Opinion
NO. C-99-04826 TEH
August 31, 2001
ORDER GRANTING SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff, Dr. Odelia Braun brings this case against the County of San Mateo and Barbara Pletz, administrator of the Emergency Medical Services ("EMS") program. for refusing to hire her for the position of Medical Director of Emergency Medical Services. Plaintiffs claim is based on gender discrimination and retaliation.
The Court has previously addressed two motions to dismiss, granting dismissal on all but four claims. Now before the Court is defendants' motion for summary judgment as to all remaining claims. Plaintiffs extant claims are:
1. Violation of Title VII (Gender Discrimination);
2. Violation of the FEHA (Gender Discrimination);
3. Violation of California Constitution, Article I. section 31 (Gender Discrimination);
4. Violation of 42 U.S.C. § 1983, based upon Retaliation under the First Amendment (against defendant Pletz only).
Also before the Court is plaintiffs cross-motion for summary adjudication on the merits of her statutory gender discrimination claims, on the question of whether the job opening was for an independent contractor, and on defendant Pletz's entitlement to qualified immunity.
On the basis of the oral arguments of counsel for both parties heard on August 20. 2001, and the Court's review of the briefs and accompanying documents submitted by both parties on this motion, and the Court's familiarity with the record in this action, and for the reasons discussed below, the Court GRANTS defendants' motion for summary judgment in its entirety, and DENIES plaintiffs cross-motion for summary adjudication in its entirety.
II. FACTUAL BACKGROUND
In August 1998, the County of San Mateo advertised to fill a part-time position of EMS Medical Director. The advertisement sought a "physician responsible for medical oversight of all aspects of the emergency medical system" with the following qualifications: (1) Board certification in emergency medicine, (2) substantial experience in emergency medicine, and (3) experience in an EMS system. The ad also listed eight categories of job responsibilities. The County classified the EMS Medical Director as an independent contractor position.
Four people applied for the job, and plaintiff was the only female applicant. Each applicant submitted a curriculum vitae ("CV"), and was interviewed separately by a panel consisting of the Director of Health Services for San Mateo County, the EMS Medical Director of Alameda County. and defendant Barbara Pletz, Administrator of the San Mateo County EMS Agency. All four applicants met the basic qualifications. The committee ultimately selected Dr. Karl Sporer, one of the four applicants, and recommended him to the County Board of Supervisors, which ultimately made the hire. Rather than contracting with Dr. Sporer directly, however, the County contracted with his full-time employer, the University of California at San Francisco, to make him available for the County EMS find other than for the moving party. Id. at 322-323. However, on an issue for which her opponent will have the burden of proof at trial, the moving party can prevail merely by "pointing out to the District Court . . . that there is an absence of evidence to support the nonmoving party's case." Id at 325. If the moving party meets its initial burden, the opposing party must then "set forth specific facts showing that there is a genuine issue for trial" in order to defeat the motion. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250.
IV. DISCUSSION
A. Plaintiffs' Claims of Gender Discrimination Against the County
1. Application of the McDonnell Douglas Test to Determine Whether Evidence of Intentional Discrimination Exists
Plaintiffs claims under Title VII, the FEHA, and the California Constitution. Article I sec. 31, are based on a common allegation of gender discrimination. All three claims are against the County only. The standards for proving employment discrimination under Title VII and the FEHA are virtually identical [Godwin v. Hunt Wesson, inc., 150 F.3d 1217. 1220 (9th Cir. 1998)], and Section 31 of Article I of the California Constitution adopts existing state anti-discrimination law. Therefore, the Court will analyze plaintiffs gender discrimination claims under all three laws together.
The burden on summary judgment for a plaintiff asserting disparate treatment under Title VII is to establish aprimafacie case of discrimination and, if the employer articulates a legitimate, nondiscriminatory reason for its actions, to raise a genuine factual issue as to whether the articulated reason was pretextual. Washington v. Garrett, 10 F.3d 1421, 1432 (9th Cir. 1993); Sischo-Nownejad v. Merced Community College, 934 F.2d 1104, 1109-10 n. 7 (9th Cir. 1991), citing McDonnell Douglas, 411 U.S. at 802 (1973). If the plaintiff succeeds in raising a genuine factual issue regarding the authenticity of the employers stated motive, summary judgment is inappropriate, because it is for the trier of fact to decide which story is to be believed.
