Opinion
Case No. 1:05-CV-01575-FVS-LJO.
May 3, 2006
Michael F. Ball, # 116328, Randall H. Romero, # 202608, McCormick, Barstow, Sheppard, Wayte Carruth LLP, Fresno, CA, Attorneys for Defendants SAINT AGNES MEDICAL CENTER (Erroneously sued herein as St. Agnes Medical Center).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SAINT AGNES MEDICAL CENTER'S MOTION TO DISMISS UNDER FED. R. CIV. PROC. 12(b)(6)
I. NATURE OF THE CASE
This case involves a claim of racial discrimination brought by a physician against SAINT AGNES MEDICAL CENTER and COMMUNITY MEDICAL CENTERS.
II. SUMMARY OF FACTS
Plaintiff G. SIMON BACHIR, M.D. ("Dr. BACHIR"), a heart surgeon, alleges that he was granted provisional staff privileges at SAINT AGNES MEDICAL CENTER in or about October of 2001, and that he opened his office in February of 2002. (¶¶ 7, 15). He also alleges that he is Syrian and that because he is Syrian, SAINT AGNES MEDICAL CENTER ("SAINT AGNES") subjected him to additional requirements before he was eligible to have full privileges. (¶¶ 9, 10) According to Plaintiff, such requirements were not required of other physicians at SAINT AGNES. (¶ 9).
Dr. BACHIR alleges that the standard for awarding him full privileges at SAINT AGNES was continuously, arbitrarily, and capriciously changed on him, so that he could not achieve that goal. (¶¶ 12, 16). For example, he alleges that in order to advance to active staff status, he had to satisfactorily complete six proctored cases. (¶ 11). Even though he completed 8 such cases with good to excellent results, he was nevertheless not awarded full active status. (¶ 11). Dr. BACHIR alleges that instead of awarding him full privileges, Caucasian doctors and nurses at SAINT AGNES fabricated charges against him because he is Syrian. (¶ 15).
Dr. BACHIR alleges that he complained of the mistreatment, and that his complaints were investigated by the division of cardiac surgery at SAINT AGNES. His cases were allegedly found to have been within the standard of care. (¶ 17).
Next, Plaintiff alleges that he performed another six proctored cases, and that he again requested advancement in March of 2003. (¶ 19). That same month, in March of 2003, Dr. BACHIR was granted provisional privileges at "Central Valley Medical Center" (sic, COMMUNITY MEDICAL CENTERS) (¶ 18, 21). Although Dr. BACHIR successfully completed his cases at "Central Valley Medical Center" (sic, COMMUNITY MEDICAL CENTERS) that facility suspended Dr. BACHIR's privileges within three weeks of his having received them. Dr. BACHIR maintains that his privileges were suspended because of his race, and for no other reason. (¶ 22).
Dr. BACHIR further alleges that physicians and other individuals at SAINT AGNES MEDICAL CENTER conspired with one another. (¶ 23). He also alleges that the chief of staff at SAINT AGNES MEDICAL CENTER used the suspension at "Central Valley Medical Center" (sic, COMMUNITY MEDICAL CENTERS) to delay Dr. BACHIR's advancement to active staff, and that the chief of staff actively solicited surgeons in order to obtain negative opinions about Dr. BACHIR. Ultimately, at a date not disclosed in the Complaint, SAINT AGNES MEDICAL CENTER decided not to advance Dr. BACHIR to active staff status. (¶ 24).
Dr. BACHIR then alleges that while he was in the process of appealing SAINT AGNES MEDICAL CENTER's denial of staff privileges, the hospital imposed yet another condition on him: he would need to have another heart surgeon act as his assistant during any surgical procedures. (¶ 27). The plaintiff alleges that this requirement was implemented with the knowledge that the only surgeons available to fill this role were the very persons who had discriminated against Dr. BACHIR in the first place. (¶ 27). Despite Dr. BACHIR's inability to find a proctor to assist him as required, SAINT AGNES nevertheless continued to insist on the condition. (¶ 31).
Dr. BACHIR alleges that he lost his administrative appeal at SAINT AGNES in August of 2004. (¶ 32). Then, in May of 2005, Dr. BACHIR lost his privileges at COMMUNITY MEDICAL CENTERS "for lack of practice." (¶ 33). Dr. BACHIR states that on September 13, 2005, he received a right to sue letter. (¶ 6). He filed his Complaint in the United States District Court Eastern District on December 12, 2005, naming SAINT AGNES MEDICAL CENTER and COMMUNITY MEDICAL CENTERS.
Dr. BACHIR asserts only one cause of action against defendants, for "Violation of Title VII of the Civil Rights Act of 1964." This cause of action is based on Dr. BACHIR's allegation that he was denied privileges because he is of Syrian descent. (¶ 42).
III. LAW ARGUMENT
Plaintiff's cause of action for discrimination under Title VII fails to state a claim as a matter of law. Simply put, DR. BACHIR, a physician who sought staff privileges at SAINT AGNES MEDICAL CENTER, was an independent contractor and cannot assert a claim for employment discrimination under Title VII.
