                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         July 5, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 DIA NE XIE, an individual,

               Plaintiff-Appellant/              Nos. 06-4087 & 06-4098
               Cross-A ppellee,


          v.                                             (D. Utah)
 UNIVERSITY OF U TAH, a higher                  (D.C. No. 2:04-CV-864-TC)
 education institution and political
 subdivision of the State of Utah,

               Defendant-Appellee/
               Cross-Appellant.




                            OR D ER AND JUDGM ENT *


Before K E LL Y, HE N RY, and LUCERO, Circuit Judges. **


      Diane Xie, Ph.D., served as a research associate professor in the

Department of Civil and Environmental Engineering at the University of Utah


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.


      **
          After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. The case is therefore ordered submitted without oral argument. See
F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G).
from September 2000 to July 2003. W hen the University decided not to renew

her contract, Dr. Xie filed this action under Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17, alleging that the University

had discriminated against her on the basis of her national origin and gender and

had retaliated against her for complaining about that discrimination.

      The district court granted the University’s motion to dismiss for lack of

subject matter jurisdiction, reasoning that Dr. Xie was not the U niversity’s

employee. Dr. Xie now challenges that decision. Invoking the Supreme Court’s

decision in Arbaugh v. Y & H Corp., 126 S. Ct. 1235 (2006), decided on the same

day that the district court dismissed her claims, she argues that, contrary to the

district court’s view, employee status is not a threshold jurisdictional requirement

under Title VII but rather a question of fact for the jury. Additionally, Dr. Xie

contends that the district court erred in refusing to allow her to take the

deposition of Professor Lawrence Reaveley, the chair of the Department of Civil

and Environmental Engineering.

      The University cross-appeals. Although it agrees that, in light of Arbaugh,

employee status is not a threshold jurisdictional requirement under Title VII, the

University maintains that Dr. Xie w as not its employee and that, as a result, this

court should direct the entry of judgment on the merits in its favor.

      W e agree that employee status is an element of Dr. Xie’s Title VII claims

rather than a threshold jurisdictional requirement. W e further conclude that Dr.

                                          -2-
Xie w as not a U niversity employee and that the district court did not abuse its

discretion in refusing to allow Dr. X ie to depose Professor Reaveley.

Accordingly, we remand the case to the district court with instructions to enter an

amended judgment in favor of the U niversity on the merits of D r. Xie’s Title VII

claims.

                                 I. BACKGROUND

      In M arch of 2000, Dr. Xie contacted Professor Lawrence D. Reaveley, the

chairman of the University of Utah’s Department of Civil and Environmental

Engineering. She told him that she would like to apply for a faculty position.

Professor Reaveley asked for Dr. Xie’s resumé, and, upon reviewing it, he found

a position for her in the Energy and Geoscience Institute, which was affiliated

with the University of Utah.

      Dr. X ie began working at Energy and Geoscience Institute in July 2000.

W ithin a few weeks, she contacted Professor Reaveley again and asked about a

position with the Civil and Environmental Engineering Department. Although

there were no teaching positions available, Professor Reaveley and Dr. Xie

discussed the possibility of her associating with the Department so that she could

pursue her research interests.

      In September 2000, Dr. Xie received a one-year appointment as a

“Research Associate Professor.” The Department renewed this appointment in

June 2001 and June 2002, but it declined to do so in June 2003.


                                          -3-
      A section of the University’s policy manual uses the word “employ” when

discussing “auxiliary faculty” such as “research, clinical, lecturer (or lecturing),

adjunct, or visiting faculty members.” Aplt’s App. vol. III, at 473. The

University provided Dr. Xie with a shared office, a shared telephone, access to a

copier, some business cards, and a mailbox. As a research associate professor,

Dr. Xie w as subject to some of the University’s policies regarding scientific

research. In particular, in order to ensure that her grant proposals complied with

University standards, University officials reviewed her proposals before she

submitted them to outside entities. The University also retained an ownership

interest in any work product that she produced.