The Court is mindful of the Ninth Circuit's admonition that "courts should use summary procedures judiciously when intent is an issue; [however,] purely conclusorv allegations of alleged discrimination, with no concrete, relevant particulars, will not bar summary judgment." Forsberg v. Pacfic Northwest Bell Telephone Co., 840 F.2d 1409. 1419 (9th Cir. 1988) [citations omitted]. Thus, while plaintiff is not required to prove her case by a preponderance of the evidence at the summary judgment stage. mere assertions of discriminatory intent are inadequate.
The Court will now proceed to analyze the facts presented by the parties in accordance with the burden-shifting test enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and later elaborated upon in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The first step requires the plaintiff to establish aprimafacie case of discrimination. Ms. Braun does not attempt to show direct evidence of discriminatory motive, instead relying on circumstantial evidence alone. Therefore, plaintiff must show the following: (1) plaintiff belonged to a protected class; (2) plaintiff applied for a job for which he or she was qualified; (3) plaintiff was rejected; and (4) "after his [or her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas, 411 U.S. at 802. While the fourth prong of McDonnell Douglas speaks only of a position remaining open. clearly a position being filled by a member of the opposite sex suffices to satisfy the initial burden of showing a possibility of discriminatory intent. See, e.g., E.E.O.C. v. insurance Co. of North Am., 49 F.3d 1418 n. 1 (9th Cir. 1995) (prima facie case of ADEA violation made where employer hired a younger employee instead of plaintiff); Gomc: v South Bend, 605 F. Supp. 1173, 1176, 1185 (N.D. Ind. 1985).
In order to provide counsel an opportunity to present argument and authorities that the Court found lacking in the briefing, the Court provided counsel with written questions shortly before oral argument, as follow:
1. In evaluating the relative clualifications of plaintiff and Dr. Sporer for the purpose of determining whether defendant's justification for its hiring decision is a pretext for discrimination (i.e. the third step of the McDonnell Douglas test), how should the Court determine the level of disparity between the two applicants' qualifications to demarcate the line between whether to grant or deny summary judgment?
2. Why do you contend that the three factors relied upon by the County in determining which applicant to hire for the EMS Director position are or are not pretextual?
3. Assuming that the three factors are not pretextual, identify citations to the factual record to support your position with regard Dr. Braun's and Dr. Sporer's relative qualifications with respect to each hiring factor.
4. According to the fourth prong of the test for making a prima facie case under McDonnell Douglas, is it sufficient to show that defendant selected a male applicant for the job sought by plaintiff, or must plaintiff show that the position remained un filled?
While defendant objects in general to plaintiff meeting the prima facie test. it does not provide any argument or evidence to challenge any of the four factors. Indeed, it is apparent to the Court that plaintiff easily meets the prima facie test. See Wahis v. JR. Simplot Co.. 26 F.3d 885, 889 (9th Cir. 1994) (burden of proof to establish prima facie case is Zminimal7. Oddly, though, plaintiff argues at length to prove that she has met the fourth factor by showing that the EMS Medical Director position has remained open to this day. According to plaintiff, since the County contracted with UCSF, and because UCSF is an entity that did not apply for the job, none of the four actual applicants was selected. The Court finds plaintiffs argument nonsensical and contrary to the obvious fact that Dr. Sporer is. in fact, doing the job that was advertised, regardless of how his paycheck gets routed. Fortunately for plaintiff. however, her argument is of no import. since the Court finds that Dr. Sporer's hiring satisfies the fourth factor of the prima facie test.
