This is an appeal from the District Court's order (1) granting appellee's motion to dismiss the complaint for lack of jurisdiction over the subject matter, and (2) denying appellant's cross-motion for partial summary judgment. Both turn on the issue of whether appellant was an employee within the meaning of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (the Act). 42 U.S.C. § 2000e-16 (Supp. II 1972). Because we find that the nature of appellant's employment status requires further evidentiary exploration, we vacate the grant of the motion to dismiss, leave undisturbed in the present state of the record the denial of the cross-motion for summary judgment, and remand the case for further proceedings consistent herewith.

* From September, 1968 to November 29, 1974, appellant Spirides worked intermittently in the District of Columbia as a foreign language broadcaster for the Greek Service, a division of the Voice of America (VOA).1 Excepting the periods from (i) 1968 to 1969, (ii) October, 1970 through October, 1971, and (iii) October, 1974 through November 29, 1974,2 she worked pursuant to Purchase Order Vendor (POV) contracts which indicated, Inter alia, ". . . that the Contractor (Spirides) shall perform such services as an independent contractor, and not as an employee of the (United States International Communication) Agency."3 Under these renewable yearly contracts, she was paid per assignment, which included four consecutive hours of rehearsals and performances as a mistress of ceremonies of the Greek Service's radio program.

In June, 1974, with the addition of two female foreign nationals to the employee staff of the Greek Service, the Chief of the Service informed Spirides he could no longer justify the expenditure of POV funds for a female voice. Therefore, her contract was not to be renewed after its September, 1974 expiration.

Claiming that this action resulted from sex discrimination, appellant filed a formal complaint with the Equal Employment Opportunity Office (EEOO) of USICA in October, 1974. The following month, without an investigation, EEOO issued a final decision finding no discrimination. Spirides then appealed to the Appeals Review Board of the Civil Service Commission (CSC), which found that USICA had violated civil service regulations by failing to investigate appellant's allegations, See 5 C.F.R. § 713.216 (1978), and remanded the case to USICA for further proceedings.

When EEOO again found no evidence of sex discrimination, appellant requested and received a hearing by an EEOO Complaints Examiner. His finding of sex discrimination and consequent recommendation of back pay and reinstatement were rejected by USICA in January, 1976, principally because Spirides was found to be a contractor instead of an employee. As such, she was determined to be ineligible for retroactive back pay and reinstatement under the Act.

A second appeal to the Appeals Review Board confirmed USICA's decision. The Board found that, because (1) Spirides was not a "federal employee" within the meaning of 5 U.S.C. § 2105(a) (1970),4 (2) agency officials did not consider her an employee, and (3) her employment contract described her as an independent contractor instead of an employee, she was precluded from seeking redress under the Act or its regulations. See 5 C.F.R. § 713.212 (1978).

Her administrative remedies exhausted, Spirides timely filed a complaint in the District Court alleging unlawful termination of her employment by reason of her sex.5 She claimed jurisdiction under the Act, and sought declaratory relief, retroactive and prospective injunctions, and damages.6 USICA filed a motion to dismiss the complaint for lack of subject matter jurisdiction, on the ground that Spirides was not an employee under the Act and hence not protected by its provisions. Spirides opposed this motion, and moved for partial summary judgment on the issue of her status as an employee under the Act. Relying only on these motions and responses, together with affidavits in support of the summary judgment motion, the District Court found that Spirides was at all times under contract as a Purchase Order Vendor,7 and thus was an independent contractor and not an employee. It therefore denied the partial summary judgment motion and granted the motion to dismiss the complaint. This appeal challenges both actions.

For several years after its enactment, Title VII of the Civil Rights Act of 1964 proscribed only nonfederal employment discrimination.8 Congress became increasingly concerned, however, about the apparent inability of federal employees to obtain judicial review of employment discrimination cases.9 Thus, in 1972, Title VII was amended by the Equal Employment Opportunity Act to forbid discrimination by federal government employers,10 and to permit federal employees to sue those employers in discrimination cases.

Congress emphasized repeatedly that those covered by the 1972 amendments must be "employees," or individuals "employed by an employer." Id. § 2000e(f). For example, the Act states:

All personnel actions affecting Employees or Applicants for employment . . . in executive agencies shall be made free from any discrimination based on . . . sex.

Id. § 2000e-16(a) (emphasis added). In addition, within a certain period of time after filing an initial charge with an agency, department, or unit, or after action by an agency or by the Civil Service Commission,

. . . an Employee or Applicant for employment if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action . . .

This statutory language supports the conclusion that the 1972 amendments to Title VII cover only those individuals in a direct employment relationship with a government employer.12 Individuals who are independent contractors or those not directly employed by such an employer are unprotected.13 Status as an employee is therefore of crucial significance for those seeking to redress alleged discriminatory actions in federal employment.

That the Greek Service in the present case is an employer is clear, because it is an "executive agency"14 engaged in the "governmental activity" of broadcasting radio programs overseas. See 42 U.S.C. § 2000e(h). Whether appellant is an employee, or "individual employed by an employer," however, is more difficult to determine, because the Act does not clearly compel consideration of any particular set of factors, nor does it describe precisely the elements of the employment relationship that must exist to trigger equal employment coverage in the public sector.

B. Determination of Employee Status Under Title VII

Appellee argues, and the Civil Service Commission agrees,15 that the test for employee status should be controlled by the statutory definition of the term in the Civil Service Commission's authorizing legislation.16 This definition of "employee" is found in 5 U.S.C. § 2105(a) (1970), which states in pertinent part:

(a) For the purpose of This title, "employee", except as otherwise provided by this section or when specifically modified, means an officer and an individual who is

(1) appointed in the civil service by one of the following acting in an official capacity

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) the adjutants general designated by the Secretary concerned under section 709(c) of title 32, United States Code;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

(Emphasis added).