Nowhere does Dr. BACHIR allege that he was an employee of SAINT AGNES MEDICAL CENTER, or that he was seeking employment at that facility. Indeed, it is readily apparent from the face of his Complaint that Dr. BACHIR was merely seeking to have staff privileges out of the facility, that he had opened his own office, and that he was also seeking privileges at other facilities, such as that operated by co-defendant.
Based on the fact that Dr. BACHIR had no employment relationship whatsoever with SAINT AGNES MEDICAL CENTER and was not attempting to obtain such a relationship, his Title VII discrimination claim fails as a matter of law. Accordingly, the instant Motion to Dismiss should be granted without leave to amend.
A. Legal Standard On 12(b)(6) Motions To Dismiss.
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for failure of the pleading to state a claim upon which relief can be granted. Fed.R.Civ.Pro. 12(b)(6). A motion to dismiss under Rule 12(b)(6) should be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); DeLaCruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). In evaluating a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff and the court must presume all factual allegations of the complaint to be true. Miree v. DeKalb County, Georgia, 433 U.S. 25, 27 n. 2 (1977); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Generally speaking, affirmative defenses should be raised in an answer pursuant to Rule 8(c), not in a motion to dismiss under Rule 12(b)(6). Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). However, an affirmative defense may be raised in a motion to dismiss where the affirmative defense is apparent on the face of the complaint and the defense raises no disputed issues of fact. See Id.; Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 922 F. Supp. 1218, 1225 (D.Nev. 1998); Plessinger v. Castleman and Haskell, 838 F. Supp. 448, 452 (N.D.Cal. 1993) ("For a complaint to be dismissed because the allegations give rise to an affirmative defense, the defense must clearly appear on the face of the pleading and the defense must be complete").
B. Independent Contractors Such As Plaintiff May Not Assert Discrimination Claims Under Title VII.
Congress enacted Title VII of the Civil Rights Act of 1964 to ensure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin. (Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982). Title VII makes it unlawful for an employer to fail or to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. ( 42 U.S.C.S. Sec. 2000e-2(a)(1).
A plaintiff must prove the existence of an employment relationship in order to maintain an action under Title VII of the Civil Rights Act of 1964 ( 42 U.S.C.S. 2000e, et seq.) against a defendant, and independent contractors are not protected by Title VII. (Alexander v. Rush North Shore Medical Center, 101 F.3d 487, 492 (7th Cir. 1996); Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 378, 380 (7th Cir. 1991); accord Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 436, 440 (7th Cir. 1995). In other words, Title VII protects employees, but it does not protect independent contractors. (Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir. 1999); Lutcher v. Musicians Local 47, 633 F.2d 880, 883 (9th Cir. 1980).
Other jurisdictions also refuse to afford independent contractors protection under Title VII. See also Sistare-Meyer v. YMCA (1997) 58 CA 4th 10 [independent contractor cannot sue for wrongful termination of contract in violation of public policy, even when the termination was allegedly based on race];Wortham v. American Family Insurance Group, 385 F.3d 1139, 1141 (8th Cir. 2004)["Independent contractor status is not protected under the ADEA, Title VII, or the ICRA. Employees are protected under these acts."]; Schwieger v. Farm Bureau Insurance Company of Nebraska, 207 F.3d 480, 483 (8th Cir. 2000)[Title VII protects only employees, not independent contractors].
In Alexander, supra, a physician's hospital privileges were revoked when he failed to comply with the hospital's "on call" policy to aid a patient during an emergency. Dr. Alexander, an Egyptian-born Muslim, claimed that the decision to revoke his privileges was based on his religion and national origin, and he filed a Title VII action on that basis. The Court of Appeals dismissed the doctor's action on the ground that a claim under Title VII requires the existence of an employment relationship. (Alexander, at 491-492). It then confirmed that independent contractors are not protected by Title VII. (Alexander, at 492).
Similarly, in Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270 (5th Cir. 1988) a physician brought a title VII action against a hospital when her staff privileges were terminated. The hospital claimed that it had terminated Dr. Diggs' privileges because of the physician's failure to comply with the requirement of sponsor-observation, which was imposed on provisional staff members, and because of concerns over several instances of perceived case mismanagement by the doctor. The physician, who was an African-American woman, filed suit against the hospital, alleging discrimination on the basis of her race and her gender. In affirming the lower court's dismissal of the case, the court held that a prerequisite to a Title VII claim is the existence of an employment relationship. The Court of Appeals specifically noted that Dr. Diggs, like the plaintiff in the instant case, was an independent contractor who was free to use other hospitals.
In James W. Cilecek, M.D. v. Inova Health System Services v. Inova Health System Services, 115 F.3d 256 (4th Cir. 1997), the Fourth Circuit Court of Appeals reached the same result. In that case, Dr. Cilecek provided medical services at two different hospitals. After Dr. Cilicek's rights to practice at the facilities were terminated, he filed suit under Title VII, alleging that he had been discriminated against because of testimony he had given in a sexual harassment case. The Court determined that Dr. Cilicek worked at the hospitals as an independent contractor, and affirmed the dismissal of his Title VII claim for alleged retaliatory termination.
IV. CONCLUSION
For all the foregoing reasons, Defendant SAINT AGNES MEDICAL CENTER respectfully requests that the Court grant this 12(b) (6) motion in its entirety, dismissing this defendant from this lawsuit and without any allowance for leave to amend.