The burden now "shifts to the employer to articulate some legitimate, nondiscriminatory reason for the [plaintiffs] rejection." McDonnell Douglas, 411 U.S. at 802. lfthe employer articulates a legitimate. nondiscriminatory reason for its action, then the employer satisfies the burden of production necessary to rebut the presumption of discrimination raised in the first step. Here, the County contends that the three interview panel members unammously and independently concluded that Dr. Sporer's detailed knowledge of the new County EMS system, his recent experience in the EMS field, especially his clinical experience in a Trauma Center, and his creation of a new computerized patient care data collection system for San Francisco General Hospital, made him the best suited candidate to implement the County's newly configured EMS system. The County emphasizes that EMS has been a rapidly developing field in the past four to five years, and that it needs an EMS Medical Director who is very up-to-date. The County contends that plaintiff, in contrast, lacked comparable recent EMS experience, and that her interview responses were less persuasive than Dr. Sporer's.
Plaintiff argues that defendant's evidence is inadequate to meet its burden of showing a nondiscriminatory basis for the hiring decision. Plaintiff first challenges the declarations of defendant Pletz and the County Health Services director, Dr. Taylor, as being ZselF-serving' and without qualification. Plaintiff argues that neither declarant had "any credentials" and that their testimony is unfounded, and on that basis, in a footnote and without a separately noticed motion, plaintiff moves to strike the declarations. The Court will not entertain a "motion" made in such an offhand manner. Furthermore, it is apparent to the Court that the declarants are qualified to make the statements in the declarations as to their roles in the decision-making process and their subjective evaluations of the candidates, and that the only legitimate question is how much weight to afford those statements.
Plaintiff also challenges the County's asserted nondiscriminatory reasons as being "post-hoc creations," which appeared only after the litigation began. However, this point does not challenge defendant's articulation of a nondiscriminatory reason, but rather belongs analytically in the third stage of the McDonnell Douglas test regarding pretext and therefore will be addressed below.
At oral argument, plaintiffs counsel presented the theory that since the position was not filled by any of the actual applicants, the County's articulation of a nondiscriminatory reason for not hiring plaintiff must fail. Again, the Court finds plaintiffs position analytically flawed and entirely unpersuasive.
In the third step of the McDonnell Douglas analysis the burden shifts back to the plaintiff to demonstrate that the employer's proffered reason is pretextual and "not the true reason" for the employment action. As in most cases, this is the critical step of the analysis. To meet this burden of persuasion, plaintiff must show that the presumptively valid reasons for the adverse employment action were in fact a coverup for discrimination. See Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983).
Thus, the issue is whether plaintiff has submitted sufficient evidence to raise an inference that the decision to hire Dr. Sporer based on his interview and application was a pretext for intentional discrimination based on Ms. Braun's gender. To meet this burden. plaintiff contends that "Title VII does not permit employers discretion to choose a less qualified candidate over a more qualified member of a protected class," citing, without discussion, Burdine, 450 U.S. 248 (plaintiff provides no page reference), and Loeb v. Textron, Inc., 600 F.2d 1003 n. 6 (1st Cir. 1979). This is not quite accurate.
In Burdine, the Supreme Court reversed a lower court ruling that required the defendant to prove that the person hired was more qualified than plaintiff. Burdine. 450 VS. at 259. The Supreme Court stated that "the employer has discretion to choose among equally qualified candidates," and that "[t]he fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose [defendant] to Title VII liability" Id. In Loeb, which is cited with approval in Burdine, the court actually stated;
While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination. The employer's stated legitimate reason must be reasonably articulated and nondiscriminatory, but does not have to be a reason that the judge or jurors would act on or a p prove. . . . An employer is entitled to make his own policy and business judgments, and may, for example, fire an adequate employee if his reason is to hire one who will be even better, as long as this is not a pretext B.R. discrimination.
The reasonableness of the employer's reasons may of course be probative of whether they are pretexts. The more idiosyncratic or questionable the employer's reason, the easier it will be to expose it as a pretext, if indeed it is one. The jury must understand that its focus is to be on the employer's motivation, however, and not on its business judgment.
Loeb. 600 F.2d at 1012 n. 6.
As the Ninth Circuit held in Casillas v. US. Navy, 735 F.2d 338, 344 (9th Cir. 1984). "Title VII does not ensure the best will be selected — only that the selection process will be free from impermissible discrimination." In the analogous context of applying the McDonnell Douglas test in an ADEA case, the Ninth Circuit stated: "The ADEA does not make it unlawful for an employer to do a poor job of selecting employees. It merely makes it unlawful to discriminate . . ." Cotton v. City of Alameda, 812 F.2d 1245, 1249 (9th Cir. 1987).
