FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID E. HENRY, M.D.,

Plaintiff-Appellant,

v.

ADVENTIST HEALTH CASTLE 

MEDICAL CENTER, DBA Castle 

Medical Center,

Defendant-Appellee.

No. 19-16010

D.C. No.

1:18-cv-00046-

JAO-KJM

OPINION

Appeal from the United States District Court

for the District of Hawaii

Jill A. Otake, District Judge, Presiding

Argued and Submitted July 9, 2020

Honolulu, Hawaii

Filed August 14, 2020

Before: John B. Owens, Michelle T. Friedland,

and Ryan D. Nelson, Circuit Judges.

Opinion by Judge Owens
2 HENRY V. ADVENTIST HEALTH CASTLE MED. CTR.

SUMMARY*

Employment Discrimination

The panel affirmed the district court’s grant of summary 

judgment in favor of the defendant in a Title VII action 

brought by a surgeon who provided on-call service in a 

hospital emergency department.

The panel held that Title VII did not protect the surgeon 

because he was an independent contractor, not an employee 

of defendant Adventist Health Castle Medical Center. The 

panel considered the surgeon’s payment arrangement, his 

limited obligations to Castle, and his description as an 

independent contractor in the parties’ contracts. The panel 

concluded that other factors, including the surgeon’s high 

skill level, Castle’s provision of assistants and medical 

equipment, and its mandatory professional standards, did not 

weigh strongly in the surgeon’s favor.

COUNSEL

John Winnicki (argued) and Dennis W. King, Deeley King 

Pang & Van Etten, Honolulu, Hawaii, for PlaintiffAppellant.

Brian W. Tilker (argued), J. George Hetherington, and Erik 

A. Rask, Torkildson Katz Hetherington Harris & Knorek,

Honolulu, Hawaii, for Defendant-Appellee.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
HENRY V. ADVENTIST HEALTH CASTLE MED. CTR. 3

OPINION

OWENS, Circuit Judge:

Dr. David Henry appeals from the adverse grant of 

summary judgment against his Title VII lawsuit. We have 

jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

A. Henry and His Relationship with Castle1

Henry, a white male, is a board-certified general and 

bariatric surgeon licensed to practice medicine in Hawaii. 

He joined the staff of Adventist Health Castle Medical 

Center (“Castle”) in 2015, and, with clinical privileges, 

performed surgeries at Castle’s facility located in Kailua, 

Hawaii.

Henry entered into two agreements with Castle: (1) the 

Physician Recruitment Agreement (“Recruitment 

Agreement”), and (2) the Emergency Department Call 

Coverage and Uninsured Patient Services Agreement (“OnCall Agreement”). The Recruitment Agreement provided 

that Henry would operate a full-time private practice of 

medicine. The On-Call Agreement obligated Henry to five 

1 The facts summarized below are undisputed. Henry supports his 

arguments on appeal with facts from his post-judgment declaration that 

were not part of the summary judgment record. In reviewing orders 

granting summary judgment, we limit our review to the facts before the 

district court at the time it made its ruling. See Kirshner v. Uniden Corp., 

842 F.2d 1074, 1077–78 (9th Cir. 1988) (explaining that documents 

submitted to the district court after it made the ruling challenged on 

appeal are excluded from the record). Therefore, we do not consider 

Henry’s post-judgment declaration in assessing whether summary 

judgment was appropriate.
4 HENRY V. ADVENTIST HEALTH CASTLE MED. CTR.

days of on-call service in Castle’s emergency department per 

month. Both agreements set forth that Henry “shall at all 

times be an independent contractor.”

While on call, Henry was not required to be present at 

Castle’s facility unless an emergency intervention was 

needed. If he arranged backup emergency coverage, he 

could use that time to perform elective surgeries instead. 

Henry also leased space from Castle for elective surgeries on 

non-Castle patients. Henry was not required to refer his 

general surgery patients to Castle. In addition to his bariatric 

surgeries at Castle, he undertook non-bariatric surgeries at a 

competing hospital, where he also had clinical privileges.

Castle decided which surgical assistants would support 

Henry, supervised their performance and pay, and 

determined which medical record system would be used for 

care provided at Castle. It also required Henry to comply 

with its “Code of Conduct,” “Corporate Compliance 

Program,” and other regulations and bylaws.

Castle paid Henry $100 per 24-hour on-call shift if there 

was no emergency intervention, or $500 for each emergency 

that he handled. It issued Henry a 1099 tax form (an IRS 

form for independent contractor income)—never a W-2 (an 

IRS form for employee income). He reported his Castle 

earnings (which were only 10% of his 2016 income) on a 

Form 1040, which self-employed individuals use. Castle did 

not provide him any employee benefits, such as medical 

insurance or retirement.

