Bibi v. VxL Enterprises, LLC

Background

Omar Bibi, a physician, alleged that VXL Enterprises, LLC, Daniel & Yeager, LLC, Sycamore Provider Contracting, L.L.C., and Team Health, LLC discriminated against him because of his race and retaliated against him after he complained about racial discrimination. Bibi alleged that he is a U.S. citizen of Tunisian descent, identifies as a Caucasian Arab, and is Muslim.

VXL contracted with the California prison system to provide COVID-related medical relief at San Quentin prison. VXL arranged with Daniel & Yeager, a locum tenens staffing agency, to staff the medical facility. Bibi contracted with Daniel & Yeager to work 32 twelve-hour shifts. Although Daniel & Yeager had the contract with Bibi, Bibi alleged that VXL supervised and controlled his work through its Chief Medical Officer, Andre Pennardt.

Bibi alleged that Pennardt made derogatory comments about him, including remarks suggesting that Bibi had committed felonies and would make a better gun runner or drug dealer. Bibi also alleged that Pennardt unfairly accused him of workplace violations. On July 28, 2020, Bibi complained to a Daniel & Yeager contact about Pennardt’s comments and conduct. Bibi alleged that Daniel & Yeager terminated him later that day or soon afterward. He also alleged that he later applied for jobs with Team Health but was not hired.

Bibi’s amended complaint asserted three claims under 42 U.S.C. § 1981: race discrimination, retaliation, and failure to hire. It also asserted discrimination and retaliation claims under California Civil Code § 51.5.

Rulings on the Section 1981 Claims

Section 1981 protects the right to make and enforce contracts without racial discrimination. The court held that Bibi did not adequately plead a § 1981 claim against VXL because the complaint alleged a contract between Bibi and Daniel & Yeager, but not between Bibi and VXL. The court rejected Bibi’s argument that VXL’s subcontracting relationship with Daniel & Yeager itself created a contractual relationship between Bibi and VXL. The court also noted that Team Health, rather than VXL, allegedly made the later hiring decisions.

The court found the allegations insufficient to support a claim that Daniel & Yeager terminated Bibi because of his race. Bibi did not allege that similarly situated workers of another race or ethnicity were treated more favorably, and the allegedly discriminatory comments were made by Pennardt, who allegedly worked for VXL. Bibi also did not allege that Pennardt influenced Daniel & Yeager’s termination decision.

The court reached a different conclusion on Bibi’s retaliation claim concerning his termination. To plead retaliation under § 1981, a plaintiff must allege protected activity, an adverse employment action, and a causal connection between them. The court found those allegations plausible because Bibi allegedly complained to Daniel & Yeager about racial discrimination, was terminated, and was terminated later that day or soon afterward.

The court found the allegations inadequate for Bibi’s failure-to-hire and hiring-retaliation claims. The complaint did not indicate that anyone at Team Health had racial bias, that similarly situated or less-qualified applicants were hired instead, or that Team Health knew about Bibi’s complaint to Daniel & Yeager. The court also found that the nearly one-year gap between the complaint and Bibi’s first Team Health applications did not support causation. Although some applications were filed after Bibi began this lawsuit, the complaint did not plausibly allege that the relevant Team Health hiring decisionmakers knew about the lawsuit.

California Civil Code Section 51.5

Section 51.5 prohibits certain discrimination and refusals to deal by business establishments. The court held that the statute generally applies to proprietor-customer or similar relationships, not employment-like relationships. Because Bibi had an employment-like contractual relationship with Daniel & Yeager and sought such a relationship with Team Health, the court held that his claims based on termination and failure to hire were not viable under § 51.5.

The court rejected Bibi’s argument that California’s treatment of locum tenens physicians as independent contractors automatically made § 51.5 applicable. It concluded that the distinction between business-consumer and employer-employee relationships remained controlling and dismissed the § 51.5 claim.

Disposition

The court granted VXL’s motion to dismiss in its entirety. It granted in part and denied in part Daniel & Yeager and Team Health’s motion to dismiss. The one claim the court found plausible was Bibi’s § 1981 retaliation claim against Daniel & Yeager based on his termination after complaining about Pennardt’s conduct.

The court gave Bibi four weeks to file an amended complaint addressing the deficiencies in his § 1981 claims, if he could do so in good faith. The court did not allow amendment of the § 51.5 claim. Judge Edward M. Chen stated that the order disposed of Docket Nos. 34 and 35.