      However, the University did not pay Dr. Xie a salary or provide her with

insurance, vacation time, retirement, or other benefits. According to Dr. Xie, the

University agreed that she could keep a portion of the grant money that she

received. However, it is undisputed that Dr. Xie never received any grant money

during the time she was associated with the University. Additionally, the

University did not pay social security or other taxes on her behalf. It did not

require her to work a certain number of hours and did not monitor her day-to-day

work activities. Dr. Xie did not teach any courses, advise students, or perform

administrative tasks for the University. She supplied her own computer and all

additional supplies.




                                          -4-
      After the University declined to renew her appointment, Dr. Xie filed this

Title VII action, alleging that the decision was based on her national origin and

gender and was taken in retaliation for her complaints about that discrimination.

Shortly after filing the complaint, she sought to take Professor Reaveley’s

deposition. However, the University objected on the grounds that Dr. Xie had not

complied with her own disclosure obligations under the Federal Rules of Civil

Procedure.

      Subsequently, the University filed a motion to dismiss, arguing that the

district court lacked subject matter jurisdiction over the Title VII claims because

Dr. Xie was not its employee. Dr. Xie then moved the court to order Professor

Reaveley’s deposition. A magistrate judge granted the motion, but the University

appealed that ruling to the district court, arguing that the court should stay

discovery until it ruled on the motion to dismiss. At a motions hearing, the

district court granted that request.

      In a February 2006 Order and M emorandum Decision, the district court

granted the University’s motion to dismiss. The court applied a multi-factor test

to determine whether Dr. Xie was the University’s employee. See Aplt’s App.

vol. II, at 299-300 (Dist. Ct. M emorandum Decision) (citing Lambertsen v. Utah

Dep’t of Corrs., 79 F.3d 1024, 1028 (10th Cir. 1996)). Under that test, the main

focus is whether the alleged employer controls the means and manner of the

worker’s performance. Lambertsen, 79 F.3d at 1028.


                                          -5-
      Here, the court acknowledged, some factors weighed in favor of

considering Dr. Xie an employee. However, the court concluded, the University

had “minimal ability . . . to control the means and manner of [Dr.] Xie’s work,”

and “the affidavits submitted by both parties indicate that the University and [Dr.]

Xie intended to enter into a loose association rather than a formal employer-

employee relationship.” Aplt’s App. vol. II, at 302-03. Thus, Dr. Xie was not the

University’s employee, and the court lacked jurisdiction over her Title VII claims.

      Dr. Xie filed two post-judgment motions. She contended that, in light of

Arbaugh v. Y & H Corp., 126 S. Ct. 1235 (2006), the district court had erred in

characterizing employee status as a threshold jurisdictional requirement under

Title VII. The district court denied both motions.



                                  II. DISCUSSION

      Dr. Xie challenges the district court’s ruling that she was not the

University’s employee and its decision not to allow her to depose Professor

Reaveley. The University responds that although the district court did err in

holding that it lacked subject matter jurisdiction, this court should direct the entry

of judgment in its favor on the merits of Dr. Xie’s Title VII claims because the

undisputed facts establish that she was not the University’s employee.

      Both Dr. Xie’s challenge to the district court’s dismissal of her complaint

and the University’s argument for affirmance on alternative grounds raise legal


                                          -6-
issues that we examine de novo. See Georgacarakos v. United States, 420 F.3d

1185, 1186 (10th Cir. 2005) (reviewing de novo the grant of a motion to dismiss

for lack of subject matter jurisdiction); Steffey v. Orman, 461 F.3d 1218, 1221

(10th Cir. 2006) (stating that whether summary judgment is warranted is also a

legal question). W e review for an abuse of discretion the district court’s decision

not to allow Dr. Xie to depose Professor Reaveley. Shaklee Corp. v. Gunnell, 748

F.2d 548, 550 (10th Cir. 1984). A trial court abuses its discretion when it issues a

ruling that is “arbitrary, capricious, whimsical, or manifestly unreasonable.”

Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999).

            A. Employee Status is not a Threshold Jurisdictional Issue

      Title VII prohibits unlawful employment practices by “an employer.” 42

U.S.C. § 2000e-2(a). The statute defines “an employer” as “a person engaged in

an industry affecting commerce who has fifteen or more employees.” 42 U.S.C. §

2000e(b). An “employee” is “an individual employed by an employer.” 42

U.S.C. § 2000e(f).

      Here, there is no dispute that the University is an “employer” under Title

VII: it is engaged in an industry affecting comm erce and has more than fifteen

employees. However, the parties do dispute whether Dr. Xie herself was

employed by the University.

      Since W heeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987), this circuit

has treated the definitions at § 2000e as both substantive and jurisdictional.


                                         -7-
However, in light of the Supreme Court’s decision in Arbaugh, we now conclude

that employee status is an element of Dr. Xie’s Title VII claims rather than a

matter of subject matter jurisdiction.

      In Arbaugh, the Court considered the provision of Title VII that states that

the statute’s protections only apply to those employers that have fifteen or more

employees. 42 U.S.C. § 2000e(b). The Court held that the requirement was “an

elem ent of the plaintiff’s claim for relief, not a jurisdictional issue” because it

appeared “in a separate provision that does not speak in jurisdictional terms or

refer in any way to the jurisdiction of the district courts.” 126 S. Ct. at 1245

(internal quotation marks omitted).

      Like the fifteen-or-more-employees requirement, the Title VII provision

that extends the statutory protections to employees but not independent

contractors is set forth in the definitional section of the statute. See 42 U.S.C. §

2000e(f). As w ith the fifteen-or-more employees requirement addressed in

Arbaugh, there is no indication that Congress considered employee status to be a

threshold jurisdictional requirement. W e therefore conclude that Dr. Xie was not

required to prove as a threshold jurisdictional requirement that she was an

employee of the University. Instead, her alleged employee status is an element of

her Title VII claims.

      Here, the district court may well have concluded from our decision in

W heeler that it was not necessary to determine w hether employee status was a


                                          -8-
question of subject matter jurisdiction or an element of Dr. X ie’s Title VII claims.

In any event, because the district court’s order expressly states that the claims

were dismissed for lack of subject matter jurisdiction, we must now consider

whether in light of Arbaugh we must reverse and remand its decision for

discovery, a round of summary judgment motions, and perhaps a trial.

      In Arbaugh, the Court explained the potential consequences of

characterizing an issue as one of subject matter jurisdiction. First, because

subject matter jurisdiction involves the court’s power to hear a case, it can never

be forfeited or waived. Thus, courts have an independent obligation to determine

whether subject matter jurisdiction exists, even in the absence of a challenge from

any party. Second, in some instances, if subject matter jurisdiction turns on

contested facts, the trial judge may be authorized to review the evidence and

resolve the dispute on her own; in contrast, if satisfaction of an essential element

of a claim for relief is at issue, the jury is the proper trier of contested facts.

Third, when a federal court concludes that it lacks subject matter jurisdiction, the

court must dismiss the complaint in its entirety; in contrast, when a court grants a

motion to dismiss for failure to state a federal claim, the court generally retains

discretion to exercise supplemental jurisdiction, pursuant to 28 U.S.C. § 1367,

over pendent state-law claims. Arbaugh, 126 S. Ct. at 1244-45.

      Here, the first potential consequence is not in play. Unlike the defendant in

Arbaugh, who did not raise the issue of the number of employees on its payroll


                                           -9-
until two weeks after the entry of judgment on a jury verdict, the U niversity here

raised the question of Dr. Xie’s status in a pretrial motion to dismiss. Therefore,

there is no concern that, by incorrectly characterizing the employee-status issue as

jurisdictional, the district court permitted a party to raise a defense that would

have otherwise been waived because it was not asserted in a timely fashion.

