Lutfi v. Brighton Community Hosp. Ass'n, No. 00CA0245.

Decision Date10 May 2001
Docket NumberNo. 00CA0245.
Citation40 P.3d 51
PartiesBashar LUTFI, M.D., Plaintiff-Appellant, v. BRIGHTON COMMUNITY HOSPITAL ASSOCIATION, d/b/a Platte Valley Medical Center, Inc.; and John Hicks, individually, as Chief Executive Officer of Platte Valley Medical Center, and as a member of the Board of Platte Valley Medical Center, Defendants-Appellees.
CourtColorado Court of Appeals

Leavenworth & Tester P.C., Sander N. Karp, Julie C. Berquist, Glenwood Springs, CO; Antonio Bates Bernard, P.C., Brian E. Bates, Denver, CO, for Plaintiff-Appellant.

Grund & Breslau, P.C., John W. Grund, Denver CO; Kutak Rock, LLP, Melvin B. Sabey, Denver, CO, for Defendants-Appellees.

Opinion by Judge MARQUEZ.

In this dispute involving his removal from a schedule of physicians providing services in a hospital emergency medical service department (ER), plaintiff, Bashar Lutfi, M.D., appeals the summary judgment in favor of defendants, Platte Valley Medical Center, Inc. (the hospital), and John Hicks, the hospital's chief executive officer. We affirm.

The hospital contracted with Platte Valley Emergency Physicians, Inc. (PVEP), to provide physicians to cover the hospital's ER. That contract contained a provision stating that the hospital could require PVEP to remove a physician from the ER. Plaintiff entered into an arrangement as an independent contractor with PVEP under which PVEP scheduled plaintiff to work in the ER.

While plaintiff was working in the ER, a patient with lacerated fingers came in. Although plaintiff denies it occurred, the patient claimed that plaintiff made him wait an inordinate amount of time for treatment, was rude to him, and finally refused him treatment. Subsequently, Hicks contacted PVEP and required, pursuant to the contract between the hospital and PVEP, that plaintiff be removed from the ER rotation.

Asserting racial and national origin discrimination, plaintiff brought this action alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994 & 1998 Supp.), and also under § 42 U.S.C. § 1981 (1994 & 1998 Supp.). He also asserted claims for tortious interference with his employment agreement with PVEP, breach of agreement contained in the hospital's bylaws, breach of duty of good faith and fair dealing, breach of employment contract, and promissory estoppel. Only the tortious interference and bylaws claims were asserted against Hicks. The trial court granted defendants' motion for summary judgment as to all of plaintiff's claims for relief. This appeal followed.

Summary judgment is appropriate only when the pleadings and supporting documents demonstrate that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Our review of an order granting or denying a motion for summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995)

. We conclude that the summary judgment was appropriate here.

I. Title VII

Plaintiff first contends that the trial court erred in dismissing his national origin discrimination claim under Title VII on grounds that he was an independent contractor. He asserts that he need not establish a direct employer-employee relationship with the hospital to establish liability under Title VII, and that he is an employee for Title VII purposes. We are not persuaded.

A. Title VII Does Not Apply to Independent Contractors

Title VII provides, in pertinent part, that "[i]t shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).

There must, however, be some connection with an employment relationship for Title VII protections to apply. Thus, Title VII protects employees, but does not protect independent contractors. Adcock v. Chrysler Corp., 166 F.3d 1290 (9th Cir.1999). Under Title VII, "employee" is defined as "an individual employed by an employer." 42 U.S.C. § 2000e(f).

Plaintiff relies upon Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), and other cases for the proposition that a nonemployee independent contractor may bring a claim under Title VII.

