United States District Court, D. Connecticut
MEMORANDUM OF DECISION AND ORDER
Stefan R. Underhill United States District Judge
The plaintiff in this case, Dr. Deborah Fabian, brings this action under Title VII of the Civil Rights Act and the Connecticut Fair Employment Practices Act (“CFEPA”). She alleges that she was very nearly hired as an on-call orthopedic surgeon at the Hospital of Central Connecticut and relied reasonably and substantially on the impending finalization of her hiring, but that the hospital declined to hire her because she disclosed her identity as a transgender woman who would begin work after transitioning to presenting as female. The hospital moves for summary judgment on the grounds that Dr. Fabian has not met her burden under the McDonnell Douglas burden-shifting framework, because she would have been an independent contractor rather than an employee and therefore is not covered by the relevant statutes, and because Title VII (and the CFEPA at the time of the alleged discrimination) does not prohibit employment discrimination on the basis of transgender identity. For the reasons discussed below, I reject all three arguments and deny the Hospital’s motion.
I. Standard of Review
Summary judgment is appropriate when the record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment).
When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d. 520, 523 (2d Cir. 1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the nonmoving party”). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of the pleadings, but must present sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
“Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is “merely colorable, ” or is not “significantly probative, ” summary judgment may be granted. Anderson, 477 U.S. at 249–50.
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.
Id. at 247–48. To present a “genuine” issue of material fact, there must be contradictory evidence “such that a reasonable jury could return a verdict for the non-moving party.” Id. at 248.
If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex, 477 U.S. at 322. In such a situation, “there can be ‘no genuine issue as to any material fact, ’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23; accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant’s burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party’s claim). In short, if there is no genuine issue of material fact, summary judgment may enter. Celotex, 477 U.S. at 323.
Deborah Fabian is an orthopedic surgeon and a transgender woman. She alleges that she was very nearly hired by the Hospital of Central Connecticut (“HCC” or the “Hospital”) as an on-call orthopedic surgeon for its Emergency Department, albeit with the involvement of a third-party provider of physicians and management services-Delphi Healthcare Partners, Inc. (“Delphi”)-that the Hospital used as a means to find physicians. Fabian entered the hiring process with Delphi and subsequently went to interview at HCC believing that she was all but hired. At that time, she was publicly presenting as male and was known as David Fabian; she informed her interviewers at the end of her interview, however, that she is a transgender woman and transitioning to presenting as female, and that she would work at the hospital as Deborah Fabian. She subsequently learned that she would not be hired, and she alleges that she would have been except for her disclosure of her identity as a transgender woman. She alleges that the interview was barely more than a formality, that she had already been told she would get the job, that she had already been given a contract with a start date (which she executed and returned), and that it was in reliance on that reasonable understanding that she and her wife sold their home in Massachusetts.
Fabian’s four-count complaint alleges that Delphi (Counts One and Two) and HCC (Counts Three and Four) violated Title VII of the Civil Rights Act and the CFEPA. The present motion for summary judgment was filed only by HCC with respect to Counts Three and Four.HCC asserts that it chose not to hire Fabian not because she is a transgender woman but because she showed what her interviewers perceived as reluctance (or insufficient enthusiasm) about late-night calls to the Emergency Department and their new electronic records systems, and that she wanted to perform more surgery, which is not what the job would likely entail. HCC also claims that the “contract” she received was merely a sample contract. Moreover, HCC argues that its relationship to Fabian if she had been hired would not have been as employer under Title VII, because she would have been an independent contractor of Delphi, and thus an independent contractor of an independent contractor; and that, in any case, discrimination on the basis of transgender identity is not prohibited by Title VII and was not prohibited by the CFEPA at the time. In sum, HCC argues that summary judgment should be granted because: (1) HCC had legitimate nondiscriminatory reasons not to hire Fabian, which Fabian has not shown to be pretextual; (2) even if HCC had hired Fabian, it would not have been her “employer” under Title VII or the CFEPA; and (3) transgender is not a protected status under Title VII and was not a protected status under the CFEPA at the time of the events giving rise to this case, and the subsequent amendment of the CFEPA to cover that status should not be applied retroactively.
The central factual dispute in this case is whether the decision not to hire Fabian was or was not made as a result of her transgender identity. If she would have been an independent contractor rather than an employee under Title VII and the CFEPA and therefore not covered by the statutes anyway, or if transgender status is not cognizable under them, then that factual dispute is immaterial. I will address those arguments below. But assuming for the moment that the discrimination she alleges is not outside the scope of the protective statutes, her claim is subject to the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Because in this case that analysis is relatively simple, I will take it up first.
A. McDonnell-Douglas Burden Shifting
It is unlawful under Title VII for an employer “to fail or refuse to hire … any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Discriminatory failure-to-hire claims under Title VII are analyzed under the familiar burden-shifting framework of McDonnell Douglas. Under that test:
a plaintiff complaining of a discriminatory failure to hire must first make out a prima facie case of discrimination by showing that (1) [she] is a member of a protected class, (2) [she] was qualified for the job for which [she] applied, (3) [she] was denied the job, and (4) the denial occurred under circumstances that give rise to an inference of invidious discrimination. Once the plaintiff has made such a prima facie showing, the burden shifts to the employer to come forward with a nondiscriminatory reason for the decision not to hire the plaintiff. If the employer articulates such a reason, the plaintiff is given an opportunity to adduce admissible evidence that would be sufficient to permit a rational finder of fact to infer that the employer’s proffered reason is pretext for an impermissible motivation.
Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010).
There is no dispute that Fabian was qualified for the job and that she was denied it. Whether she is a member of a protected class pertinent to her claim is disputed and is addressed below. Assuming for now that she is, she need only show that “the denial occurred under circumstances that give rise to an inference of invidious discrimination” to make her prima facie showing. She has proffered evidence that she was led to believe she was all but formally hired, that she received some sort of contract (though its significance is disputed), that she relied to her detriment on such representations to such an extent that she sold her home in Massachusetts, that she was not hired after disclosing her transgender identity, and that other doctors who are not transgender were subsequently hired. Taken together, that evidence is easily sufficient to give rise to an inference of discrimination. Assuming that the employment relationship in question is covered by the statute and that Fabian is a member of a protected class because discrimination on the basis of transgender identity constitutes sex discrimination, her prima facie case is therefore easily made. HCC proffers nondiscriminatory reasons for not hiring her-that in an interview she expressed reluctance about being called in to the Hospital at late hours and about the Hospital’s new electronic recordkeeping systems, and wanted to perform more surgery-but the factual basis of those reasons (i.e., the statements Fabian made in the interview) is disputed. A reasonable jury could find that those reasons were mere pretext and that Fabian’s disclosure of her gender identity was the reason she was not hired. The Hospital’s motion for summary judgment should therefore not be granted on the basis of any failure of Fabian to meet her burden under the McDonnell-Douglas framework.
B. Employee or Independent Contractor
“Title VII cover[s] ‘employees, ’ not independent contractors, ” Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 113 (2d Cir. 2000), but the mere fact that HCC formally designates its doctors as “independent contractors” does not make them so (or, rather, it does not exclude them as “employees”) under Title VII. Instead, the question “whether a worker is an ‘employee’-or whether he or she is merely an independent contractor-requires the application of the common law of agency. In turn, whether a hired person is an employee under the common law of agency depends largely on the thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid.” Id. at 113–14 (citations omitted). The Reid factors are:
 the hiring party’s right to control the manner and means by which the product is accomplished . . . [;]  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 ...