                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2124
                                       ___________

                               JANNIFER HILL-KEYES,
                                                 Appellant

                                             v.

                     COMMISSIONER OF THE UNITED STATES
                      SOCIAL SECURITY ADMINISTRATION
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2:13-cv-02852)
                      District Judge: Honorable Paul S. Diamond
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 1, 2016
          Before: AMBRO, GREENAWAY, JR. and GARTH, Circuit Judges

                             (Opinion filed: August 16, 2016)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Jannifer Hill-Keyes filed a counseled complaint for employment discrimination

under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the Rehabilitation

Act, 29 U.S.C. § 701, et seq. She alleged that she was harassed and terminated from her

employment with the Social Security Administration (“SSA”) on the basis of her sex

(female) and a perceived disability (a psychological disorder). She also presented a claim

of retaliation for having registered a complaint of sex discrimination. The SSA

Commissioner (the “Commissioner”) sought summary judgment on the basis that Hill-

Keyes could not recover under Title VII or the Rehabilitation Act because she was an

independent contractor of SSA, not an employee. Hill-Keyes opposed the motion on the

basis that discovery was necessary, or, alternatively, that genuine issues of fact remained

regarding her employment status. The District Court denied the Commissioner’s motion

without prejudice to allow for limited discovery on the issue.

       After discovery (namely the depositions of two persons who provided affidavits in

support of the first motion for summary judgment), the Commissioner renewed the

motion for summary judgment, again arguing that Hill-Keyes was not an SSA employee.

Hill-Keyes opposed the motion, arguing that genuine issues of fact remained, and, even if

she was an independent contractor, she could bring her claims for discrimination and

retaliation under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, which governs

nondiscrimination in federal activities and programs. In reply, the Commissioner argued

that Hill-Keyes had never before invoked § 504, that a § 504 claim was subject to

                                             2
dismissal for failure to exhaust, and that her case was dissimilar to the cases she cited in

support of a § 504 claim in any event. The District Court granted the renewed motion for

summary judgment.

       Hill-Keyes, now representing herself, appeals. We have jurisdiction pursuant to

28 U.S.C. § 1291. We exercise plenary review over the District Court’s order granting

summary judgment. Abramson v. William Patterson Coll. of N.J., 260 F.3d 265, 276 (3d

Cir. 2001). Summary judgment is appropriate if, viewing the facts in the light most

favorable to the non-moving party, there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

       In her brief and supplemental brief,1 Hill-Keyes focuses on describing behavior

that she perceived as harassment and retaliation within and without the workplace (noting

not only such things as co-workers leering and calling her such names as “schizophrenic”

but also an illegal entry into her home and interference with her husband’s e-mail

account). However, among her other arguments in her brief, Hill-Keyes includes a

challenge to the District Court’s ruling on what she terms her “job classification status,”


1
 After this appeal was first briefed, the District Court docketed its opinion (previously,
only its judgment appeared on the docket). We then allowed Hill-Keyes to file a
supplemental brief. She filed a supplement and hundreds of pages of exhibits, all of
which we have reviewed. She complains, however, that the District Court’s failure to
immediately docket its opinion “denied [her] the right to review [it] with Counsel.”
Supplemental Brief at 10. We note that she was not precluded from discussing the
opinion with counsel on its issuance. And, as she states, she did consult with counsel
about the District Court’s bare ruling previously.