Thus, the question is not whether plaintiff is more qualified than the other candidates in the abstract or according to what plaintiff, plaintiffs expert, or the Court may think is best — indeed, Dr. Braun's credentials and experience are impressive — but whether plaintiff is significantly more qualified with respect to the criteria actually employed. Id.
Plaintiff submits a declaration from Dr. Howard Michaels, who was the EMS Medical Director of San Mateo County from 1981 to 1984, and is currently EMS Medical Director for four South Bay counties. Based on his review of the CV's of the four candidates, and the deposition transcripts of the interviewers, and his knowledge of the standards issued by the National Association of EMS Physicians, Dr. Michaels opines that "Dr. Braun was much more qualified for the position of EMS Medical Director than all other candidates who applied." In coming to this conclusion, Dr. Michaels notes that he was not aware of the actual criteria relied upon by the committee members. Michaels National. para. 9.
The analysis therefore breaks down into two parts: First. were the actual criteria pretextual, i.e. were they designed to coverup defendant's intent to discriminateZ second. if the criteria were legitimate, were they applied in a manner in which an inference of discriminatory intent can be drawn?
Focusing on the actual criteria employed, defendant emphasizes that it relied principally on the following three factors: (1) recent clinical EMS experience, (2) knowledge of the new County EMS computer information system, and (3) familiarity with the Countx's EMS program. While, as noted above, plaintiff disparagingly characterizes defendant's criteria as post-litigation creations, she fails to provide any evidence to support this position. While plaintiff argues that the advertisement for the position did not specifically contain these criteria, there is no reason why it needed to, and the Court does not find this to be a material disputed fact. Plaintiff also cites deposition testimony to show that the three criteria were not actually used, but the testimony and documents actually show that the interviewers had wide discretion. Thus, the Court finds no material issue of fact upon which to question that the three criteria identified above were the principal ones used in making this hiring decision.
Plaintiff contends that Dr. Pointer admitted that the three decisive factors xvere not considered. However, in the deposition testimony cited by plaintiff Dr. Pointer testified that she "had complete discretion to look at any factors that [she] wanted and considered important in making [her] evaluation." Pointer Depo. at 9:4-7 (Moss National., Exh. 17).
Dr. Michaels opines that the criterion based on recent EMS experience is overemphasized because "[a] responsible physician will keep up with nuances the their field . . .", and that the criterion based on experience with new EMS systems should be downplayed because "little has changed in such practice in the last several years." Michaels National. para. 12. These opinions are conclusory and based on supposition, and therefore will be given no credence. Furthermore, this testimony does not challenge the County's discretion to choose which factors to emphasize, so long as they are acting within reason.
Focusing next on the application of the criteria, defendant argues that on each factor. Dr. Sporer better fit the County's needs based on his CV and his interview responses. Further, defendant argues that while each applicant met the basic qualifications for the job. each had different backgrounds and experiences, so that side-by-side comparison on an issue-by-issue basis would be unhelpful, and would be like "comparing apples and oranges.
Dr. Sporer has been working in the EMS field continuously since 1994, and was the Paramedic Base Hospital Medical Director for San Francisco General Hospital, which is the trauma center for all critically injured patients in the city. He also has been a medical advisor to the S.F. Bay Area Region Poison Control Center, the Chair of the Clinical Advisory Committee of the S.F. EMS Agency, Co-Chair of the Medical Oversight Committee of the S.F. EMS Reconfiguration Team, Course Director for the Urban Emergency Medicine Conference, and has ongoing participation in the Quality Improvement in Trauma Care at San Francisco General Hospital.
In an attempt to give the benefit of the doubt to plaintiff, the Court has taken the myriad points raised by plaintiff regarding the superiority of her experience, and selected the ones apparently relevant to the three criteria, as follows.
1. Recent clinical EMS experience: Plaintiff concedes that there is a gap in her clinical EMS experience between 1995 to 1998. Also, plaintiffs work since 1998 has been at Seton Coastside Hospital, which does not experience the same level of trauma as San Mateo or San Francisco. Dr. Sporer has been continuously involved in clinical EMS work since 1992.
