Opinion
No. C 01-4207 JL
September 4, 2002
DISMISSAL
INTRODUCTION
Defendant's Motion to Dismiss under Rule 12(b)(6), Federal Rules of Civl Procedure, [Document Number 18 in the court's docket], came on for hearing on September 4, 2002. Plaintiff appeared in propria persona. Kristin Oliveira, PHILLIPS, SPALLAS FOTOUCHI, appeared for Defendant. The court considered the moving and opposing papers and the arguments of the parties and hereby grants the motion, dismissing Plaintiff's complaint with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff states in her complaint that she worked as an independent contractor for Defendant in the Cosmetics Department of the Neiman Marcus store in Palo Alto. Plaintiff alleges that Defendant failed to hire her as an employee, failed to promote her, and terminated her services as an independent contractor. Plaintiff alleges that she was harassed for years because of her strong personality, her spiritual belief system, and for being educated, talented, sophisticated and attentive to details. She filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in June 2001. Plaintiff received a right-to-sue letter from the EEOC on September 28, 2001 and filed this lawsuit on November 9, 2001. On May 22, 2002 this court granted Defendant's previous motion to dismiss but granted Plaintiff leave to amend her complaint, advising her to include in her amended complaint factual details of the conditions of her employment sufficient to provide evidence that 1) she was an employee of Defendant, rather than an independent contractor and 2) that she suffered discrimination as a member of a protected class.
LEGAL ANALYSIS AND CONCLUSION
Rule 12(b)(6), Federal Rules of Civil Procedure, provides that failure to state a claim upon which relief can be granted may be an affirmative defense. Defendant asserts as its defense that (1) Plaintiff fails to allege employment discrimination by Defendant because Plaintiff was not an employee; (2) Plaintiff fails to show employment discrimination under Title VII of the Civil Rights Act; and (3) Plaintiff fails to establish a basis for violation of her civil rights under 42 U SC. § 1983.
In order to come under the protection of federal and state discrimination statutes, a plaintiff must demonstrate the existence of an employment relationship. Dutson v. Farmers Ins. Exchange, 815 F. Supp. 349, 351 (D.Or. 1993), citing Jenkins v. Travelers Ins. Co., 436 F. Supp. 950 (D.Or. 1977). The extent of the employer's right to control the means and manner of the worker's performance is a primary factor. Lutcher v. Musicians Union Local 47, 633 F.2d 880 (1980). In her amended complaint Plaintiff yet again concedes that she was hired as an independent contractor selling fragrances on behalf of various vendors at the Neiman Marcus store. She describes the vendors, not Neiman Marcus, as her employers. The vendors set her hours and work restrictions and the vendors paid her. (Amended Complaint at p. 3). She complains of treatment by Creed Fragrances, Estee Lauder, LaPerla Fragrances, Saks Fifth Avenue, Nordstrom and Macy's. (Amended Complaint at pp. 4-5). None of these companies are Defendants in the case at bar. Nowhere does Plaintiff contend that she was employed by Defendant. Consequently, she cannot sustain a cause of action for employment discrimination.
To prove discrimination under Title VII of the Civil Rights Act, Plaintiff must show that she: 1) belonged to a class protected by Title VII, 2) was qualified for the position in question, and 3) suffered an adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973). She contends that "throughout the 1990's" she attempted numerous times to obtain employment at Neiman Marcus. She provides no specifics regarding an application, only her resume, reference letters and copies of her cosmetologist's license. In further support of this contention she recites injustices she has suffered at the hands of employees of Macy's and I. Magnin. With respect to Defendant's actions, Plaintiff states that she received "bad references" because she was `too strong' and "Too aggressive." (Amended Complaint, 3:15-24). She asserts that Defendant did not interview her because of those personality traits and because she was perceived as too aggressive. (Id. 3:22-4:1). Even if true, these allegations do not support a cause of action for discrimination under Title VII of the Civil Rights Act, because they fail to establish Plaintiff's membership in any protected group.
Title VII's central provisions make it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion . . ." §§ 703(a)(1), 42 U.S.C. § 2000e-2(a)(1). Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63, (1986). Plaintiff claims she was discriminated against as a Muslim woman: "It is against my religious belief system not wanting to touch or be touched by any stranger. I did not wish to give hand massages to dirty hands to strangers in order to sell my lotions." (Amended Complaint at 6:20-21). Plaintiff fails to set forth any facts to support a claim that Neiman Marcus was responsible for employment discrimination against her because of her religion.
To support a cause of action for violation of civil rights as provided by 42 U.S.C. § 1983, Plaintiff must present facts which would tend to show that Defendant was acting under color of state law or action and that Defendant deprived her of rights guaranteed by the U.S. Constitution or federal statutes. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. Denied, 107 S.Ct. 928 (1987). Neiman Marcus is a private corporation and hence could not be accused of being a state actor. Plaintiff presents no evidence whatever that Defendant conspired with state actors to deprive her of her constitutional rights.
In conclusion, no matter how hard the court tries, it cannot find any basis in fact or law for an employment relationship between Plaintiff and Defendant; nor can it find any basis for maintaining a cause of action for employment discrimination by Defendant against Plaintiff due to her membership in any protected class, including her religion; nor does there exist any grounds for a cause of action under 42 U.S.C. § 1983. Accordingly, the court must dismiss Plaintiff's complaint with prejudice. The parties to bear their own costs. The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
The motion of Defendant to dismiss Plaintiff's First Amended Complaint was granted by this court and the complaint dismissed with prejudice. Accordingly, judgment is hereby entered for Defendant, the parties to bear their own costs. The clerk shall close the file.
IT IS SO ORDERED.