      The third potential consequence of incorrectly characterizing the employee

issue as jurisdictional is also not present here. Dr. Xie did not assert any pendent

state claims in her complaint. Thus, we need not concern ourselves with the

effect of district court’s characterization of the issue as jurisdictional on such

other claims.

      However, the second potential consequence noted in Arbaugh requires

closer examination. The district court reviewed the parties’ evidentiary

submissions and concluded that Dr. Xie was not an employee. Because the

employee-status issue involved the merits of D r. Xie’s Title VII claims, the court

was not allowed to resolve contested facts. See id. at 1244. W e therefore turn to

the question of whether the uncontested facts establish that Dr. Xie was not an

employee of the University.

                             B. Alleged Employee Status

      Dr. Xie argues that a reasonable juror could have concluded that she was

an employee of the University. In support of that argument, she points to the

University’s statements in its policy manual that “auxiliary faculty,” like research


                                          -10-
associate professors, are “employ[ed]” by the University. Aplt’s App. vol. III, at

473. Additionally, she alleges that “it was the parties’ intent to pay her $80,000

annually from grant moneys.” Aplt’s Br. at 20. Finally, she argues that the

district court’s observations about the U niversity’s lack of control over her w ork

are irrelevant because all professors, in light of academic freedom principles,

work independently.

      As the district court observed, in determining whether a party is an

employee protected by Title VII, we apply a multi-factor test under which the

main focus is whether the alleged employer controlled “the means and manner by

which the work is accomplished.” Lambertsen, 79 F.3d at 1028. The court may

consider many other factors, including: (1) the kind of occupation at issue, with

reference to whether the work is done at the direction of a supervisor or by a

specialist without supervision; (2) the skill required; (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. Id.




                                         -11-
      Upon consideration of these factors, we agree with the district court that the

undisputed facts establish that Dr. Xie was not the U niversity’s employee. M ost

importantly, the University exercised very little, if any, control over her daily

activities. During her time as a research associate professor, Dr. Xie could pursue

whatever research activities she chose. She had no teaching, advising, or

administrative obligations to the University, and she received no regular

supervision in the conduct of her research. That degree of independence

undermines her contention that she was an employee. See W ilde v. County of

Kandiyohi,15 F.3d 103, 106 (8th Cir. 1994) (concluding that the plaintiff business

owner w as not an employee because she “maintained a great deal of freedom in

choosing her working hours and choosing the services she would provide”)

(internal quotation marks omitted); Pisharodi v. Valley Baptist M ed. Ctr., 393 F.

Supp. 2d 561, 571 (S.D. Tex. 2005) (concluding that the plaintiff physician was

not an employee of defendant hospital under Title VII and reasoning that

“[a]lthough [the plaintiff’s] staff privileges could be revoked by [the hospital]

(effectively ‘firing’ him), [the hospital] had no right to supervise him and could

not control his work schedule” and that the plaintiff “was free to work if and when

he so desired and to work in the manner of his choosing”); Tadros v. Coleman, 717

F. Supp. 996, 998, 1005 (S.D.N.Y. 1989) (concluding that the plaintiff, appointed

a “Visiting Lecturer in Ophthalmology,” was not an employee of a medical school

because “[none] of the of the M edical College’s faculty assign[ed] [the plaintiff]


                                          -12-
any work or attempt[ed] to exercise any control over what [the plaintiff] tried to

do”), aff’d, 898 F.2d 10 (2d Cir. 1990).

      M oreover, we agree with the district court that additional facts weigh

against D r. Xie’s contention that she was an employee. The University never paid

her a salary, never provided her with employment-related benefits, and never paid

social security or other taxes on her behalf. M oreover, the supplies provided by

the U niversity were minimal (a shared office, a shared telephone, business cards,

and the use of an office copy machine). See York v. Ass’n of the Bar of the City

of N. Y., 286 F.3d 122, 126 (2d Cir. 2002) (concluding that a member of a bar

association’s international law committee was not an employee despite the fact

that the association had provided her with workspace, clerical support, publicity,

and reimbursement for out-of-pocket expenses). Additionally, as we discuss

below, the facts noted by Dr. Xie in her appellate brief do not constitute colorable

evidence of employee status.

