253 F.3d 5 (D.C. Cir. 2001)
Cynthia Miranda Morrison, Appellantv.International Programs Consortium, Inc. and Kathleen M. Hanlon, Appellees
No. 00-7150
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2001Decided June 22, 2001

[Copyrighted Material Omitted]
Appeal from the United States District Court  for the District of Columbia (No. 97cv01837)
Jerry R. Goldstein argued the cause for the appellant.
Ernest C. Baynard, III argued the cause for the appellees.
Before:  Edwards, Chief Judge, Williams and Henderson,  Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge:


1
Appellant Cynthia Miranda Morrison appeals the district court's denial of  her motion for partial summary judgment and its grant of the  appellees' motion for judgment as a matter of law.  She also  challenges the court's evidentiary ruling excluding documentation of an IRS assessment and levy.  For the reasons that  follow, we affirm the district court's denial of summary judgment and its evidentiary ruling but reverse the court's grant  of judgment as a matter of law.

I. Background

2
In June 1994 appellee Katie Hanlon, president of appellee  International Programs Consortium, Inc. (IPC), hired Morrison as a consultant to perform recruiting and management  tasks pursuant to a series of written contracts.  After the  contracts expired in late 1994 Morrison continued to perform  consulting work for IPC and also began to perform various  office tasks and was required to prepare daily activity sheets  for Hanlon.  Morrison, however, continued to consider herself  an independent contractor and submitted invoices to IPC on  "C. Miranda Morrison Consulting" letterhead.


3
On July 5, 1995 Morrison wrote Hanlon to notify her that  as of August 1, 1995 she "will no longer be offering services as a consultant to IPC."  Letter from C. Miranda  Morrison to Kathleen M. Hanlon (July 5, 1995), reprinted at  JA 319.  She continued to work for IPC during July, concentrating primarily on a U.S. Agency for International Development (USAID) delivery order (the Moldova project).  On July  28, 1995 Hanlon terminated Morrison for failing to take  direction as well as for taking days off from work without  permission.  Morrison subsequently submitted her July 1995  time and expense statements which reflected $4061.64 for  hours worked (22 days at $184.62 per day) and $228.26 for  expenses she paid on behalf of IPC.  Neither Hanlon nor IPC  paid Morrison for her time or expenses.


4
On January 8, 1996 Morrison filed with the IRS District  Director a request for "Determination of Employee Work  Status for Purposes of Federal Employment Taxes and Income Tax Withholding" on IRS Form SS-8.  IPC responded  to the IRS's subsequent request for further information  through its certified public accountant, explaining why it  believed Morrison to be an independent contractor while she  worked for IPC.  The IRS District Director then determined  that under 26 U.S.C.  3121(d)(2) Morrison was an employee  rather than an independent contractor.  The determination  noted, however, that "[a]s we are not in a position to personally judge the validity of the facts provided, our determination  is based on the information presented."  Letter from Michael  M. Greenspan, IRS District Director, to Kathleen M. Hanlon  (July 1, 1996), reprinted at JA 356.  It explained that "[w]e  have submitted an Information Report to the IRS District  Office having examination jurisdiction for your area.  It may  be necessary to initiate an examination of your Federal  employment taxes in this matter."  Id.  The IRS ultimately  assessed taxes and penalties totaling $3530.64 against IPC on  the ground that Morrison had been an IPC employee during  the entire time she worked for IPC in 1995.  The IRS  subsequently levied on IPC's bank account to satisfy the  assessment.  Neither Hanlon nor IPC appealed the IRS  assessment or levy.


