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Strother v. Southern California Permanente Medical Group

filed: March 8, 1996.

GERMAINE D. STROTHER, M.D., PLAINTIFF-APPELLANT,
v.
SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, A CALIFORNIA PARTNERSHIP; GARY A. LULEJIAN, AN INDIVIDUAL; DAVID BRIDGEFORD, AN INDIVIDUAL, DEFENDANTS-APPELLEES. GERMAINE D. STROTHER, M.D., PLAINTIFF-APPELLANT, V. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP; GARY A. LULEJIAN, AN INDIVIDUAL; DAVID BRIDGEFORD, AN INDIVIDUAL; PAUL DEITER, AN INDIVIDUAL, DEFENDANTS-APPELLEES.



Appeals from the United States District Court for the Central District of California. D.C. No. CV-92-5549-RSWL. D.C. No. CV-92-5549-RSWL. Ronald S.W. Lew, District Judge, Presiding. Original Opinion Previously Reported at:,.

Order AND AMENDED OPINION

WIGGINS, Circuit Judge:

Dr. Germaine D. Strother, a physician partner in the Southern California Permanente Medical Group ("Medical Group"), sued the Medical Group and two physician partners in the Medical Group alleging racial discrimination and retaliation under 42 U.S.C. § 1981; racial and gender discrimination and retaliation in violation of the California Fair Employment and Housing Act, Cal. Gov't Code §§ 12900 et seq. ; race discrimination and retaliation in violation of Article I, § 8 of the California Constitution; and arbitrary gender and race discrimination in violation of the Unruh Civil Rights Act, Cal. Civ. Code §§ 51 and 51.5. The district court granted the Medical Group's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on the FEHA discrimination claim, and the Medical Group's motion for summary judgment on all other claims. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part and reverse and remand in part.

FACTS

Strother is an African-American female partner in the Medical Group, which provides medical services in Southern California to members of the Kaiser Permanente Health Plan. From 1985 to the present, Strother has worked as a family practice physician in the Medical Group's West Covina clinic. In 1987, Strother received the title of partner in the Medical Group, and in July 1989 she was appointed Assistant Physician-in-Charge ("APIC") at the West Covina clinic.

The West Covina clinic had historically been a part of the Los Angeles Area of the Medical Group. In 1988-91, the Medical Group expanded its services in the San Gabriel Valley, warranting the creation of a new Baldwin Park service area, which included facilities in West Covina and four other communities. Defendant Gary A. Lulejian was appointed to head this new Baldwin Park Area, first as an acting director, and then as Area Associate Medical Director when the area officially opened in 1992. The Medical Group claims that Lulejian set out to reorganize the clinics within the Baldwin Park Area, which included the elimination of the APIC position and the selection of several "Module Lead" physicians overseeing groups of doctors in each clinic.

Lulejian first met with Strother in December 1989. According to the Medical Group, Lulejian had received numerous negative reports about Strother's performance as APIC. Lulejian shared these perceptions with Strother and offered to help her improve her personal leadership skills, but Strother allegedly failed to acknowledge and address Lulejian's observations. Strother claims that Lulejian told her at the meeting that her APIC position "did not exist," that she should stop attending certain administrative meetings, and that she would not achieve any professional advancement in the Medical Group so long as he had the power to prevent it.

From 1990 through the present, the Medical Group made a series of appointments to administrative and committee positions for which Strother claims she was qualified, including Physician in Charge ("PIC") positions at other clinics and Module Lead positions at West Covina, but for which she was neither considered nor appointed. For its part, the Medical Group asserts that others were more appropriate appointees for these positions because of better interpersonal skills and, in some cases, because of medical specialties more appropriate for the positions. The Medical Group contends that Dr. David Bridgeford, PIC for West Covina and an African-American, found Strother to have an "overbearing and abrasive personality style" which disqualified her for certain leadership positions. Strother twice ran to represent the Baldwin Park Area on the Medical Group's Board of Directors, but received only one and two votes out of 45-50 doctors in each of the elections. Her APIC position was phased out as part of the area reorganization, but Strother continues to serve the Medical Group as a partner in a variety of administrative capacities.*fn1

Starting on May 30, 1991, Strother complained to other partners of the Medical Group, including the Associate Area Medical Director, about the alleged discriminatory promotions and appointments being made by Lulejian. On August 13, 1991, Bridgeford allegedly told Strother that he knew about her complaints and warned that filing a discrimination charge would be against her interests. Strother filed a complaint with the California Department of Fair Employment & Housing on September 12, 1991, alleging violations of Title VII. On September 13, 1991, she was replaced as Personal Physician coordinator. According to Strother, she was later barred from attending several Quality Assurance seminars and committee meetings, and was denied two Quality Assurance positions in 1992. She also alleges that she suffered discrimination and verbal and physical abuse in a number of ways.*fn2

