Marianne Dugan, Attorney

OSB # 932563

259 E. 5th Ave., Suite 200-D

Eugene, OR 97401

(541) 338-7072

Fax 866-650-5213

mdugan@mdugan.com

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JAMES M. MURPHY, M.D. CASE NO. 3:14-cv-01498-SI

Plaintiff,

PLAINTIFF'S REPLY IN SUPPORT OF

v. PARTIAL SUMMARY JUDGMENT

TUALITY HEALTHCARE,

Defendant.

Plaintiff submits this reply in support of his motion for summary judgment.

Defendant is correct that the Title VII case law can provide guidance in the USERRA

context. However, as plaintiff explained in his opening brief, USERRA explicitly places even

narrower boundaries upon the situations which will be deemed to be contractor as opposed to

employee relationships. USERRA presumes the parties are in an employee-employer

relationship to an even greater extent than does Title VII.

Whether plaintiff was an employee is not something that can be determined based upon

the labels the parties placed upon the relationship. As the court explained in the USERRA

context in Evans v. Mass. Mutual, 856 F. Supp. 2d 606 (W.D.N.Y. 2012):

In determining whether a plaintiff was an employee or an independent contractor,

courts apply the "economic realities" test, which looks to the actual facts of the parties'

relationship, and not simply to the nomenclature they have used in their written

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agreement. See, e.g., Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 755

(9th Cir. 1979) ("Economic realities, not contractual labels, determine employment status

for the remedial purposes of the FLSA"); Scantland v. Jeffry Knight, Inc., No.

8:09-CV-1985, 2012 WL 1080361, at *6 (M.D. Fla. Mar. 29, 2012) ("Economic reality

controls over labels or subjective intent as to the ultimate issue of Plaintiffs' status as

independent contractors or employees"); Harris v. Attorney Gen'l of the United States,

657 F. Supp. 2d 1, 10 (D.D.C. 2009) ("While contracts manifest the parties' intent, they

do not necessarily reflect 'economic realities'").

Therefore, even if plaintiff had asserted that he was a contractor rather than an employee

(which is not clear), that assertion would not answer that legal question. In his declaration

plaintiff has set forth sufficient facts to create abundant issues of material fact for the factfinder

regarding whether the parties were in an employee-employer relationship. Defendants argue that

plaintiff did not produce "evidence," but a plaintiff's testimony via declaration is generally

sufficient to defeat summary judgment. Fonseca v. Sysco Food Services of Arizona, Inc., 374

F.3d 840, 844 n.2 (9th Cir. 2004). See also Lolli v. County of Orange, 351 F.3d 410, 412 (9th

Cir. 2003) ("unsurprising[]" that officers' version is very different from plaintiff's, in case

involving alleged failure to give medications in jail); Palmer v. Pioneer Inn Associates, Ltd., 257

F.3d 999 (9th Cir. 2003) (overturning summary judgment for employer because plaintiff's own

affidavit was enough to present a prima facie case); Tortu v. Las Vegas Metropolitan Police

Dept, 556 F.3d 1075 (9th Cir. 2009) (reversing JNOV where plaintiff's testicle was injured

during scuffle with airport police, with no explanation except plaintiff's).

Furthermore, defendant's attempt to distinguish Kennedy v. Allied Mutual Insurance Co.,

952 F.2d 262 (9th Cir. 1991), is unavailing. It is true that "[t]he general rule in the Ninth Circuit

is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition

testimony." 952 F.2d at 266 (citing Radobenko v. Automated Equipment Corp., 520 F.2d 540

(9th Cir. 1975)). However, the plaintiff in the instant case has not presented in his declaration

Page 2 - PLAINTIFF'S REPLY IN SUPPORT OF SUMMARY JUDGMENT
facts which are in conflict with facts presented in his deposition testimony. The fact that a party

does not know the legal argument on the facts is not determinative. See Alexander v. Eye Health

Northwest PC, CV05-1632-HU, 2006 U.S. Dist. LEXIS 72282 (D. Or. 2006) at *16-17 (Judge

Hubel rejecting argument that plaintiff should be limited to evidence and arguments she was

aware of at deposition). 

Defendant apparently is relying on the fact that the parties sometimes called their

relationship a "contractor" relationship rather than an "employee" relationship; and that Dr.

Murphy paid his own taxes. But under USERRA give factors are particularly significant

vis-a-vis the economic realities analysis, namely:

(1) the degree of control exercised by the employer over the worker[ ], (2) the

worker['s] opportunity for profit or loss and [his] investment in the business, (3) the

degree of skill and independent initiative required to perform the work, (4) the

permanence and duration of the working relationship, and (5) the extent to which the

work is an integral part of the employer's business.

Evans. Many other factors are relevant, as discussed in plaintiff's opening brief. 

Even looking only at the five factors listed above, as plaintiff explained in his opening

brief, Tuality exercised virtually complete control over the worker; and the worker had no

individualized opportunity for profit or loss, and no investment in the business. Tuality

mandated a full-time schedule and a non-compete provision within Washington County that

prevented plaintiff from operating as a private contractor amongst several employers. 

As for the third factor, as noted in the opening brief, the skill and independent initiative

required of plaintiff were the same as defendant's "employee" anesthesiologist.

Regarding the fourth factor, the forgiveness of the "loan" was predicated on working at

the facility for at least three years, rendering the working relationship more permanent and of

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longer duration than a "contractor" position. 

As for the fifth factor, plaintiff's services were integral to the hospital's operations. 

Plaintiff was recruited to do anesthesia; and without anesthesia services, no surgery services

could be provided. 

Plaintiff's declaration sets forth several material issues of fact regarding whether plaintiff

was an "employee" of defendant, sufficient to present the case to a factfinder. Indeed, plaintiff's

evidence establishes that plaintiff was an employee under the very liberal standard for a

USERRA claim. Plaintiff therefore respectfully requests that the Court deny defendant's motion

for summary judgment and grant plaintiff partial summary judgment on the question of whether

he was an employee.

Respectfully submitted September 14, 2015.

 /s/ Marianne Dugan 

Marianne Dugan, OSB # 932563

Attorney for Plaintiff

259 E. 5th Ave., Suite 200-D

Eugene, Oregon 97401

(541) 338-7072

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