                                              3
and, in her supplemental filing, she more specifically challenges the District Court’s

analysis (and the conclusion that she was not an SSA employee). The District Court’s

ruling turns on her employment status, and it is that issue that we will consider.2

       In order to prevail on her claims under Title VII and § 501 of Rehabilitation Act,

Hill-Keyes had to have an “employment relationship” with SSA. Covington v. Int’l

Ass’n of Approved Basketball Officials, 710 F.3d 114, 119 (3d Cir. 2013); see also Univ.

of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2530 (2013) (citing 42 U.S.C. § 2000e-

2(a)-(d) and explaining that Title VII forbids discrimination by employers). To determine

whether Hill-Keyes was an employee of SSA, the test of Nationwide Mutual Insurance

Company v. Darden, 503 U.S. 318 (1992), applies. See Faush v. Tuesday Morning, Inc.,

808 F.3d 208, 213 (3d Cir. 2015).

       We have recently summarized the Darden test, which helps to draw “a line

between independent contractors and employees” hired by a given entity. Faush, 808

F.3d at 215 (citing Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440,

445 n.5 (2003) (quotation marks omitted). Specifically, we explained the following:

       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. Darden provides
       a non-exhaustive list of relevant factors, including the skill required; the

2
  On appeal, Hill-Keyes also raises some arguments for the first time, including the issue
that the SSA somehow violated EEOC protocols by directing her to report her complaint
to SSA’s Central Contracting Office. We do not consider issues that were not raised
below. DIRECTV Inc. v. Seijas, 508 F.3d 123, 125 n.1 (3d Cir. 2007) (“It is well
established that arguments not raised before the District Court are waived on appeal.”)
                                             4
       source of the instrumentalities 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.

       Our Court has generally focused on which entity paid [the employees’]
       salaries, hired and fired them, and had control over their daily employment
       activities. However, [s]ince the common-law test contains no shorthand
       formula or magic phrase that can be applied to find the answer, . . . all of
       the incidents of the relationship must be assessed and weighed with no one
       factor being decisive.

Faush, 808 F.3d at 214 (citations and quotation marks excluded).

       Although some factors in the Darden test weigh in favor of a conclusion that Hill-

Keyes was an SSA employee, on balance, an analysis of the factors leads to the

conclusion that she was an independent contractor. Strong evidence of Hill-Keyes’s

status is the Blanket Purchase Agreement (“BPA”) in this case. See Brown v. J. Kaz,

Inc., 581 F.3d 175, 181 (3d Cir. 2009) (quoting and citing Holtzman v. World Book Co.,

174 F. Supp. 2d 251, 256 (E.D. Pa. 2001), for the proposition that an agreement can be

strong evidence that a plaintiff was an independent contractor); see also Holtzman, 174 F.

Supp. 2d at 256 & n.4 (stating the same and listing cases that relied on contracts to define

a litigant’s employment status). That contract, in relevant part, between SSA and a

company of which Hill-Keyes is president (and which is now known as Strategic HR,

LLC), defined the terms of the provision of consultant services by a contractor. Also,

                                             5
Hill-Keyes, in a modification letter regarding a change in her company’s name, described

her company as a contractor to SSA.

       SSA did not hire Hill-Keyes. Instead, SSA solicited proposals for contracts on a

website that lists government contract opportunities, and Strategic HR, LLC, responded

with a bid that was accepted. SSA also did not pay Hill-Keyes directly (or provide her

with any benefits). SSA made payments to Strategic HR, LLC, pursuant to the BPA’s

Invoice Submission clause. Under this clause, Strategic HR, LLC, would submit an

invoice for services provided in the preceding month based on the number of cases

reviewed multiplied by the rate per case set in the BPA. Cf. Oshiver v. Levin, Fishbein,

Sedran & Berman, 910 F. Supp. 225, 229 (E.D. Pa. 1996) (stating that the submission of

invoices on company letterhead was an indication that the worker was an outsider to the

firm). At the end of the year, Hill-Keyes did not receive a W-2 tax form from the SSA; it

sent a 1099 tax form to Strategic HR, LLC. See id. at 229-30 (concluding that the

willingness to be a 1099-employee is evidence of the acceptance of independent

contractor status).

       Hill-Keyes, a psychologist, provided case review services to the SSA as a Medical

Consultant for approximately seven years (from 2005 until 2012), but the “duration of

employment does not in and of itself suggest employee status.” Hilton Int’l Co. v.