5
On August 14, 1997 Morrison brought suit in the district  court against the appellees,1 alleging that she had been an  IPC employee in 1995 and that the appellees had violated (a)  the Fair Labor Standards Act (FLSA), 29 U.S.C.  216, by  failing to pay her minimum wages and overtime for weeks in  which she worked more than 40 hours in July 1995 (Count I),  (b) the D.C. Payment and Collection of Wages Law, D.C.  Code §§ 36-101 et seq., by failing to pay her for July wages  and expenses advanced on behalf of IPC (Count II), (c) the  D.C. Minimum Wage Act, D.C. Code §§ 36-220 et seq., by  failing to pay her minimum wages and overtime (Count III)  and (d) its contractual obligation to reimburse her for $228.26 in expenses that she incurred on behalf of IPC (Count IV). Before trial Morrison sought partial summary judgment on  counts I, II and III, maintaining that the IRS determination  had preclusive effect on the question of her status as an  employee under the FLSA and D.C. labor laws.  At the time  she moved for summary judgment, she relied solely on the  IRS determination letter;  she did not submit documents  relating to the assessment and levy because the appellees had  failed to produce them.  The trial court denied the motion for  partial summary judgment because (1) Morrison failed to  produce evidence that the IRS ever investigated the matter  beyond its initial determination or that IPC paid any assessed  taxes and penalties;  (2) the IRS did not act in a judicial  capacity when it issued the determination letter;  and (3)  according to the definition of "employee" under IRS regulations Morrison was not entitled to any "employee" rights  under the FLSA, the D.C. Wages Law or the D.C. Minimum  Wage Act.  See Morrison v. International Programs Consortium,  Inc., No. 97-1837, slip op. at 5-8 (D.D.C. filed Feb. 4, 2000). Morrison appeals this ruling.


6
The case was then tried before a jury.  At trial the  magistrate judge refused to admit documents detailing the  IRS assessment and levy because "the court finds that they  are not relevant to any issue which would be before the jury."  JA 267.  This is the second ruling Morrison appeals.  At the  conclusion of Morrison's case the judge provided Hanlon, who  was representing herself, a copy of Fed. R. Civ. P. 50 and  granted Hanlon's subsequent motion for judgment as a matter of law on all four counts, concluding that Morrison  presented no evidence to support her contention that she was  an employee of IPC.  JA 299-303.  This is the final ruling  Morrison appeals.

II. Analysis

7
We review de novo the trial court's ruling on Morrison's  motion for summary judgment, see Crawford v. Signet Bank,  179 F.3d 926, 928 (D.C. Cir. 1999), as well as its grant of  judgment as a matter of law to the appellees.  Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 827-28 (D.C. Cir.  1988);  McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d  637, 640-41 (D.C. Cir.1988).  We review findings of fact for  clear error, Fed. R. Civ. P. 52(a);  Brock v. Mr. W Fireworks,  Inc., 814 F.2d 1042, 1045 (5th Cir. 1987), but review de novo  questions of law, including the question of employee status.  See Mr. W Fireworks, 814 F.2d at 1045;  see also United  States v. Bridges, 175 F.3d 1062, 1065 (D.C. Cir. 1999). Finally, our review of the trial court's evidentiary ruling is for  abuse of discretion. See FRE 103(a);  see also United States v.  Clarke, 24 F.3d 257, 265-67 (D.C. Cir. 1994).

A. Summary Judgment

8
Morrison moved for summary judgment on counts I, II and  III of her complaint on the ground that the IRS had preclusively decided whether Morrison was an IPC employee under  federal and D.C. labor law.  The district court denied the  motion. We affirm.


9
The United States Supreme Court has "long favored application of the common-law doctrines of collateral estoppel (as  to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality."  Astoria Fed. Savings & Loan Ass'n v. Solimino, 501 U.S.  104, 107 (1991).  "When an administrative agency is acting in  a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res  judicata to enforce repose."  United States v. Utah Constr. &  Mining Co., 384 U.S. 394, 422 (1966).  Acting in a judicial  capacity includes utilizing "procedure that seems an adequate  substitute for judicial procedure."  18 Wright, Miller & Cooper, Federal Practice and Procedure  4475, at 764-65  (1981).  There is no evidence that the issue of Morrison's  employment status was "actually and necessarily litigated and  decided in a prior final judgment."  See Nasem v. Brown, 595  F.2d 801, 805 (D.C. Cir. 1979).  The IRS was careful not to  decide the accuracy of the information Hanlon presented to it. See Letter from Michael M. Greenspan, IRS District to  Kathleen M. Hanlon (July 1, 1996), reprinted in JA 356.  We do not accept Morrison's assertion that Hanlon's right of  appeal from the ruling converted the IRS determination into  an adjudication of Morrison's employment status under the  FLSA or D.C. labor laws.2  Accordingly, the IRS determination is not entitled to preclusive effect on the issue of Morrison's employment status and the district court properly denied Morrison's motion for summary judgment on counts I, II  and III.