On September 15, 1992, Strother commenced an action in the United States District Court for the Central District of California against the Medical Group and several individual partners, including Lulejian and Bridgeford,*fn3 alleging racial discrimination and retaliation under 42 U.S.C. § 1981; racial and gender discrimination and retaliation in violation of the California Fair Employment and Housing Act, Cal. Gov't Code §§ 12900 et seq. ("FEHA"); race discrimination and retaliation in violation of Article I, § 8 of the California Constitution; arbitrary racial and gender discrimination in violation of the Unruh Civil Rights Act, Cal. Civ. Code § 51 ("Unruh Act"); and related common law claims. In March 1993, the district court granted the Medical Group's 12(b)(6) motion to dismiss Strother's FEHA discrimination claim "on the grounds that [Strother] is a bona fide partner of the medical group and not an employee for the purpose" of FEHA. Strother later added Cal. Civ. Code § 51.5 to her claims, and abandoned several of her common law claims.

On May 25, 1994, the district court granted the Medical Group's motion for summary judgment on all of Strother's remaining claims. The district court held that under Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), Strother's 42 U.S.C. § 1981 claims based on "post-contract formation" treatment prior to November 12, 1991 were untenable, and that insofar as the claim was based on conduct occurring prior to September 15, 1991, it was barred by the applicable one-year statute of limitations. The court held that Strother had "failed to show that there is a genuine issue as to any material fact to support" her FEHA retaliation claim. Because Strother had "not shown that she was denied the ability to enter or pursue her profession," the district court found that her claims based directly on Article I, § 8 of the California Constitution could not lie. Finally, the district court dismissed Strother's claims under the Unruh Act, Cal. Civ. Code §§ 51 and 51.5 because Strother failed to "qualify as a customer, client, or patron of defendant Medical Group."*fn4

Discussion

Strother appeals the district court's decision on her state and federal statutory and state constitutional claims. We reverse the district court's grant of the Medical Group's Rule 12(b)(6) motion on Strother's FEHA claim and remand for further proceedings. We also reverse and remand the district court's grant of summary judgment in favor of the Medical Group on Strother's FEHA retaliation claim and her claim under revised 42 U.S.C. § 1981, insofar as it is based on her treatment after November 12, 1991. We affirm the district court's grant of summary judgment in favor of the Medical Group on Strother's § 1981 claim based on conduct occurring prior to November 12, 1991, her claims under Article I, § 8 of the California Constitution, and her claims under Cal. Civ. Code §§ 51 and 51.5.*fn5

I. Standard of Review

A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995). A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Parks Sch. of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

A grant of summary judgment is reviewed de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S. Ct., 134 L. Ed. 2d 209 (U.S. 1996). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

We review the district court's interpretation of state law under the same independent de novo standard that we review questions of federal law. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S. Ct. 1217, 1221, 113 L. Ed. 2d 190 (1991). "When interpreting state law, federal courts are bound by decisions of the state's highest court. 'In the absence of such a decision, a federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.'" Arizona Elec. Power Coop., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995) (quoting In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990)).

II. Discrimination Under FEHA

Strother challenges the district court's dismissal of her FEHA discrimination claim pursuant to Fed. R. Civ. P. 12(b)(6). Under FEHA, it is unlawful:

For an employer, because of the race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or sex of any person to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions or privileges of employment.

Cal. Gov't Code § 12940(a) (West Supp. 1996). The district court erred in granting the Medical Group's 12(b)(6) motion on Strother's FEHA claim on the ground that Strother, as a bona fide partner in the Medical Group, could not be an employee covered by FEHA.

California authority is of limited assistance in determining whether Strother is protected by FEHA, but does reveal the provision's general purpose. FEHA's broad goal is to forward "the public policy of the state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement" on account of race, sex, or other specifically named characteristics. Rojo v. Kliger, 52 Cal. 3d 65, 801 P.2d 373, 376, 276 Cal. Rptr. 130 (Cal. 1990) (quoting Cal. Gov't Code § 12920). It is to be "construed liberally." Robinson v. FEHC, 2 Cal. 4th 226, 825 P.2d 767, 770 (Cal. 1992) (quoting Cal. Gov't Code § 12993(a)). The California Code of Regulations, which governs the affairs of the Fair Employment and Housing Commission, defines "employee" as "any individual under the direction and control of an employer," and does not explicitly exclude individuals labeled as partners from the definition of employee. Cal. Code Regs. tit. 2, § 7286.5(b) (1995). No California FEHA case has examined whether a "partner" can be characterized as an "employee" entitled to FEHA protection. However, because California courts have interpreted § 12940 in accordance with cases interpreting the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.,*fn6 and the federal Civil Rights Act, 42 U.S.C. §§ 2000e et seq.,*fn7 we look to federal cases in those areas that have addressed whether an individual labeled as a partner can be considered an employee for the purpose of employment discrimination laws.