B. Procedural History

Henry complained of discrimination at Castle, which 

initiated a review of his past surgeries. This assessment led 

to his precautionary suspension, and, later, Castle’s Medical 
HENRY V. ADVENTIST HEALTH CASTLE MED. CTR. 5

Executive Committee recommended that Henry’s clinical 

privileges be suspended until he completed additional 

training and demonstrated competency in various areas of 

concern. After an internal appellate process upheld the 

suspension, Henry filed suit in February 2018 for alleged 

violations of Title VII of the Civil Rights Act of 1964, 

42 U.S.C. § 2000e-2 (“Title VII”), for racial discrimination 

and retaliation.2

Castle moved for summary judgment, arguing that 

because Henry was an independent contractor, and not an 

employee, he did not enjoy Title VII’s protections. See 

Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir. 

1999) (“Title VII protects employees, but does not protect 

independent contractors.”). After oral argument, the district 

court granted that motion. It highlighted how Henry was 

paid, his lack of typical employee benefits, and his tax 

treatment, as well as how both contracts characterized his 

status as an independent contractor and his ability to work at 

competing hospitals. While some factors weighed in 

Henry’s favor—including how Castle handled the 

management of assistants and the high skill level and tools 

required to perform his surgeries—most of the evidence 

pointed towards Henry being an independent contractor.

2 Henry was “pro se” until local counsel appeared on his behalf the 

day before the summary judgment hearing was initially scheduled. But 

it soon became clear that separate mainland counsel (who was not 

admitted in Hawaii) had been, at least to some degree, ghostwriting 

Henry’s submissions since the complaint’s filing.
6 HENRY V. ADVENTIST HEALTH CASTLE MED. CTR.

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s decision to grant 

summary judgment. Folkens v. Wyland Worldwide, LLC, 

882 F.3d 768, 773 (9th Cir. 2018). Summary judgment is 

appropriate only if “there is no genuine dispute of material 

fact” after “viewing the evidence in the light most favorable 

to the nonmoving party.” Id. (citation omitted). Whether an 

individual is an employee under Title VII is a question of 

law, assuming the material facts are undisputed. See 

Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 

1469 (9th Cir. 1983), overruled on other grounds by Garcia 

v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); 

see also Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 

261 (4th Cir. 1997).

B. Henry Was Not an Employee of Castle

To determine if an individual is an employee under 

Title VII, we evaluate “the hiring party’s right to control the 

manner and means by which the product is accomplished.” 

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 

(1992) (citation omitted); see also Murray v. Principal Fin. 

Grp., Inc., 613 F.3d 943, 945 (9th Cir. 2010).3 A nonexhaustive list of factors we consider include:

3 Henry appears to argue the economic realities test should apply. 

We explained in Murray that there is “no functional difference” between 

the economic realities test and the Supreme Court’s common-law test in 

Darden, and to the extent there is one, the Darden analysis controls. 

613 F.3d at 945. Thus, we limit our discussion to the Darden

formulation.
HENRY V. ADVENTIST HEALTH CASTLE MED. CTR. 7

- the skill required;

- the source of the instrumentalities and 

tools;

- the location of the work;

- the duration of the relationship between 

the parties;

- whether the hiring party has the right to 

assign additional projects to the hired 

party;

- the extent of the hired party’s discretion 

over when and how long to work;

- the method of payment;

- the hired party’s role in hiring and paying 

assistants;

- whether the work is part of the regular 

business of the hiring party;

- whether the hiring party is in business;

- the provision of employee benefits; and

- the tax treatment of the hired party.

Darden, 503 U.S. at 323–24 (citation omitted); see also

Restatement (Second) of Agency § 220 (1958). These 

factors confirm what the district court concluded—Henry 

was an independent contractor, not an employee.
8 HENRY V. ADVENTIST HEALTH CASTLE MED. CTR.

First, we follow the money. Castle paid Henry for his 

on-call time—$100 per shift, or $500 per emergency 

intervention—which only accounted for 10% of his 

earnings. This arrangement is emblematic of an independent 

contractor relationship. See Cilecek, 115 F.3d at 261 

(concluding that physician was an independent contractor in 

part because physician’s hours varied, and he did not receive 

a uniform salary). Henry did not receive any typical 

employee benefits from Castle. See id. (holding that 

doctor’s lack of employee benefits weighed in favor of 

independent contractor status); Alexander v. Rush N. Shore 

Med. Ctr., 101 F.3d 487, 493 (7th Cir. 1996) (same). Henry 

and Castle reported Henry’s earnings to the IRS not as if 

Henry were a Castle employee, but as if he were an 

independent contractor. Castle issued him a 1099 tax form, 

not a W-2. See Shah v. Deaconess Hosp., 355 F.3d 496, 500 

(6th Cir. 2004) (holding that doctor was an independent 

contractor in part because he never received a W-2); Cilecek, 

115 F.3d at 261 (holding that doctor was an independent 

contractor in part because he was taxed like one). And 

Henry reported his Castle earnings on a Form 1040 for selfemployed individuals. See Murray, 613 F.3d at 946 

(concluding that insurance agent who reported as selfemployed to the IRS was an independent contractor);

Alexander, 101 F.3d at 493 (concluding the same for doctor). 