Plaintiffs absence from the EMS field during this period was explained by her counsel at oral argument as being a result of her lawsuit against the City and County of San Francisco. However, plaintiff does not contest the fact that she was absent from the field during this time.
2. Knowledge of the new County EMS computer information system: Dr. Sporer recently created a new computerized patient care data collection system for San Francisco General Hospital, which defendant states is very similar the one it was planning to implement around the time of its search for a new EMS Medical Director. Plaintiff contends that she too has computerized patient care experience, which is certainly true. However, plaintiff fails to explain or provide evidence to show how her experience would contribute to the expressed need of the County, and she fails to contest Dr. Sporer's capacity to contribute to the development of the County's new system. Consequently, while plaintiff raises numerous differences between her background and qualifications and those of Dr. Sporer, none present a material dispute.
3. Familiarity with the County's EMS program: Dr. Braun contends that she has been advocating the changes that have been made to the County's EMS system through publications and national lectures for over a decade. Dr. Sporer, however, had been doing significant work on San Francisco's EMS program, which seems to have interested San Mateo County as a closely analogous model. See, e.g.. Pletz Decl. para. 23-27. As discussed above, while differences in background and qualifications abound, plaintiff does not present a material dispute regarding the County's preference for Dr. Sporer on this factor.
After a careful examination of the entire record, the Court concludes that plaintiff has failed to make a sufficient showing of pretext to justify proceeding to trial. The Court recognizes that it should hesitate before granting a motion for summary judgment where intent is at issue, and that a grant of summary judgment in favor of the employer in discrimination cases is often inappropriate because the evidence will generally contain reasonable but competing inferences of both discrimination and nondiscrimination that must be resolved by a jury. Nonetheless. plaintiff must offer "specific and significantly probative evidence" that the County's proffered justification for refusing to hire her is a pretext. See Schulerv. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9thCir. 1986);Steckl. 703 F.2d at 393 (Title VII plaintiff must produce "specific, substantial evidence of pretext").
Therefore, based on the Court's evaluation of the particular facts presented by the parties in this case, even when viewed in the light most favorable to plaintiff the Court concludes that defendant's motion for summary judgment on the issue of whether it engaged in gender discrimination is GRANTED on plaintiffs First (Title VII). Third (FEFIA). and Fourth (California Constitution) causes of action.
2. The Statutory Exemption for Independent Contractors
In the alternative, defendant moves for summary adjudication of the Title VII and FEHA claims on the ground that neither statute protects independent contractors. Although the Court's ruling above disposes of these claims, the Court will address the independent contractor issue below.
There is no exemption from liability for independent contractors on the cause of action based on the California Constitution, so that claim is not affected by the discussion below.
In our prior Order, the Court ruled that neither Title VII nor the FEHA protects — 17 independent contractors. See Order filed March 23, 2000, at 3-4; see also Mitchell V. Frank R. Howard Memorial Hosp., 853 F.2d 762, 766 (9th Cir. 1988) (Title VI1)Z 5G. Borello Sons, Inc. v. Dept. of Industrial Relations, 48 Cal.3d 341, 349 (1989) (FEHA). As the Court has held, the test set forth in Lutcher v. Musicians Union Local 47. 633 F.2d 880. 883 (9th Cir. 1980), governs the determination of whether a position is of independent contractual status under Title VII, and requires a fact-intensive inquiry that incorporates a "careful analysis of the myriad facts surrounding the employment relationship in question." Order filed March 23, 2000 at 3-4. The Lutcher court held that in distinguishing between employment and independent contractual affihation, lt]he extent of the employer's right to control the means and manner of the worker's performance is a primary factor.Z Lutcher. 633 F.2d at 883. Additional factors include: (1) the kind of occupation, 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 individual in question furnishes the equipment used and the place of work: (4) the length of time during which the individual has worked; (5) the method of payment. whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e. by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "Zemployer"; (9) whether the work accumulates retirement benefits: (10) whether the ZZemployer" pays social security taxes; and (11) the intention of the parties." Lutcher, 633 F.2d at 883 [citations omitted]. This has become known as the "economic realities" test. See, e.g., Nordberg v. Tillamook County Creamery assoc., 74 F. Supp. 1002, 1005 (D. Or. 1999).
