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Doud v. Yellow Cab of Reno, Inc.

United States District Court, D. Nevada

March 30, 2015


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For James Doud, Melodie Doud, Plaintiffs: Terri Keyser-Cooper, LEAD ATTORNEY, Law Office of Terri Keyser-Cooper, Reno, NV.

For Yellow Cab of Reno, Inc., Defendant: Michelle R. Bumgarner, LEAD ATTORNEY, Harvey Law Firm, PLLC, Reno, NV.

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Before the court is the Motion for Partial Summary Judgment on Defendant's 25th Affirmative Defense filed by Plaintiff James Doud. (Doc. # 31.)[1] Defendant Yellow Cab of Reno, Inc. filed a response (Doc. # 38), and Mr. Doud filed a reply (Doc. # 42). For the reasons set forth herein, the motion is granted.


Plaintiffs James and Melodie Doud filed their Complaint on December 4, 2013, asserting claims under Title III of the Americans with Disabilities Act (ADA) (James and Melodie Doud), associational discrimination under Title I of the ADA (James Doud), retaliation under Title I of the ADA (James Doud), as well as claims under Nevada Revised Statutes (NRS) 706.361, et. seq. (Melodie Doud) and 706.366[2] (Melodie and James Doud), and a State law claim for tortious failure to furnish facilities (Melodie and James Doud). (Compl., Doc. # 1.)

Specifically, the Complaint alleges that Melodie Doud is an amputee with one leg, is considered disabled for purposes of the ADA, and is married to James Doud. (Doc. # 1 at 2 PP 5-6.) Her disability requires that she utilize a portable electric scooter and crutch for mobility, and is frequently accompanied by her two service dogs. ( Id.

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at 3 ¶ 11.) James Doud alleges that he was a long-term employee (and not independent contractor) of Yellow Cab. ( Id. ¶ 12.)

The Douds allege that they were denied transportation by two Yellow Cab taxis at Reno's airport on April 9, 2013, and again on May 20, 2013, because of Melodie Doud's disability. They filed a complaint with the Nevada Transportation Authority (NTA), who issued a citation to Yellow Cab for violation of Nevada Administrative Code (NAC) 706.365 (later amended to reflect a violation of NRS 706.361) and a subsequent citation under NRS 706.366. A hearing was held, and the NTA confirmed that one or more Yellow Cab drivers denied transportation services to a person with a disability in violation of NRS 706.361(1), (4). They subsequently filed this action.

The Douds filed a Motion for Preliminary Injunction on March 19, 2014, related to their claim under Title III of the ADA. (Doc. # 9.) On August 28, 2014, United States District Judge Miranda M. Du entered an order granting Plaintiff's motion. (Doc. # 30.) Yellow Cab has appealed this order, but did not request a stay of this proceeding while the appeal is pending. ( See Doc. # 36.)

The Douds then filed a partial motion for summary judgment related to the denial of service claims, which the court has since granted in part and denied in part. ( See Mtn. at Doc. # 21; Order at Doc. # 69.) In that motion, the Douds sought summary judgment as to liability on their first (Title III ADA claim related to denial of service), fourth (NRS provisions) and sixth (tortious failure to furnish facilities) causes of action. The court granted the motion as to the first cause of action--the Title III ADA denial of service claim--but denied it as to the fourth and sixth causes of action brought under State law. (Doc. # 69.)[3]

James Doud filed the instant motion for partial summary judgment related to Yellow Cab's twenty-fifth affirmative defense on September 1, 2014. (Doc. # 31.) This affirmative defense asserts that pursuant to NRS 706.473, James Doud was an independent contractor and not an employee; therefore, he is excluded from the ADA's protections. (Yellow Cab's Answer, Doc. # 20 at 16.) Mr. Doud argues that regardless of nomenclature, based on Yellow Cab's practices James Doud was in fact an employee, entitled to the protections of the Title I of the ADA. (Doc. # 31.)

On November 21, 2014, the parties agreed to enter into the court's Short Trial Program. (Doc. # 49.) Judge Du approved the request, and the parties consented to the undersigned being assigned this case for all purposes. ( See Docs. # 51, # 52, # 53.)


