency Physicians of Northern Virginia (EPNV), Dr. Cilecek contin-
ued to work at the Inova hospitals under the same terms and
conditions, except that his paycheck and insurance were provided by
EPNV, instead of Inova.

In August 1991, Dr. Cilecek went to work for another medical
group located in North Stafford, Virginia. In the fall of 1992, how-
ever, EPNV offered Dr. Cilecek more money to work full-time at the
Fairfax Hospital and ACCESS. Dr. Cilecek accepted Dr. Mayer's
offer in a letter agreement in which Dr. Cilecek requested that he be
deemed an independent contractor, and Dr. Mayer agreed. Such an
agreement of the parties cannot overcome the actual facts. Under that
agreement, Dr. Cilecek actually worked an average of 130-140 hours
per month. EPNV paid Dr. Cilecek $90.00/hour and also supplied his
medical malpractice insurance.

II.

The common law standard focuses on the degree of the employer's
control over the individual. Haavistola v. Community Fire Co. of Ris-
ing Sun, Inc., 

, 219-220 (4th Cir. 1993). The "economic
realities" test examines the extent to which the individuals "who as a
matter of economic reality are dependent upon the business to which
they render service." Bartels v. Birmingham , 

, 130
(1947).

The Fourth Circuit follows the hybrid approach, which combines
elements of both the common law and "economic realities" tests. See

; Garrett v. Phillips Mills, Inc., 

, 981 (4th Cir. 1983). Under the hybrid approach, the court's
inquiry must focus on the following factors:

         (1) the kind of occupation, 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 "em-
         ployer" or the individual furnishes the equipment used and
         the place of work; (4) the length of time during which the
         individual has worked; (5) the method of payment, whether

                    13
          by time or by the job; (6) the manner in which the work
          relationship is terminated; i.e., by one or both parties, with
          or without notice and explanation; (7) whether annual leave
          is afforded; (8) whether the work is an integral part of the
          business of the "employer"; (9) whether the worker accumu-
          lates retirement benefits; (10) whether the "employer" pays
          social security taxes; and (11) the intention of the parties.

n.4 (citing 

).

A majority of those factors points to Dr. Cilecik as an employee.
Dr. Cilecek argues that his supervision, setting of his schedule, and
how his duties differed from other doctors were all in genuine dispute.
Dr. Cilecek, and the amicus (the Equal Employment Opportunities
Commission) point out that Dr. Cilecek presented evidence that he
was considered a "house physician" under Inova's Bylaws. Those
Bylaws stated that house physicians work under the"direction and
supervision" of either (1) the director of their clinical department; or
(2) staff physicians for whom work is done. Under either prong, Dr.
Cilecek states that person was Dr. Mayer, who was both the Director
of the Department of Emergency Medicine for Fairfax Hospital and
the staff physician for whom Dr. Cilecek worked.

Moreover, Dr. Cilecek presented evidence that he was required to
work under the supervision of Dr. Mayer, and that Dr. Mayer's super-
vision of him was pervasive. In his affidavit attached to his opposition
to Inova's summary judgment motion, Dr. Cilecek contends that
Inova controlled the way Dr. Cilecek performed his work, including
how he took medical histories, conducted physical exams, tests and
other procedures, made patient progress notes, issued patient medical
orders, handled surgical procedures, ordered and administered medi-
cations and medical devices, obtained consultations and referrals, and
made entries in medical records. Dr. Cilecek also states that Miles,
Inova's administrator, controlled how he performed his work, such as
when to conduct patient physical examinations, and how to handle
prescription pads.

In addition, Dr. Cilecek argues that he presented evidence that
Inova and EPNV set and unilaterally changed his hours, as well as
evidence showing that his duties were the same as the other doctors

                    14
at the hospital. Dr. Cilecek states that he was required to submit a
requested schedule, and his schedule would either be approved as
submitted or altered, thus he was not free to set his own hours. Fur-
thermore, Dr. Cilecek stated in his affidavit that if he wanted to work
fewer hours in a month he obtained the approval of his superior, Dr.
Mayer.

With respect to the same duties issue, Dr. Cilecek contends that the
record shows that Dr. Cilecek was required to submit his requested
schedule for work, the same as other emergency physicians, Inova's
Bylaws required every "house physician" to perform the same duties,
observe the same rules and procedures, operate under the same super-
vision, meet the same performance standards, and answer to the same
disciplinary procedure. Finally, Inova and EPNV provided the work-
place and equipment.

Here, disputes abound over the issues of Dr. Cilecek's supervision
by Mayer and the manner in which Dr. Cilecek's work schedule was
set, for example, whether Dr. Cilecek could himself provide his own
schedule, or whether Mayer could alter the schedule. The choice of
the term "independent contractor" by Cilecek to describe himself,
while the factfinder might pay it attention, was by no means control-
ling. Nationwide Mutual Ins. Co. v. Darden, 

(1992).

In the instant case, the district court granted summary judgment in
favor of EPNV and Inova pre-discovery, that is before these disputed
issues could even be explored. The majority opinion usurps the role
of the factfinder and resolves disputed factual issues in EPNV and
Inova's favor. It appears to me that relevant facts were in dispute,
making summary judgment inappropriate and ill-advised. Conse-
quently, I dissent.

                    15