      First, the faculty regulations that she invokes only briefly use the term

“employ” in addressing the role of “auxiliary faculty.” They state that “[i]n light

of the University’s need to retain the flexibility to adjust its programs to meet

changing needs and to employ faculty with more specialized foci to that end,

auxiliary faculty may be appointed as research, clinical, lecturer (or lecturing),

adjunct or visiting faculty members as further defined in the sections below.”

Aplt’s A pp. vol. III, at 473 (emphasis added). The regulations then describe in


                                           -13-
general terms the roles of various categories of “auxiliary faculty,” including

“research faculty” like Dr. Xie:

              Research Faculty . . . [,] individuals w ho participate in the
              university’s academic program . . . but whose primary
              professional efforts are devoted to one or more research
              projects, or nonacademic training projects[,] may be
              appointed to the rank of professor, associate professor,
              assistant professor, or instructor. . . . Appointments to
              “research” positions are without significance for the
              achieving or holding of tenure.

Id. at 474.

       These regulations do not purport to describe in detail the responsibilities of

particular associate research faculty. They allow individual colleges and

departments to define the responsibilities of auxiliary faculty with more

particularity and thus add little to the inquiry.

       Second, Dr. Xie’s allegation that the University agreed to pay her an

$80,000 salary out of grant money is belied by the record. In support of that

contention, Dr. Xie relies on a Personnel Action Notification Form, dated August

1, 2000, that lists a salary of that amount. Aplt’s App. vol. I, at 183. However,

the University has submitted an affidavit from a payroll officer explaining that the

document at issue relates to Dr. Xie’s position with the Energy and Geoscience

Institute, a position that Dr. Xie briefly held before she was appointed a research

associate professor. See Aplt’s App. vol. I, at 185-87 (affidavit of Janice

Sherw ood).



                                           -14-
      Finally, contrary to her contention, principles of academic freedom do not

help Dr. Xie’s case. It is true that the University affords its faculty substantial

independence in intellectual pursuits. However, the record establishes that the

relationship between the University and Dr. Xie was far more attenuated than that

of an educational institution and its faculty employees. As w e have noted, Dr. Xie

had no teaching or administrative obligations and received no regular supervision

or evaluation. Aside from the requirement that she submit her grant proposals to a

University committee and the fact that she was subject to the University’s rules on

research misconduct, the University had little, if any, control over her day-to-day

activities. W e therefore agree with the district court that “[t]oo many critical

components of a traditional employment relationship are absent here.” A plt’s

App. vol. II, at 303.

                           C. Professor Reaveley’s Deposition

      Finally, Dr. Xie contends that the district court abused its discretion in

refusing to allow her to take the deposition of Professor Reaveley, the chairman of

the U niversity’s Department of Civil and Environmental Engineering, before

ruling on the University’s motion to dismiss. Dr. Xie maintains that she requested

that the court allow discovery pursuant to Fed. R. Civ. P. 56(f) but that the court

denied the request, therefore depriving her of “adequate discovery” before

dismissing her complaint. Aplt’s Br. at 28. Dr. Xie also argues that the court

erred in deciding the issue without allowing oral argument.