" The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court." Northwest Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). In considering a motion for summary judgment, all reasonable inferences are drawn in favor

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of the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). " The court shall grant summary judgment if the movant shows 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). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1)(A), (B).

If a party relies on an affidavit or declaration to support or oppose a motion, it " must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4).

In evaluating whether or not summary judgment is appropriate, three steps are necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine dispute as to a material fact; and (3) considering the evidence in light of the appropriate standard of proof. See Anderson, 477 U.S. at 248-250. As to materiality, 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 which are irrelevant or unnecessary will not be considered. Id. at 248.

In deciding a motion for summary judgment, the court applies a burden-shifting analysis. " When the party moving for summary judgment would bear the burden of proof at trial, 'it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.'...In such a case, the moving party has the initial burden of establishing the absence of a genuine [dispute] of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the moving party satisfies its initial burden, the burden shifts to the opposing party to establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a genuine dispute of material fact, the opposing party need not establish a genuine dispute of material fact conclusively in its favor. It is sufficient that " the claimed factual dispute be shown to require

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a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotation marks and citation omitted). " Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. Id. Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324.

That being said,

[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or (4) issue any other appropriate order.

Fed. R. Civ. P. 56(e).

At summary judgment, the court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine dispute of material fact for trial. See Anderson, 477 U.S. at 249. While the evidence of the nonmovant is " to be believed, and all justifiable inferences are to be drawn in its favor," if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50 (citations omitted).


A. The Motion is Not Premature

In its opposition to Mr. Doud's motion, Yellow Cab briefly argues that this motion is premature because discovery is in its beginning phases.

If a non-moving party demonstrates through an affidavit or declaration that it does not have sufficient facts to justify its opposition, the court may defer consideration of the motion or deny it, allow time for discovery, or issue another appropriate order. Fed.R.Civ.P. 56(d). The party seeking a Rule 56(d) continuance bears the burden of proffering facts sufficient to satisfy its requirements. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th Cir. 1996).

Yellow Cab does not include a formal request under Federal Rule of Civil Procedure 56(d). Nor does Yellow Cab specify what discovery it needs to undertake in order to oppose this motion. Moreover, there is no declaration from counsel attesting to this issue. As a result, Yellow Cab has not met its burden under Rule 56(d), and to the extent its brief statement that discovery is only just beginning can be construed as a request for continuance under Rule 56(d), that request is denied.

B. Federal Common Law Principles of Agency Law are Used to Determine Employee Versus Independent Contractor Status Under the ADA

" Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 532 U.S. 661, 674, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). " The Act responds to what Congress described as a

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'compelling need' for a 'clear and comprehensive national mandate' to eliminate discrimination against disabled individuals." Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir. 2004) (quoting PGA Tour, 532 U.S. at 675). " To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III)." Id. (internal quotation marks omitted).

Title I of the ADA governs discrimination against individuals with disabilities in employment. 42 U.S.C. § 12111, et. seq. A " covered entity" under Title I includes an employer, who is generally defined as " a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year[.]" 42 U.S.C. § 12111(2), (5)(A). Title I precludes a covered entity from " discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). Discrimination includes " excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association[.]" 42 U.S.C. § 12112(b)(4). The ADA likewise prohibits retaliation against an individual " because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a).

Mr. Doud concedes that in order to state a claim under Title I of the ADA for retaliatory termination, he must be considered an employee of Yellow Cab under the ADA. (Doc. # 31 at 1:21-22.) Conversely, his claim fails if he is deemed to be an independent contractor. Mr. Doud maintains that he was an employee of Yellow Cab, while Yellow Cab asserts in its twenty-fifth affirmative defense that he was an independent contractor. Thus, the court's inquiry here focuses on whether Mr. Doud was an employee or independent contractor of Yellow Cab in the context of an action brought pursuant to the ADA.

Mr. Doud argues that regardless of the nomenclature used to describe his relationship with Yellow Cab, under the federal common law criteria used to determine employee versus independent contractor status, he should be considered an employee of Yellow Cab. Yellow Cab, on the other hand argues that Nevada law is determinative of the relationship because Yellow Cab asserted into a valid lease with him pursuant to NRS 706.473 that was approved by the NTA. ( See, e.g., Doc. # 38 at 5:14-16.)

