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Zhengxing v. Nathanson

August 5, 2002


The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge

Document Nos.: 2, 10, 11, 13, 15, 18




This matter comes before the court on the defendant's motion to dismiss for lack of subject-matter jurisdiction. Faye Zhengxing ("the plaintiff" or "Ms. Zhengxing") brings this action pro se for employment discrimination and wrongful termination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. The defendant is Marc B. Nathanson ("the defendant"), Chairman of the U.S. Broadcasting Board of Governors, named in his official capacity. The plaintiff alleges that she suffered sexual harassment during her employment at the Voice of America, which is part of the International Broadcasting Bureau of the U.S. Broadcasting Board of Governors. She seeks monetary damages, including back pay, compensation for emotional distress, and attorney's fees. The defendant argues that the plaintiff was not an employee and thus was not covered by Title VII. The defendant further contends that the plaintiff failed to exhaust her administrative remedies before initiating this action. The court concludes that since the plaintiff was not an employee, she was not entitled to Title VII protection. Accordingly, the court grants the defendant's motion to dismiss and denies all other pending motions as moot.


In July 2000, the defendant hired Ms. Zhengxing as a Purchase Order Vendor ("POV") with the Mandarin Service, a subdivision of the Chinese Branch of the Voice of America. Compl. at 2; Mot. to Dismiss at 2. This position involved "broadcast related duties" such as announcing, translating news and features, and producing. Mot. to Dismiss at 2, Ex. 2 ("Baum Decl.") ¶ 3. The Mandarin Service also utilizes POVs as information or research assistants to conduct background research for stories, edit English language summaries of the original programs, and perform translations from Mandarin to English. Id. ¶ 3. The defendant initially paid Ms. Zhengxing $60 for each completed order or assignment and increased her rate to $65 per order in 2001. Id. ¶ 3.

Ms. Zhengxing claims she experienced sexual harassment soon after she began working at the Voice of America. Pl.'s Mot. in Opp'n to Mot. to Dismiss ("Pl.'s Opp'n") at 4. She asserts that William Baum, Chief of the Chinese Branch, would meet her in the hallway when she arrived at work and "made eyes" at her on several occasions. Compl. at 3. Ms. Zhengxing alleges that because she refused Mr. Baum's advances, he began to retaliate against her by giving her fewer orders and scrutinizing her work. Id. at 6. She asserts that she auditioned for three TV host positions in February 2001 but was rejected in all three cases. Id. at 7. Ms. Zhengxing alleges that the defendant originally promised her a TV host position and that she considered her employment as a POV to be a temporary assignment. Id. at 2-3. On March 9, 2001, Ms. Zhengxing claims that her assignments changed from editing and translating to downloading the audience's e-mail addresses. Id.

She filed an informal complaint with the Equal Employment Opportunity Commission ("EEOC") on April 13, 2001 and a formal administrative complaint on May 18, 2001. Compl. at 10. The defendant fired Ms. Zhengxing on August 16, 2001. Id. at 13. Ms. Zhengxing claims that "[i]n the letter of termination, there is nothing related to my job performance, or any violation of rules or regulations." Id. She filed her complaint in federal court on February 19, 2002.

On May 24, 2002, the defendant filed a motion to dismiss for lack of subject- matter jurisdiction. The defendant argues that the plaintiff was an independent contractor rather than an employee and therefore cannot bring a claim under Title VII. Mot. to Dismiss at 1. The defendant maintains that the POV position "was not integral or essential to the work of the Voice of America" and that POVs possess specialized knowledge and require minimal supervision. Id. at 15-16. In addition, Mr. Baum insists that he did not directly supervise the POVs and instead reviewed the plaintiff's finished work product. Id. Ex. 2 ("Baum Decl.") at ¶ 9. The defendant also states that it pays POVs by the assignment, that POVs are not eligible for coverage under Federal retirement programs, and that the defendant requires POVs to pay their own Social Security taxes. Id. at 18. The defendant argues that "although Defendant would have provided Plaintiff with a place to work, there is no evidence that the Defendant would really have controlled the manner and means by which Plaintiff performed her work." Id. at 17. The court now turns to the defendant's motion to dismiss.


A. Legal Standards

1. Legal Standard for Motion to Dismiss

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. District of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C. 1987). In evaluating whether subject-matter jurisdiction exists, the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The court need not, however, accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations. E.g., Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Moreover, the court need not limit itself to the allegations of the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 ...

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