                                          -15-
      In considering these contentions, we first note the procedural context in

which the court dismissed Dr. Xie’s complaint. The University had filed a motion

to dismiss, alleging a lack of subject matter jurisdiction. Prior to the Supreme

Court’s decision in Arbaugh (discussed above), the parties reasonably believed

that the question of Dr. Xie’s employee status raised a threshold issue of subject

matter jurisdiction. See Arbaugh, 126 S. Ct. at 1242 (noting “conflicting opinions

in Courts of Appeals on the question whether Title VII’s employee-numerosity

requirement, 42 U.S.C. § 2000e(b), is jurisdictional or simply an element of a

plaintiff’s claim for relief”); W heeler, 825 F.2d at 259 (stating that “the

determination of whether [the plaintiff] qualifies as an employee under the federal

discrimination statutes is both a jurisdictional question and an aspect of the

substantive claim in her discrimination action”). Thus, because the University did

not file a summary judgment motion, Fed. R. Civ. P. 56(f), which allows the party

responding to a summary judgment motion to request further discovery, was not

directly applicable. See Price ex rel. Price v. W . Res., Inc., 232 F.3d 779, 783

(10th Cir. 2000) (noting that the central tenet of Rule 56(f) is that “summary

judgment [should] be refused where the nonmoving party has not had the

opportunity to discover information that is essential to his opposition”) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986) (alteration in

Price)).




                                          -16-
      M oreover, contrary to her contention in her appellate brief, Dr. Xie never

filed a Rule 56(f) affidavit requesting additional discovery before responding to

the merits of her motion. Instead she merely filed a motion for leave to file a Rule

56(f) motion. See Aplt’s App. vol. II, at 217-220.

      Nevertheless, requests for additional discovery to respond to motions to

dismiss alleging a lack of subject matter jurisdiction (like the University’s motion

here) are governed by principles resembling those established in summary

judgment practice under Fed. R. Civ. P. 56. In particular, we have held that

“[w]hen a defendant moves to dismiss for lack of jurisdiction, either party should

be allowed discovery on the factual issues raised by that motion.” Sizova v. Nat’l

Inst. of Standards & Tech. 282 F.3d 1320, 1326 (10th Cir. 2002) (internal

quotation marks omitted). Additionally, although a district court has discretion in

the manner by which it resolves an issue of subject matter jurisdiction pursuant to

Fed. R. Civ. P. 12(b)(1), a refusal to grant discovery may constitute an abuse of

discretion if the denial results in prejudice to the party responding to the motion.

Id. 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.” Id. (quoting W ells Fargo & Co. v. W ells Fargo Express Co., 556

F.2d 406, 430 n.24 (9th Cir. 1977) (internal quotation marks and citations

omitted)).




                                          -17-
      Here, Dr. Xie has failed to establish that her lack of opportunity to depose

Professor Reaveley prejudiced her with regard to the district court’s ruling that she

was not an employee of the University. In neither her appellate brief nor in the

district court papers to which she now refers, see Aplt’s Br. at 27, does D r. Xie

contend that she needed to obtain information from Professor Reaveley in order to

adequately respond to the University’s motion to dismiss. M oreover, as the

University notes, Dr. Xie presented her own affidavit in response to the

University’s motion. If there were additional facts not noted by the University

that indicated that the University controlled “the means and manner by which the

work is accomplished,” and thus supported her theory that she was an employee of

the University, Dr. Xie herself would seem to be in as good a position as Professor

Reaveley to testify about those facts. Lambertsen, 79 F.3d at 1029. Dr. Xie has

also failed to establish that she was prejudiced by the district court’s decision not

to allow oral arguments on this issue. See In re Young, 91 F.3d 1367, 1377 (10th

Cir. 1996) (rejecting a challenge to the denial of oral argument absent a showing

of prejudice).

                                  III. CONCLUSION

      W e therefore conclude that Dr. Xie was not employed by the University and

that, as a result, the U niversity is entitled to judgment in its favor on Dr. Xie’s

Title VII claims. Accordingly, we VACATE the district court’s judgment

dism issing D r. X ie’s claims for lack of subject matter jurisdiction and REM AN D


                                           -18-
the case for the entry of judgment in favor of the U niversity on the merits of D r.

Xie’s Title VII claims.



                                 Entered for the Court,



                                 Robert H. Henry
                                 United States Circuit Judge




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