After the court undertook its initial review of the briefing on this motion, it was swayed by the parties' focus on the implication of Chapter 706 of the NRS, and specifically NRS 706.473, which permits taxicab operators to enter into lease agreements with taxicab drivers. If, as Yellow Cab argued, NRS 706.473 was controlling, the court was concerned that it had been presented with an issue of first impression in Nevada law--whether NRS 706.473 supplants the traditional common law determination of independent contractor versus employee status when a taxicab operator elects, with approval from the NTA, to lease a taxicab to an individual pursuant to NRS 706.473. As such, the court held a status conference on February 24, 2015, to discuss with the parties whether this issue

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should be certified to the Nevada Supreme Court for resolution. ( See Docs. # 67, # 68.)

This court noted that the Nevada Supreme Court had been presented with the issue in the context of respondeat superior liability in another case involving Yellow Cab, Yellow Cab of Reno, Inc. v. Second Jud. Dist. Ct., 262 P.3d 699 (Nev. 2011). There, the Nevada Supreme Court commented that " the statute is silent ... as to whether the creation of the independent contractor relationship under that statute acts to bar the application of respondeat superior liability as is the case under traditional independent contractor relationships. Id. at 704. The Nevada Supreme Court confirmed it has held " that such liability can be avoided when a traditional independent contract relationship is found to exist, [but] the issue of whether an NRS 706.473-statutory-independent-contract relationship bars respondeat superior liability" had not been addressed by the Nevada Supreme Court. The Nevada Supreme Court declined to consider the issue in the first instance and remanded the matter to the district court; however, the district court never addressed the question because after the case was remanded the parties entered into a settlement.

This court determined that it would proceed with resolving the Douds' motion for partial summary judgment with respect to the denial of service claims (Doc. # 31) and their motion for an interim award of attorneys' fees (Doc. # 32), and then would return to this motion to determine whether to certify the issue to the Nevada Supreme Court. ( See Minutes at Doc. # 68 at 2.)

Upon further reflection on the briefing filed with respect to the instant motion and after conducting additional research, the court retracts its preliminary impression and concludes that certification to the Nevada Supreme Court is not necessary. Instead, the court concludes that the federal common law of agency applies to determine whether or not Mr. Doud was an employee or independent contractor of Yellow Cab.

Yellow Cab cites no authority in support its position that Nevada law, and not federal common law, applies to the determination of Mr. Doud's status as an employee or independent contractor for a claim brought pursuant to the ADA.

There is no dispute that Mr. Doud brings these claims pursuant to Title I of the ADA. As stated above, the parties agree that for Mr. Doud to maintain these claims, he must be found to be an employee of Yellow Cab. See also Fleming v. Yuma Reg'l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009) ( Title I of the ADA does not cover discrimination claims by independent contractors).[4] Therefore, by way of this motion, the court is tasked with determining whether Mr. Doud is an employee of Yellow Cab so that the ADA's protections under Title I apply to him. The ADA defines the term " employee" as " an individual employed by an employer." 42 U.S.C. § 12111.

In Community for Creative Non-Violence v. Reid, the Supreme Court was confronted with construing the term " employee" in the context of the " work made for hire" provision of the Copyright Act of 1976, which did not define the term. Community for Creative Non-Violence v. Reid, 490 U.S. 730. 738-39, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). The Supreme Court sought to resolve a split among circuits as to the meaning of the term. It pointed out that " [t]he starting point for [its] interpretation of a statute is always its language."

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Id. at 739 ( citing Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)). The Copyright Act of 1976 did not define " employee," but the Supreme Court instructed that it is " well established that '[w]here Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.'" Id. (quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981); Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979).) " In the past, when Congress has used the term 'employee' without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common law agency doctrine." Id. (citing Kelley v. Southern Pacific Co., 419 U.S. 318, 322-23, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974); Baker v. Texas & Pacific R. Co., 359 U.S. 227, 228, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959) (per curiam); Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 94, 35 S.Ct. 491, 59 L.Ed. 849 (1915)). Nothing in the Copyright Act of 1976 indicated an intent to adopt anything other than this traditional employer-employee relationship, the Supreme Court applied traditional common law principles of agency. Id. at 740. Importantly, the Supreme Court stated, " when we have concluded that Congress intended terms such as 'employee,' 'employer,' and 'scope of employment' to be understood in light of agency law, we have relied on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms." Id. (emphasis added) (citation omitted).