This circuit has not addressed whether an individual labeled a "partner" can be entitled to the protection of federal employment discrimination laws. A number of other circuits and district courts have examined the issue, finding in some cases that a partner was not entitled to the protection of the federal employment discrimination laws, and finding elsewhere that an individual labeled a "partner" was entitled to the same discrimination protection as other employees. In Fountain v. Metcalf, Zima & Co., 925 F.2d 1398 (11th Cir. 1991), the Eleventh Circuit held that determining whether an individual was a partner or employee required the court to "look to the particular circumstances of the case at hand" and "focus not on any label, but on the actual role played by the claimant in the operations of the involved entity and the extent to which that role dealt with traditional concepts of management, control, and ownership." Id. at 1400-01. The court determined that a member/shareholder of a four-member accounting firm who owned 31% of the firm could not assert an ADEA claim against the firm because he shared in the firm's profits, losses, and expenses; was liable for certain debts and obligations of the firm; and had the right to vote his shares on amendments to the partnership agreement, admission of new members, termination of the agreement, and distribution of profits. Id. at 1401. The court found that Fountain's contention that one of the partners ran the firm in an "autocratic" manner was insufficient to avoid summary judgment because domination by one "autocratic" partner over other partners is not uncommon. Id.

In Wheeler v. Hurdman, 825 F.2d 257 (10th Cir.), cert. denied, 484 U.S. 986, 108 S. Ct. 503, 98 L. Ed. 2d 501 (1987), the Tenth Circuit determined that one of 502 partners in a national accounting firm was not an "employee" entitled to the protection of Title VII, ADEA, or the Equal Pay Act. Id. at 277. Wheeler's partner benefits and responsibilities were similar to those of the partner in Fountain, but she also alleged that she continued to be subject to a great deal of supervision, that the firm was run by an extensive hierarchical structure, and that she made an insignificant contribution to the firm's capital in becoming a partner. Id. at 261-62. The court nonetheless held that the "total bundle of partnership characteristics" was sufficient to differentiate Wheeler from employees covered by federal discrimination laws. Id. at 276. Despite its finding that Wheeler was not an employee, the court cautioned that in some instances an individual labeled a "partner" might actually be an employee. "The bundle of partnership characteristics we have identified may be lacking in important particulars, or there may be some deception which compromises the actuality of those characteristics." Id. at 277.*fn8

Other federal cases have determined that individuals referred to as "partners" were nonetheless entitled to anti-discrimination law protection. In Simpson v. Ernst & Young, 850 F. Supp. 648 (S.D. Ohio 1994), the court held that a "partner" in a large national accounting firm was an "employee" entitled to ADEA protection where the plaintiff "lacked any meaningful control and voting rights in Ernst & Young U.S., did not share in the firm's profits and losses, did not enjoy a fiduciary relationship with the Management Committee members, and had no other ownership rights therein." Id. at 663. The court also noted that "labeling a person 'partner' does not make him so." Id. In Caruso v. Peat, Marwick, Mitchell & Co., 717 F. Supp. 218 (S.D.N.Y. 1989), the court denied a large national accounting firm's motion for summary judgment on a "partner's" ADEA claim. The district court found that it was unclear whether the "partner" played any more than a nominal role in management of the partnership, and whether the provision in the partnership agreement calling for a two-thirds vote of the partnership before he could be required to resign gave him any real job security. Id. at 221-22. Though the "partner" did receive a portion of Peat Marwick's profits as compensation, his compensation was also based on performance, "much like that of a traditional employee." Id. at 222. At trial, the jury determined that Caruso was an "employee" for ADEA purposes. See Caruso v. Peat, Marwick, Mitchell & Co., 779 F. Supp. 332, 333 (S.D.N.Y. 1991).*fn9

The cases discussed above, including those in which the courts found that the "partners" in question were not protected by the federal anti-discrimination laws, reveal that determining whether an individual is an "employee" typically requires a factual inquiry which goes beyond merely the partnership agreement and the "partner" label. Courts must analyze the true relationship among partners, including the method of compensation, the "partner's" responsibility for partnership liabilities, and the management structure and the "partner's" role in ...


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