We agree with our sister circuits’ assessment of these 

factors. Henry was paid, taxed, and received benefits like an 

independent contractor, and these factors weigh in favor of 

treating him as one.

Second, Henry’s obligations to Castle were limited, 

providing him the freedom to run his own private practice. 

This arrangement is inconsistent with employee status. 

Henry was required to be on call in Castle’s emergency 

department only five days per month, and under the On-Call 
HENRY V. ADVENTIST HEALTH CASTLE MED. CTR. 9

Agreement, Castle was required to prioritize Henry’s 

obligations when scheduling him. Henry was free to be 

elsewhere during his on-call shifts unless an emergency 

arose, and he could perform elective surgeries during his 

shifts if he coordinated backup coverage—both of which are 

consistent with independent contractor status. See Barnhart 

v. N.Y. Life Ins. Co., 141 F.3d 1310, 1313 (9th Cir. 1998) 

(determining insurance agent was an independent contractor, 

as he “was free to operate his business as he saw fit without 

day-to-day intrusions”); see also Murray, 613 F.3d at 946 

(insurance agent, like in Barnhart, was free to “decide[] 

when and where to work, . . . maintain[ed] her own office, 

where she [paid] rent,” and “schedule[d] her own time off”). 

Henry also leased Castle space for elective surgeries on his 

own patients, performed general surgeries at a competing 

hospital, and could refer his patients to any hospital of his 

choosing. Employees normally do not have this level of 

work freedom. See Shah, 355 F.3d at 500 (concluding 

doctor was an independent contractor where he treated his 

own patients, engaged with other hospitals, and did not have 

to accept patients referred to him from the hospital); Cilecek, 

115 F.3d at 261 (“Cilecek had freedom to do other work, not 

only for himself but also for other health care facilities[.]”). 

In sum, Henry’s duties do not exhibit the level of control 

present in employment relationships, but rather evidence 

Henry’s professional independence from Castle in treating 

his patients. See Alexander, 101 F.3d at 493 (concluding 

anesthesiologist was an independent contractor “because the 

details concerning performance of the work remained 

essentially within the [doctor’s] control” (citation omitted)).

Third, the contracts between Castle and Henry described 

him as an independent contractor, a fact that our court and 

others have found significant. See Barnhart, 141 F.3d 

at 1313 (“The contract Barnhart signed contained clear 
10 HENRY V. ADVENTIST HEALTH CASTLE MED. CTR.

language stating that Barnhart would be considered an 

independent contractor, not an employee.”); Cilecek, 

115 F.3d at 261 (“The parties expressly set out from the 

beginning to create an independent contractor 

relationship[.]”).