Here, as in Reid, it seems apparent that with Congress's express objective of providing a " national mandate for the elimination of discrimination against individuals with disabilities" and " clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities," 42 U.S.C. § 12101(b)(1), (2), that the court should apply the federal common law of agency in determining whether Mr. Doud is an employee or independent contractor of Yellow Cab.

The Supreme Court confronted the issue of construing the term " employee" once again in Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), where it was tasked with determining the meaning of the term as it appears in § 3(6) of the Employee Retirement Income Security Act of 1974 (ERISA). Id. at 319. The court concluded as it did in Reid, and is it would subsequently in the context of the ADA in Clackamas Gastroenterology Associates, P.C. v. Wells, that traditional common law principles of agency should be utilized. Id. ERISA contains the same " nominal" definition of " employee" as the ADA: " any individual employed by an employer." Darden, 503 U.S. at 323. As the Supreme Court put it, this definition " is completely circular and explains nothing." Id. ERISA, like the ADA, gives no " specific guidance on the term's meaning." Id. Nor did it suggest " that construing it to incorporate traditional agency law principles would thwart the congressional design or lead to absurd results." Id.

Darden adopted the common-law test for determining who qualifies as an employee under ERISA (which the Supreme Court had also utilized in Reid in the context of the Copyright Act of 1976):

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors

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relevant to this inquiry are 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. ... Since the common-law test contains 'no shorthand formula or magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'

Darden, 503 U.S. at 323-24 (internal citations and quotation marks omitted).

More recently, in Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003), the Supreme Court was asked to construe the meaning of the term " employee" as it appears in the ADA. Specifically, it was asked to construe the term " employee" to allow the parties to determine whether the ADA applied to the medical clinic because under its terms the ADA only covers " employers" with a work force of " 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." Id. at 442 (citing 42 U.S.C. § 12111(5)). The issue in Clackamas was whether four physicians who were actively engaged in medical practice in the clinic, but were also shareholders and directors of the professional corporation, should be counted as " employees." Id.

Clackamas noted that the ADA, like ERISA, contains a circular definition of employee. Id. at 444. As such, the Supreme Court found in this context, as it had in Reid under the Copyright Act of 1976, and in Darden under ERISA, that the common law principles of agency provided helpful guidance for construing the term. Id. at 448. First, the Court referenced the Restatement (Second) of Agency's definition of " servant" as 'a person whose work is 'controlled or is subject to the right to control by the master.'" Id. (citing Restatement (Second) of Agency § 2(2) (1957)). In addition, the Court noted that the more specific definition of the term " servant" in the Restatement contains a list of factors to be considered when one distinguishes between servants and independent contractors, the first of which is " the extent of control," which the Supreme Court instructed " is the principal guidepost" to be followed in that case. Id. [5] It further stated that this position was supported by the Equal Employment Opportunity Commission's (EEOC) compliance manual. Id. at 448-49.

While the Supreme Court in Clackamas was construing the term " employee" in the context of determining whether shareholder-physicians were employees such that the clinic was a covered entity under the ADA, when taken together with Reid and Darden, it is clear that the term should be construed in view of common law agency principles here.

The Nevada legislature has stated in NRS 706.473 that a taxicab operator may, upon approval from the NTA, lease a

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taxicab to an independent contractor; however, the fact that a taxicab operator chooses to enter into an arrangement with a driver described as an independent contractor is not controlling as to whether or not the driver is an independent contractor or employee as that term is used in the ADA. Instead, this is just one factor among many that must be considered in determining the relationship status between the parties under common law principles of agency. The parties will have to wait for Nevada's courts to determine whether NRS 706.473 supplants the ...

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