Pooneh Hendi Glascock v. Linn County Emergency Medicine, PC

United States Court of Appeals
For the Eighth Circuit
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No. 12-1311
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Pooneh Hendi Glascock
lllllllllllllllllllll Plaintiff - Appellant
v.
Linn County Emergency Medicine, PC
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: October 16, 2012
Filed: October 31, 2012
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Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.
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MURPHY, Circuit Judge.
Dr. Pooneh Hendi Glascock, a female physician of Iranian origin, contracted
with Linn County Emergency Medicine, PC (LCEM) to provide emergency medical
services at Mercy Medical Center. After LCEM terminated Glascock, she brought
claims under Title VII and the Iowa Civil Rights Act alleging discrimination based on

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sex, pregnancy, and national origin. The district court 1 granted summary judgment
to LCEM, concluding that Glascock could not assert a claim under either statute
because she was an independent contractor, and Glascock appeals. We affirm.
Glascock entered an "Independent Contractor Physician Service Agreement"
with LCEM in May 2007 to work as an emergency room physician at Mercy Medical
Center in Cedar Rapids, Iowa. The agreement was to last one year and renew for an
additional year unless terminated by either party with 90 days notice. It provided that
Glascock would be offered an ownership position in LCEM after one year of
"satisfactory performance" and "upon the approval of the majority of the current
owners." Glascock has stated that it was her "intent and understanding" that she
would become a part owner of LCEM after one year.
LCEM provided professional liability insurance for Glascock but no benefits
or vacation pay. The agreement guaranteed Glascock 15 shifts per month at an hourly
rate of $130. Glascock submitted her monthly availability and scheduling preferences
to LCEM, and LCEM assigned shifts. Glascock was free to trade or give away shifts
without informing LCEM, but she testified that she was "expected to do more than 15
shifts if there [was] a need." She also remained free to engage in other professional
activities and testified that she "maybe once or twice" worked shifts for another
emergency medicine group during the term of her agreement with LCEM. Glascock
filed her own self employment tax returns.
The agreement gave LCEM no "control or direction over the method or manner
by which [Glascock] performs [her] professional services and duties," and Glascock
testified that she was "pretty much on [her] own to carry out . . . emergency services
at Mercy." As the attending physician she selected a patient's chart and reviewed it,
1The Honorable Edward J. McManus, United States District Court Judge for the
Northern District of Iowa.
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determined the appropriate course of action, and then met with the patient. She
received no instruction on how to examine, treat, or diagnose patients. The agreement
provided that Glascock "may be subject to quality assurance review committees" to
ensure compliance with Mercy's rules and regulations. LCEM shareholders also
discussed "opportunities for improvement" with Glascock that set forth objectives she
would need to meet to earn shares in the company.
Glascock alleges that throughout her relationship with LCEM she was subjected
to ongoing sexual harassment by other LCEM physicians. One called her a "princess"
on multiple occasions, another referred to her as "cutie" and "babe," and a third made
disparaging remarks about pregnancy. LCEM shareholders also allegedly made
comments about Glascock's national origin, once referring to Iranians as "sand
people." At the end of Glascock's first year LCEM shareholders voted not to extend
an ownership interest to her but instead gave her a six month probationary term.
Glascock testified that during the last week of her probationary term she told LCEM's
administrator and another of its physicians that she was pregnant. LCEM's
shareholders subsequently voted to terminate her.
Glascock brought claims against LCEM under Title VII, 42 U.S.C. § 2000e et
seq., and the Iowa Civil Rights Act, Iowa Code ch. 216, alleging discrimination on the
basis of sex, pregnancy, and national origin. LCEM moved for summary judgment,
arguing that Glascock was not covered by Title VII or the Iowa statute because she
was an independent contractor. The district court agreed and granted LCEM's motion.
Glascock appeals.
This court reviews de novo a district court's grant of summary judgment. Minn.
ex rel. N. Pac. Ctr., Inc. v. BNSF R.R. Co., 686 F.3d 567, 571 (8th Cir. 2012). On our
review we look at facts in the light most favorable to Glascock and give her the
benefit of all reasonable inferences from the record. Id. Summary judgment is only
appropriate where no genuine dispute exists "as to any material fact and the movant
is entitled to judgment as a matter of law." Id.
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Title VII and the Iowa Civil Rights Act prohibit employment discrimination
based on race, color, religion, sex, or national origin, but independent contractors are
not protected under either statute. Schwieger v. Farm Bureau Ins. Co. of Neb., 207
F.3d 480, 483 (8th Cir. 2000) (Title VII); Loeckle v. State Farm Auto. Ins. Co., 59 F.