In arguing that he was an employee, Henry cites the high 

skill level that his surgeries require, Castle’s provision of 

assistants and medical equipment, and Castle’s mandatory 

professional standards as factors weighing strongly in his 

favor. In certain lines of work, these facts might be 

persuasive. Yet, as our sister circuits have observed, in the 

physician-hospital context, “[t]he level of skill required, 

location of the work, and source of equipment and staff are 

not indicative of employee status because all hospital 

medical staff are skilled and must work inside the hospital 

using its equipment.” Alexander v. Avera St. Luke’s Hosp., 

768 F.3d 756, 763 (8th Cir. 2014). As the Tenth Circuit 

explained, “[w]hen a physician shows up to work in today’s 

world—either as an independent contractor or a full-fledged 

employee—he no longer is likely to carry all relevant 

medical instruments in a black satchel.” Tsosie v. United 

States, 452 F.3d 1161, 1164 (10th Cir. 2006). “Instead, it is 

expected that he will make full use of the hospital’s physical 

facilities during the course of his service.” Id.4

It is also no surprise that Castle subjected Henry to 

regulations, as hospitals are responsible for maintaining a 

4 See also Diggs v. Harris Hosp.-Methodist, Inc., 847 F.2d 270, 273 

(5th Cir. 1988) (concluding physician was an independent contractor 

because “[w]hile the hospital supplies the tools, staff and equipment 

utilized by Diggs in delivering medical care at the hospital, and while it 

imposes standards upon those permitted to hold staff privileges, the 

hospital does not direct the manner or means by which Diggs renders 

medical care”).
HENRY V. ADVENTIST HEALTH CASTLE MED. CTR. 11

certain standard of care and safety for their patients. As the 

Fourth Circuit has recognized, “[i]f the hospitals did not 

insist on such details in the performance of professional 

services by doctors at their facilities, they would be exposing 

themselves to recognized professional liability.” Cilecek, 

115 F.3d at 262; see also Wojewski v. Rapid City Reg’l 

Hosp., Inc., 450 F.3d 338, 344 (8th Cir. 2006) (noting 

hospital “could take reasonable steps to ensure patient safety 

and avoid professional liability” and that such steps did not 

turn all affected doctors into employees). Thus, rather than 

evidencing a right to control the manner and means of 

Henry’s practice, the regulations reflect a shared 

“professional responsibility to cooperate with the hospitals 

to maintain standards of patient care, to keep appropriate 

records, and to follow established procedures.” Cilecek, 

115 F.3d at 262. They are therefore consistent with an 

independent contractor relationship.

Henry heavily relies on Mitchell v. Frank R. Howard 

Memorial Hospital, in which this court held that a physician 

had sufficiently pled a Title VII claim. 853 F.2d 762, 766–

67 (9th Cir. 1988). Notably, Mitchell was decided on a 

motion to dismiss under the now abrogated “no set of facts” 

standard. Id. at 766 (quoting Conley v. Gibson, 355 U.S. 41, 

45–46 (1957), abrogated by Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007)). Further, the physician alleged that she 

treated the hospital’s patients (not her own), she did not work 

at any other hospital, and the hospital paid her 40% of the 

department’s gross receipts—which was enough to support 

the claim at the motion to dismiss stage that the hospital 

controlled the manner and means of her performance. Id.

at 766–67. Unlike in Mitchell, Henry treated his own 

patients in addition to Castle’s patients, had clinical 

privileges at another hospital, and only received 10% of his 
12 HENRY V. ADVENTIST HEALTH CASTLE MED. CTR.

compensation from Castle. Thus, Mitchell, a very different 

case, does not help Henry.

Henry also points to Salamon v. Our Lady of Victory 

Hospital, in which the hospital intensively reviewed nearly 

all the physician’s cases on a continuous basis over several 

years as part of an escalating course of performance reviews. 

514 F.3d 217, 230–31 (2d Cir. 2008). Not only did the 

hospital monitor her patient treatment outcomes, it mandated 

the performance and timing of certain procedures, dictated 

which medicines to prescribe, and recommended practice 

changes based on financial impact. Id. While the Second 

Circuit noted that hospital peer review programs often “do 

not constitute exercises of control over the manner and 

means of physician practice,” it held that “a reasonable factfinder could conclude from the present record that the 

quality assurance standards extended beyond mere health 

and safety concerns or ensuring [the physician’s] 

qualifications.” Id. at 231.

Here, Castle did not even approach the level of 

micromanagement detailed in Salamon. For example, while 

Henry explained that Castle controlled how he inserted chest 

tubes and when to perform laparoscopic surgery, those 

standards relate to “health and safety concerns.” Id. He fails 

to identify anything in his case “beyond mere health and 

safety concerns,” such as the considerations that drove the 

decision in Salamon. Id. Thus, unlike in Salamon, Henry 

did not create a genuine issue of material fact as to whether 

the peer review process created an employment relationship.

On balance, the undisputed facts clearly show that Henry 

was Castle’s independent contractor and thus not entitled to 
HENRY V. ADVENTIST HEALTH CASTLE MED. CTR. 13

Title VII protections. The district court properly granted 

summary judgment.5

AFFIRMED.

5 Henry raises several other issues on appeal, but each lacks merit. 

First, the district court did not abuse its discretion in denying Henry’s 

request for a continuance to conduct further discovery and/or supplement 

the record under Federal Rule of Civil Procedure 56(d) and (e), as Henry 

failed to “identify by affidavit the specific facts that further discovery 

would reveal, and explain why those facts would preclude summary 

judgment.” SEC v. Stein, 906 F.3d 823, 833 (9th Cir. 2018), cert. denied, 

140 S. Ct. 245 (2019) (internal quotation marks and citation omitted). 

Second, the district court did not abuse its discretion in denying Henry’s 

motion for reconsideration under Federal Rule of Civil Procedure 59(e) 

because the motion and Henry’s belated declaration improperly 

attempted to introduce additional evidence that “could reasonably have 

been raised earlier in the litigation.” Kona Enters., Inc. v. Est. of Bishop, 

229 F.3d 877, 890 (9th Cir. 2000). Lastly, the district court did not abuse 

its discretion in denying Henry’s motion to amend his complaint to add 

new claims: “once judgment has been entered in a case, a motion to 

amend the complaint can only be entertained if the judgment is first 

reopened under a motion brought under Rule 59 or 60.” Lindauer v.

Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996).