B. Evidentiary Ruling

10
The district court excluded as irrelevant IPC's submissions  to the IRS as well as documents relating to the IRS assessment and levy on IPC's bank account.  JA 268.  Morrison  argues that the evidence was relevant to the issue of the  preclusive effect of the IRS action.  She does not argue that  the evidence was relevant to any other issue, including whether she was an employee under the economic reality test. Because the IRS action had no preclusive effect on whether  Morrison was an employee under the FLSA and D.C. labor  laws, its exclusion was proper;  the evidence was not relevant  to any issue before the court.  Fed. R. Evid. 402.

C. Judgment as a Matter of Law

11
Rule 50(a) provides that "[i]f during a trial by jury a party  has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for  that party on that issue, the court may determine the issue  against that party and may grant a motion for judgment as a  matter of law against the party with respect to a claim or  defense that cannot under the controlling law be maintained  or defeated without a favorable finding on that issue."  Fed.  R. Civ. P. 50(a).  At the close of Morrison's case, the magistrate judge, after furnishing Hanlon a copy of Rule 50,  entertained a motion for judgment as a matter of law.  The  judge then ruled from the bench that "there is no legally  sufficient evidentiary basis for a reasonable jury to find for  the plaintiff." JA 299.  The court explained that during July  1995 Morrison was not an employee under the economic  reality test set forth by the Second Circuit in Brock v.  Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1988).  In so  doing the court emphasized, inter alia, the following facts:3 (1) Morrison submitted her invoices on her own letterhead,  (2) she believed that she was an independent contractor, (3)  IPC filed 1099 tax forms, rather than W-2 tax forms, for her,  (4) she received only minimal direction from Hanlon, (5) there  was no evidence that Hanlon was present in the office on the  days in which Morrison worked, (6) there was no evidence  that Hanlon required Morrison to report on a daily basis, (7)  Morrison worked at home on "some occasions," (8) there was  no evidence that Morrison's work was an integral part of  IPC's business and (9) she had only one task for July 1995,  which was of limited scope and duration.


12
The FLSA defines "employee" as "any individual employed  by an employer."  To "employ" includes "to suffer or permit  to work." 29 U.S.C. §§ 203(e)(1), 203(g).  "The definition is  necessarily a broad one in accordance with the remedial  purpose of the Act."  Superior Care, 840 F.2d at 1058.  The  statutory definition, however, provides no specific guidance.


13
In Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33  (1961), the Supreme Court directed courts to look at "economic reality" rather than "technical concepts" to determine  employment status under the FLSA.  The "test considers the  extent to which typical employer prerogatives govern the  relationship between the putative employer and employee." Henthorn v. Department of Navy, 29 F.3d 682, 684 (D.C. Cir.  1994).  In Henthorn we explained that we ask "whether the  alleged employer (1) had the power to hire and fire the  employees, (2) supervised and controlled employee work  schedules or conditions of employment, (3) determined the  rate and method of payment, and (4) maintained employment  records." Id. (citation omitted).  In Superior Care, the Second Circuit case relied upon by the magistrate judge, the  court set forth a different, although similar, set of factors. These include:  (1) the degree of control exercised by the  employer over the workers, (2) the workers' opportunity for  profit or loss and their investment in the business, (3) the  degree of skill and independent initiative required to perform  the work, (4) the permanence or duration of the working  relationship and (5) the extent to which the work is an  integral part of the employer's business.  Superior Care, 840  F.2d at 1058-59.  No one factor standing alone is dispositive  and courts are directed to look at the totality of the circumstances and consider any relevant evidence.  See Herman,  172 F.3d at 139;  Superior Care, 840 F.2d at 1059;  see also  Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311-12 (5th Cir.  1976) ("It is dependence that indicates employee status. Each test must be applied with that ultimate notion in mind. More importantly, the final and determinative question must  be whether the total of the testing establishes the personnel  are so dependent upon the business with which they are  connected that they come within the protection of the FLSA  or are sufficiently independent to lie outside its ambit."  (emphasis original)).


14
Under Rule 50 the court was required to view the facts in  the light most favorable to Morrison.  So viewing the facts  manifests that IPC "had the power to hire and fire" her,  "supervised and controlled [her] work schedules or conditions of employment" and "determined the rate and method of  payment." Henthorn, 29 F.3d at 684.  The evidence also  showed that Hanlon and IPC exercised a considerable "degree of control" over Morrison and that she had little "opportunity for profit or loss" and made no "investment in the  business."  Superior Care, 840 F.2d at 1058.


