Ninth Circuit: Public Sector Independent Contractor Has No Property Interest and No Section 1983 Claim

42 U.S.C. Section 1983 allows public sector workers to challenge certain government employer action against public sector workers. The law permits state employees to challenge deprivations of due process or equal protection that amount to violations of the constitution.  But to use Section 1983, the employee must demonstrate a property right or liberty interest that the government employer deprived.  Many civil service workers are employed under conditions that virtually guarantee them a job that cannot end without sufficient cause.  Section 1983 lawsuits involving employment actions often are predicated on that sort of employment relationship.

The 9th Circuit Court of Appeals in Blantz v. California Dept. of Corr. and Rehab. considered Blantz's claim that the 14th Amendment protected her engagement as an independent contractor.  Here are the facts as stated by the court:

In July 2006, Blantz entered into a written agreement with Newport Oncology and Healthcare, Inc. (NOAH) to work as a nurse practitioner for the CDCR. The CDCR contracts with NOAH to identify available healthcare professionals and refer them to the CDCR to work in medical facilities owned by the CDCR throughout California. Blantz agreed with NOAH to provide medical services to the CDCR as an independent contractor. Pursuant to the agreement, Blantz’s wages would be paid by NOAH, not by the CDCR.

The CDCR ended the engagement without explanation.  Blantz then tried to obtain a new job with CDCR, but her references did not pan out.  So, she sued CDCR and officials under Section 1983, claiming that her independent contractor arrangement could not be ended without due process (e.g., a hearing and notice of the reasons etc.).

Blantz claimed that CDCR conferred a property right to her independent contractor arrangement by documents that CDCR gave her at orientation. But CDCR's contract with NOAH said CDCR could request her removal essentially at will.

The district court dismissed her case, and the Ninth Circuit affirmed.  The court would not decide whether an independent contractor - rather than an employee - could every have a 14th amendment interest in due process related to her engagement.  The court explained why Blantz's claim failed:

We hold that a state agency does not create constitutionally protected property interests for its independent contractors simply by instituting performance review procedures. Even assuming independent contractors can ever have constitutionally protected property interests in their positions, something more is required: either an affirmative grant of tenure or a guarantee from the government that termination can occur only for cause. Absent such assurances, there is no cognizable basis for an independent contractor to assert an entitlement to her continued position that is constitutionally protected. Because Blantz’s orientation documents did not contain such assurances, we affirm the district court’s dismissal of Blantz’s federal deprivation of property claim.

The court then rejected Blantz's claim that a poor reference deprived her of "liberty" when she was unable to obtain a new position with CDCR. 

the defendants here are not alleged to have precluded Blantz from all government employment, only employment with the CDCR. Blantz allegedly has been barred from employment with one division of the state government; but she is free to seek other nursing positions with the state. Thus, she has not alleged an unconstitutional deprivation of liberty.  See Llamas, 238 F.3d at 1128 (holding that the government had not deprived plaintiff of liberty when plaintiff was barred from future employment with one community college district, but was  free to pursue employment elsewhere).

This case is Blantz v. California Dept. of Corr. and Rehab. and the opinion is here.

 

SV Makes Some Law: No Section 1983 Claims Based on ADA

It's nice to blog about one of your own cases, and even better when it's a victory.  So, Josephine Okwu was a Caltrans employee, who agreed to disability retirement status.  She then wanted to be reinstated from disability retirement status to her former job. Denied, she was unsuccessful under civil service procedure. She then sued CalPERS and Caltrans officials in federal court under 42 U.S.C. Section 1983 for violation of her civil rights.

She had to rely on Section 1983, she believed, because she could not sue her employer, Caltrans, under the Eleventh Amendment.  She could not sue CalPERS, either.  She could not use the ADA to sue the individuals in any court, because individuals cannot be held liable under the ADA.

The district court dismissed the case because Section 1983 cannot be used as a substitute claim for ADA claims that are not viable in federal court. The Ninth Circuit affirmed:

We conclude that Congress’s inclusion of a comprehensive remedial scheme in Title I of the ADA precludes § 1983 claims predicated on alleged violations of ADA Title I substantive rights. We also conclude that Okwu’s allegations of fact do not state a claim under the Equal Protection Clause. We therefore affirm.

The case is Okwu v. McKim and the opinion is here.