In the Court's prior ruling on the second motion to dismiss, the Court held that plaintiff had sufficiently pled barely enough facts to show that the EMS Medical Director position may be one of employment and not for an independent contractor. Order of.June 30. 2000 at 3. Now, on summary judgment, the Court is presented with facts upon which to base a more definitive conclusion.
First and foremost the Court must determine "[t]he extent of the employer's right to control the means and manner of the worker's performance. Lutcher. 633 F.2d at 883: Penland, 1993 WL 204257. Defendant contends, and plaintiff appears to agree, that the EMS Medical Director's primary function is to write medical protocols to be used by emergency personnel in the field. This appears to be a role that could be conducted independently and with little control or supervision, and plaintiff does not provide any significant evidence or argument to the contrary. Plaintiffs only response is that the protocols must be signed by Ms. Pletz before being adopted. However, plaintiff fails to allege or show that anyone other than the EMS Medical Director has a role in the actual work, or that the co-signing is anything more than a formality. Thus, the work itself appears to be largely unsupervised, and this factor weighs heavily in favor of the position being of independent contractual status.
Moving on to the remaining factors under Lutcher and Penland, the Court recognizes a particularly close inter-relationship between the "right to control" test, as discussed above. and the question of whether the job is integral to the employer's purpose. Clearly. the premise of the "Integral nature" factor is "that businesses normally do not rely on independent contractors to perform essential functions." Penland, 1993 WL 204257 at 5. The Court believes, as stated in our previous Order, that it is reasonable to infer that the provision of medical direction for EMS services goes to the core of the County's function. i.e. providing for the health, safety. and welfare of its residents. However, now that the role of the EMS Medical Director has been clarified, the limited function of this position within the overall provision of emergency services leads the Court to give this factor somewhat less weight than in its previous analysis.
With respect to the specialization factor, it remains less than clear to the Court at this point whether the occupation of an EMS Medical Director is more in the nature of work "done by a specialist without supervision," than work "usuallv done under the direction of a supervisor." Lutcher, 633 F.2d at 883. As discussed above, the work can be done largely unsupervised. On the other hand, plaintiff notes that a number of other counties consider their EMS Medical Directors as employees. Thus, the "usual" practice has not been sufficiently developed by the parties, and does not weigh significantly in either direction.
With respect to the tools of the trade, the County appears to furnish an office for the part-time use of a number of employees and/or contractors, which Dr. Sporer shares when he is not at IJC SF. This fact suggests an independent contractor status. While this might be due to Dr. Sporer's principal employment at UCSF. plaintiff provides no evidence to this effect..
With respect to time, the position is half-time for two year terms. Although the position is part-time, the designation of hours for a significant period of time is consistent with an employer-employee relationship, and Dr. Sporer is paid (through UCSF) on a monthly basis.
The manner of termination is not made clear by the parties.
Lastly, the written intention of the parties to the past and present contracts is expressly for an independent contractor relationship. It is now beyond dispute that the contract with Dr. Sporer is for an independent contractor, although the Court is aware. as previously noted. that the parties' own characterizations of the nature of the position are not dispositive. See Borello, 48 Cal.3d at 349.