15
The district court stressed Morrison's description of herself  as a consultant.  "[F]acile labels and subjective factors[,  however,] are only relevant to the extent that they mirror  'economic reality.' "  Mr. W Fireworks, 814 F.2d at 1044;  cf.  Superior Care, 840 F.2d at 1059 (employer's admission that  individual was employee is "highly probative").  And Morrison's self description may not reflect economic reality.  For  example, Morrison presented evidence that she did "everything from recruiting, planning meetings, going to the bank,  going to the post office, doing administrative things, watering the plants."  JA 63.  She also testified that she was  required to prepare daily activity sheets as well as weekly "to  do lists" and summaries of her weekly activities.  See JA 6670, 314, 317, 318.  Although the trial court found that Hanlon  exercised infrequent supervision, Morrison's testimony, the  "to do lists" (Plaintiff's Exhibit 7) and Hanlon's request for a  weekly plan of activities (Plaintiff's Exhibit 11) indicate that  Hanlon exercised more than minimal supervision.  See JA  314, 318.  Supervision need not be frequent under the economic reality test.  See Superior Care, 840 F.2d at 1060. Morrison introduced evidence, including requests for time off,  that tended to show that Hanlon regulated Morrion's hours. JA 67-68, 315, 316.  In fact, Morrison was ultimately fired, in  part, for taking "Monday and Tuesday" off.  See JA 323. The fact that Morrison sometimes worked irregular hours or  that she worked at home does not preclude a finding that she  was an employee under the economic reality test.  Likewise,  Hanlon's absence from the office during the time Morrison  performed her work is largely irrelevant in view of the  restrictions Hanlon otherwise imposed on Morrison's work  schedule.  Hanlon paid Morrison on a daily or hourly basis,  including overtime pay on occasion.  See JA 77, 325-26. Finally, although Morrison was assigned a specific task for July 1995 (the Moldova project), she testified that she continued to perform her "regular duties" and kept working for  IPC after the tour ended on July 21st.  See JA 71-72, 116-17,  328-29, 335.  Based on our review of the record, we conclude  that the district court erroneously granted the appellees'  motion for judgment as a matter of law on all counts of  Morrison's complaint.4

III. Conclusion

16
We affirm the trial court's denial of Morrison's motion for  partial summary judgment as well as the court's evidentiary  ruling.  We reverse, however, its grant of judgment as a  matter of law to the appellees and remand for further proceedings.


17
So ordered.



Notes:


1
 Morrison sued Hanlon as well as IPC because IPC's corporate  charter had been revoked by the District of Columbia for nonpayment of the annual fee.  The charter was not restored by the time  of trial.


2
 Morrison's reliance on the order in Alten v. Ellin & Tucker,  Chartered, 854 F. Supp. 283 (D. Del. 1994), does not carry the day  for her.  In Alten the district court gave preclusive effect to an IRS  assessment based on the taxpayer's wilful failure to meet his tax  obligations. When the taxpayer sought indemnification from his  accountants, the district court granted the defendants' motion for  summary judgment on the ground that one who "wilfully" violates  the law is not entitled, as a matter of law, to indemnification.  Id. at  292.  In giving the IRS assessment preclusive effect, the court  explained that the IRS had acted in a judicial capacity and that the  taxpayer, by choosing to sue for indemnification instead of appealing the IRS assessment, attempted to bypass the prescribed appeal  procedures of the agency.  Id.  The order, however, does not  address the question whether an IRS assessment is entitled to  collateral estoppel effect on the issue Morrison presents.


3
 Whether an individual is an "employee" within the meaning of  the FLSA is a legal question.  See Herman v. RSR Sec. Servs. Ltd.,  172 F.3d 132, 139 (2d Cir. 1999);  Castillo v. Givens, 704 F.2d 181,  185 (5th Cir. 1983).  Nevertheless, "[a]ny subsidiary factual issues  leading to this conclusion are, of course, questions of fact for the  jury."  Castillo, 704 F.2d at 185 n.9.


4
 Moreover, the district court erroneously dismissed count IV of  Morrison's complaint, which sought reimbursement for expenditures she made during the Moldova project. Reimbursement for her  expenses did not depend on her work status at IPC.