In recent years, however, federal courts have almost uniformly ruled that a person who is an independent contractor cannot bring a Title VII claim. We find the reasoning of those decisions persuasive. See Schwieger v. Farm Bureau Insurance Co., 207 F.3d 480 (8th Cir.2000)

; Adcock v. Chrysler Corp., supra; Zinn v. McKune, 143 F.3d 1353 (10th Cir.1998); Cilecek v. Inova Health System Services, 115 F.3d 256 (4th Cir.1997)(physician under contract to provide emergency medical services was an independent contractor rather than an employee and thus could not sustain a Title VII action); Alexander v. Rush N. Shore Medical Center, 101 F.3d 487 (7th Cir.1996)(physician could not bring a Title VII claim alleging the hospital's revocation of his staff privileges constituted unlawful discrimination absent proof of an employment relationship, which did not exist because physician was independent contractor); Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270 (5th Cir.1988)(no Title VII claim was proper because independent contractor physician failed to prove existence of an employment relationship with which hospital allegedly interfered); Cobb v. Sun Papers, Inc., 673 F.2d 337 (11th Cir.1982); Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir. 1979); Peck v. Democrat & Chronicle/Gannett Newspapers, 113 F.Supp.2d 434 (W.D.N.Y.2000); Hannon v. Avis Rent A Car System, Inc., 107 F.Supp.2d 1256 (D.Mont.2000). See also 1 A. Larson & L. Larson, Employment Discrimination § 5.22 (1991).

Some state courts also have recognized that Title VII applies to employees and not to independent contractors. See, e.g., Ostrander v. Farm Bureau Mutual Insurance Co., 123 Idaho 650, 851 P.2d 946 (1993)

; Marquis v. City of Spokane, 130 Wash.2d 97, 922 P.2d 43 (1996).

Further, the cases relied upon by plaintiff are distinguishable. In Sibley Memorial Hospital v. Wilson, supra,

the court recognized that in a sex discrimination claim, even in the absence of an employment relationship, a hospital had brought itself within the strictures of Title VII by determining that a female patient should not have a male nurse and thus blocking access of a male private duty nurse to work for a female patient. In Christopher v. Stouder Memorial Hospital, 936 F.2d 870 (6th Cir.1991), a hospital refused to grant a nurse privileges to work in its facility as a private scrub nurse. Because the hospital had allegedly interfered with her access to employment, the nurse stated a claim under Title VII, even though she was not an employee. The court noted she was not an independent contractor with respect to the hospital. In Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291 (11th Cir.1988), an anesthesiologist from Egypt was dismissed from a residency program based on adverse evaluations from a director of a training program and the hospital's decision to bar him from the hospital. The hospital's actions affected the plaintiff's employment with an employer other than the defendant, and the plaintiff stated a claim under Title VII. In Pardazi v. Cullman Medical Center, 838 F.2d 1155 (11th Cir.1988), an Iran-educated medical practitioner was employed by a professional corporation, conditioned upon his becoming a member, with staff privileges, of the hospital. Although he was appointed to the hospital staff, his observation period was extended from four months to one year. Accepting that the plaintiff was not an employee, the court nonetheless concluded that the hospital could be held liable under Title VII if it interfered with the plaintiff's employment opportunities with the professional corporation.

However, there is no indication in those cases of an agreement of the type between the hospital and PVEP requiring removal upon the hospital's request. Here, the hospital acted in accordance with its contract with PVEP. Further, as discussed more fully below, the hospital's action did not affect plaintiff's employment status with PVEP, because plaintiff here was an independent contractor with respect to PVEP, not a PVEP employee. Additionally, those cases do not contradict the proposition that Title VII does not protect independent contractors. See, e.g., Spirides v. Reinhardt, supra

(decision from the same circuit as Sibley Memorial Hospital v. Wilson, supra). Each of those cases is also distinguishable in that they involved defendants who were in a position to influence significantly the plaintiffs' respective employment opportunities. Here, by contrast, there is no evidence that the hospital interfered with plaintiff's employment opportunities with other parties.

We thus conclude that to prevail under Title VII, plaintiff must establish that he was not an independent contractor.

B. Plaintiff Was an Independent Contractor

To determine whether a person is an employee, the Tenth Circuit Court of Appeals has concluded that the skeletal definitions of "employer" and "employee" provided in 42 U.S.C. §§ 2000e(b) and 2000e(f) should be fleshed out by applying common law agency principles to the facts and circumstances surrounding the working relationship of the parties. Although the main focus of this inquiry is whether and to what extent a putative employer has the right to control the means and manner of the worker's performance, other factors inform the analysis, including:

(1) the kind of occupation at issue, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the employer or the employee furnishes the equipment used and the place of work; (4) the length

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