Supp. 2d 838, 846 (N.D. Iowa 1999) (Iowa Civil Rights Act). Whether a hired party
is an independent contractor or employee is an appropriate question for summary
judgment. Lerohl v. Friends of Minn. Sinfonia, 322 F.3d 486, 488 (8th Cir. 2003).
To determine whether a hired individual is an employee or an independent
contractor, we primarily consider whether the hiring party was able to "control the
manner and means by which a task is accomplished." Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 323 (1992) (citation omitted); Schwieger, 207 F.3d at 484. We
also consider (1) the skill required, (2) the source of the instrumentalities and tools,
(3) the location of the work, (4) the duration of the relationship between the parties,
(5) whether the hiring party has the right to assign additional projects to the hired
party, (6) the extent of the hired party's discretion over when and how long to work,
(7) the method of payment, (8) the hired party's role in hiring and paying assistants,
(9) whether the work is part of the regular business of the hiring party, (10) whether
the hiring party is in business, (11) the provision of employee benefits, and (12) the
tax treatment of the hired party. Darden, 503 U.S. at 323–24. We finally look to the
"economic realities" of the relationship, Wilde v. Cnty. of Kandiyohi, 15 F.3d 103,
105 (8th Cir. 1994), and the terms of the agreement, Wortham v. Am. Family Ins.
Grp., 385 F.3d 1139, 1140 (8th Cir. 2004).
We note first that the issue of control is less useful in the context of emergency
room physicians than in some other settings because a hospital "must assert a degree
of conflicting control over every doctor's work . . . to discharge its own professional
responsibility to patients," regardless whether the physician is an employee or
independent contractor. Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th
Cir. 1997). To the extent control is relevant, however, the evidence appears
inconclusive in the case before the court. LCEM set Glascock's schedule based on her
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availability and preferences, urged her to attend monthly meetings, and regularly
reviewed her performance. Glascock determined which patients she would see and
conceded that she was "pretty much on [her] own" at Mercy. This court has deemed
the issue of control "inconclusive" elsewhere even when the hiring party provided
training courses, urged its workers to keep regular business hours, and regularly
reviewed its workers' "profitability, dress, and 'attitude.'" Schwieger, 207 F.3d at
484–85. We agree that it is also inconclusive here.
Turning to the Darden factors, we have not required any precise number of
factors to create a genuine issue of material fact as to whether a hired party is an
employee or an independent contractor. Merely showing "some aspects [that] suggest
an employment relationship" is insufficient to survive summary judgment, however.
Schwieger, 207 F.3d at 487. We have previously concluded that a hired party was an
independent contractor as a matter of law when five Darden factors favored that
status, two "weighed slightly toward" it, two "appeared evenly balanced," and three
favored employee status. Id. at 486.
In this case a number of Darden factors support a conclusion that Glascock was
an independent contractor. She received no benefits from LCEM and paid her own
self employment taxes. She was licensed "at her own expense . . . and had been
certified by professional associations," a factor which "weighs heavily in favor of
independent contractor status." Id. at 485. LCEM had no "right to assign additional
projects" to Glascock, and she was permitted to block out shifts, specify her preferred
work schedule, and trade or give away shifts without informing LCEM. The
economic realities and terms of her agreement also lend to a conclusion that Glascock
was an independent contractor. Her agreement lacked "any leave or vacation policy
and . . . could be terminated at will by either party," id. at 486, and it was titled an
"Independent Contractor Physician Service Agreement," see Wortham, 385 F.3d at
1140.
Other factors which might favor employee status in this case are fewer in
number and less in weight than those favoring independent contractor status. The
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agreement between Glascock and LCEM set the "duration of the relationship" at one
year although Glascock testified that she expected to have a long term relationship
with LCEM. Viewed most favorably to Glascock, this fact favors employee status.
Schwieger, 207 F.3d at 485. Glascock also received an hourly wage directly from
LCEM, and LCEM was in the business of providing contract emergency room
physicians to medical centers. The remaining Darden factors, "source of
instrumentalities and tools," "location of work," and "the hired party's role in hiring
and paying assistants," are inapplicable because a third party provided all three.
Mercy provided the equipment and supplies for Glascock to work; Glascock brought
only her own stethoscope.
In sum, control is inconclusive here and the Darden factors point toward
independent contractor status. Moreover, the economic realities suggest that Glascock
was an independent contractor. Like in Schwieger, 207 F.3d at 487, we conclude that
the balance of factors show "an independent contractor arrangement." We therefore
conclude that Glascock was an independent contractor and that the district court did
not err in granting summary judgment to LCEM.
Accordingly, the judgment of the district court is affirmed.
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