Appellee points out, correctly to be sure, that appellant has not been "appointed to the civil service." Therefore, appellee argues that appellant cannot be considered an employee for purposes of the instant case. We disagree.

Examining the plain language of the Civil Service statute, we find that the definition of "employee" applies only to "this title," I. e., Title V, which creates the Civil Service Commission. As this court has duly noted in the case of Lodge 1858 v. Webb,17 an individual must satisfy all subsections of 5 U.S.C. § 1205(a) "to be deemed an employee Within the meaning of the Civil Service laws."18

In this case, however, the issue to be decided is not whether Spirides is an employee under the civil service laws, but whether she may in any respect be deemed an employee under Title VII as amended. Therefore, resort to the civil service definition is unwarranted, and whether or not Spirides may be deemed an employee cannot be determined merely by noting the absence of her "appointment to the civil service." Furthermore, because the Act is remedial in character, it should be liberally construed,19 and ambiguities should be resolved in favor of the complaining party.20 Use of the restrictive civil service definition here would not effectuate the broad remedial purposes of the Act,21 and would therefore be inappropriate.

Rather, determination of whether an individual is an employee or an independent contractor for purposes of the Act involves, as appellant suggests, analysis of the "economic realities" of the work relationship.22 This test calls for application of general principles of the law of agency to undisputed or established facts.23 Consideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative.24 Nevertheless, the extent of the employer's right to control the "means and manner" of the worker's performance is the most important factor to review here,25 as it is at common law26 and in the context of several other federal statutes.27 If an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist.28

Additional matters of fact that an agency or reviewing court must consider include, among others, (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 "employer" or the individual in question 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 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 accumulates retirement benefits; (10) whether the "employer" pays social security taxes; and (11) the intention of the parties.

The District Court found in its challenged order that "plaintiff was at all times a 'Purchase Order Vendor,' hence an independent contractor and not an employee of the United States Information Agency . . . ." For this reason alone, the Court apparently concluded that it had no subject matter jurisdiction and dismissed the action. Even if the District Court had made this finding of non-employee status after applying the proper principles of law, that would not be the end of the matter. Under Fed.R.Civ.Proc. 52(a), an appellate court must set aside a trial court's findings if it concludes that they are "clearly erroneous." See United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S. Ct. 525, 92 L. Ed. 746 (1948). In this case, we need not reach the question of whether the District Court's finding was clearly erroneous, however, because the District Court applied an erroneous legal standard in holding that Spirides was outside the reach of Title VII. See United States v. Singer Mfg. Co., 374 U.S. 174, 194 n. 9, 83 S. Ct. 1773, 10 L. Ed. 2d 823.

The District Court made its decision relying principally, if indeed not entirely, on the contract language. Courts generally look to the substance of a contract rather than its form,29 and, although contract language may be indicative to some degree of the intention of the parties, it is not necessarily controlling.30 Moreover, employment contracts, no matter what the circumstances that justify their execution or what the terms, may not be used to waive protections granted to an individual under this or any other act of Congress.31

In this case, the POV contract indicates beyond question not only that the Greek Service had authority to hire appellant, but that it had authority to hire her as an independent contractor. Yet, despite the "independent contractor" language, the contract does not define the employment relationship between the parties other than to indicate in the barest of terms the service to be provided, the payment schedule, and the length of the agreement. Because consideration of these facts alone was insufficient to support a finding that appellant was an independent contractor and thus beyond the scope of the Act, we hold that the District Court's virtually exclusive reliance on the contract language as indicative of appellant's employment status was error. The Court should have reviewed all of the circumstances surrounding Spirides' work relationship in addition to its consideration of the elements of her POV contract.

The District Court also denied appellant's cross-motion for partial summary judgment, apparently on the basis of the language in the POV contract. Appellant claims that the specific facts alleged in her motion, together with those in her accompanying affidavit, are sufficient to support the grant of summary judgment in her favor, particularly in view of appellee's failure to respond to the motion with affidavits or any countering evidence. We are unpersuaded that this is so.

While it is always perilous for an opposing party to remain silent in the face of a summary judgment motion, Adickes v. S. H. Kress & Co., 398 U.S. 144, 160-61, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), the moving party still has the burden of showing that there exist no genuine issues of material fact. Id. at 159, 90 S. Ct. 1598; 6 Moore's Federal Practice P 56.22(2), at 1338 (2d ed. 1976). If the movant makes an insufficient showing, no defense is required.32

Appellant showed in her papers that she worked as a foreign language radio announcer at the Greek Service for about five years, from 1968 to 1969 and from 1970 through 1974. She worked pursuant to a Purchase Order Vendor contract for most of this period,33 and apparently pursuant to an oral agreement for the rest of the time. She normally worked approximately four hours per day from three to five days per week, and was paid per assignment. The Greek Service provided her an office and all the materials for her work. She continually worked for the same supervisor who instructed her when rehearsing or broadcasting as to voice inflection, reading tempo, and projection. The program scripts were written for her, and although her comments and criticism of the scripts were accepted, she could not change any part of a script without approval.34

Even though for present purposes we must accept these statements as true,35 there remain issues of material fact that may bear on the determination of appellant's employment status, such as whether she was given annual leave, whether the Greek Service paid social security taxes for her, and whether she received retirement benefits. Appellant thus has not met her burden of proving entitlement to partial summary judgment.

As stated hereinabove, the appeal is availing as to the dismissal of the complaint but not as to the cross-motion for summary judgment; and the case is remanded.

It is so ordered.