The Court recognizes both the federal and state legislative goals of giving full remedial effect to Title VII and the FEHA by using a broad definition of `employee' "so as to effectuate the stated purposes of the Act[s]." Penland, 1993 WE 204237 at 3. quoting EEOC v. First Catholic Slovak Ladies Assoc., 694 F.2d 1068, 1070 (6th Cir. 1982). Nonetheless. even viewing the evidence in the light most favorable to plaintiff, the Court concludes that the facts weigh distinctly in favor of the position being for an independent contractor. especially given that the principal task of the job can and is being performed independently and with little or no supervision. Since there is no material cluestion of fact regarding the principal factor of independent performance ofjob tasks, nor with other factors supporting this conclusion, and since the factors in favor of an employer-employee relationship are substantially outweighed. summary judgment is properly within the Court's purview. See Luinia v. Roper Pump Co., 724 F. Supp. 694, 697 (N.D.Cal. 1989) (holding that plaintiff was an independent contractor as a matter of law. and stating: The ultimate question of whether an individual is an employee or an independent contractor is a legal conclusion which involves an application of the law to the facts."); EEOC v. North Knox School Corp.. 154 F.3d 744. 747 (7th Cir. 1998) ("[tlhe ultimate question of whether an individual is an employee or an independent contractor is a legal conclusion"). Hence. summary judgment on First (Title VII) and Third (FEHA) causes of action must be GRANTED. based on the independent contractual nature of the EMS Medical Director position. in addition to the reasons discussed above with respect to the lack of a material dispute regarding discriminatory intent.
B. Plaintiffs First Amendment Retahation Claim Against Defendant Pletz
Plaintiffs Section 1983 cause of action has been narrowed through the Court's previous dismissal orders to a single claim of retaliation against defendant Barbara Pletz. Plaintiff alleges that she had filed and won a previous discrimination suit against a previous employer; that defendant Pletz was a good friend and former employee of an individual defendant in the prior suit; that Ms. Pletz was aware of that suit; that Ms. Pletz harbored resentment against plaintiff and refused to hire plaintiff due to that friendship; and that Ms. Pletz was instrumental in plaintiff not being offered the position with the County. The Court found these allegations "factually thin" at the dismissal stage. and now reviews the facts to determine whether any material disputes exist for a jury to determine.
The facts are now somewhat, though not entirely, more clear than they were at the dismissal stage. Plaintiff had previously sued the City and County of San Francisco. her former employer, for discrimination, and had individually named her supervisor. Dr. Michael Callaham. as a defendant. Plaintiff claims that she was vindicated with a favorable jury verdict, and that the suit is the reason why she could not work during the four years of that litigation. Plaintiff alleges that Ms. Pletz was a friend of Dr. Callaham, and that Ms. Pletz retaliated against plaintiff by sabotaging her application for the EMS Medical Director job to avenge plaintiffs action against Dr. Callaham. Plaintiff asserts that the reliance by Ms. Pletz and the other two committee members on the "recent experience" Factor "is clearly retalitory, because each committee member knew that the reason she had not practiced the previous two years was because of her lawsuit."
Ms. Pletz denies such having a friendship with Dr. Callaham. conceding only a professional relationship, and plaintiff has failed to cite any evidence of what she calls a "long standing relationship." Ms. Pletz also denies any knowledge that Dr. Callaham was a named defendant in that suit, and states that she understood the suit to be an effort by plaintiff to clear her name following allegations of financial improprieties in a former job. Again, plaintiff fails to submit any evidence to show otherwise.
To establish a prima facie case of retaliation, plaintiff must show (1) that she was engaging in a protected activity. (2) that she suffered an adverse employment decision, and (3) that there was a causal link between the protected activity and the adverse employment decision. See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1988). Here, the Court simply cannot agree with plaintiff that material dispute with respect a causal link exists. Plaintiff has shown nothing beyond conjecture to support a linkage between defendant Pletz's professional relationship with Dr. Callaham and general knowledge of a lawsuit, and defendant Pletz's participation in the process whereby plaintiff was denied the EMS Medical Directorjob. Some evidence to support at least an inference of such a link must be presented, yet plaintiff relies purely on conjecture. Thus, plaintiff has failed to show the existence of a genuine dispute of fact in this regard. and, therefore, the motion for summary judgment on plaintiffs Second cause of action under 42 U.S.C. § 1983 is GRANTED.
Because the Court grants summary judgment on the substance of the claim, the Court need not address defendant's motion with respect to the defense of qualified immunity.
CONCLUSION
For the aforementioned reasons, IT IS HEREBY ORDERED that Summary Judgment is GRANTED to Defendants, and that Plaintiffs cross-motion for summary adjudication is hereby DENIED.Accordingly, and with good cause appearing, the clerk is directed to DISMISS this case with prejudice and enter judgment for the Defendants.