NLRB, 690 F.2d 318, 322 (2d Cir. 1982). Also, although she did her work at a regional

SSA office, it is undisputed that the workspace (a computer, telephone, file cabinets, and

                                             6
a chair in a cubicle, not an office) was provided only because case review services had to

be performed on SSA premises because of the risk of transporting personally identifiable

information.

       Hill-Keyes’s work ordinarily had to be completed within SSA’s business hours

(by special request, she could perform case review during non-business hours), but she

could set her own hours within the times that the building was open. She averred that

SSA supervisors “directly assigned her work3 and set time and productivity requirements

for deliverables . . . in accordance with SSA standards.” Affidavit of Jannifer Hill-Keyes,

at 3, ¶ 11. We are mindful that Hill-Keyes, as the non-moving party, gets the benefit of

favorable inferences, but we note that under the unchallenged description of “SSA

standards,” she had control over how much work she did for SSA and how quickly she

completed the case reviews. SSA would issue a “call order” for a number of cases to be

reviewed. If Strategic HR, LLC, accepted a call order, Hill-Keyes could review the

number of cases in that call order over a specified time period. Even if time and

productivity requirements were set, they did not need to be met. SSA was not obligated

to issue a call order, and Hill-Keyes was not obligated to accept a call order. If Hill-


3
 Her claim of direct assignment may not be reconcilable with SSA statements that SSA
did not assign cases to Strategic HR, LLC, or Hill-Keyes, and that Hill-Keyes could
choose cases from an automated computer system. Also in dispute is whether her work
was part of SSA’s regular business because it was part of the assessment of requests for
benefits or separate from its regular business because case reviews were provided through
contracts under the BPA. However, as noted above, no one factor is decisive.

                                              7
Keyes did not complete the full number of cases in the call order, the only consequence

was that Strategic HR, LLC, would not be paid for the cases not completed.

       The BPA provided for monitoring of a contractor’s level of performance and Hill-

Keyes, who provided a service requiring professional skill, received initial training

(including a professional in her discipline to mentor and coach her). Hill-Keyes averred

that she reported to two SSA employees, one who reviewed “technical aspects of her

work to ensure . . . compliance with SSA guidelines” and “inspect[ed] the quality of [her]

work,” and one who “regularly reviewed the productivity, overall quality, and timeliness

of [her] work.” Affidavit of Jannifer Hill-Keyes, at 2, ¶ 8, & 3, ¶ 14. In her deposition,

the former employee described her responsibility to conduct a once-a-year review for

policy compliance separate from a review of the medical analysis provided (the case

reviews being subject to review by random sampling). The latter also conceded at his

deposition that he conducted a once-a-year review for quality and timeliness that is

required by the BPA. They further stated, however, that they did not supervise the

individuals completing case reviews or conduct SSA employee performance evaluations

for those persons.

       Not every Darden factor supports the conclusion that Hill-Keyes was an

independent contractor for SSA. However, on balance, it cannot be said that there was a

genuine dispute of material fact on the issue. Particularly in light of the contract between

the parties, the day-to-day control that Hill-Keyes had over her work schedule and work

                                             8
product, and the structure of Hill-Keyes’s compensation and its tax treatment, the

Commissioner showed that Hill-Keyes was an independent contractor for SSA. Because

Hill-Keyes lacked the requisite employment relation with SSA to recover on her Title VII

and Rehabilitation Act claims,4 we conclude that the District Court properly granted

summary judgment in favor of the Commissioner. Accordingly, we will affirm the

District Court’s judgment.




4
  On appeal, Hill-Keyes does not appear to raise the § 504 Rehabilitation Act claim she
included in her response to the Commissioner’s renewed motion for summary judgment.
Nonetheless, if we were to consider it, we would conclude that the District Court did not
err in rejecting it. Even assuming arguendo that she could bring such a claim as an
independent contractor and without exhausting it before the EEOC, the cases she cited in
the District Court do not support her recovery under § 504 in these circumstances.
                                             9
