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Garland's Digest
on employment discrimination law
online since 1997
 

 

Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Zinn v. McKune, 143 F.3d 1353 (10th Cir. May 12, 1998)

Keywords: Title VII (independent contractor)

Introduction: Jerilyn Zinn sued the State of Kansas Department of Corrections (Department) under Title VII for retaliation. The district court granted summary judgment on behalf of the Department. The Tenth Circuit affirms.

Facts: In 1992, Zinn was hired by Prison Health Services (PHS). PHS contracted with the Department to provide medical services at its Osawatomie Correctional Facility. Zinn was assigned by PHS to work as a correctional nurse at that facility.

The contract between PHS and the Department expressly provided that PHS and its employees were independent contractors. However, the Department retained the right to require PHS to remove any employee if the Department had concerns about that individual.

Zinn filed an initial charge of discrimination with the Department in December 1994, alleging, among other things, that a male corrections officer verbally abused her. By February 1995, the Department asked PHS to reassign Zinn, citing four specific examples of "inappropriate behavior." PHS offered Zinn reassignment to other prison facilities, but Zinn declined because she was physically unable to perform the duties of either position. PHS placed Zinn on disability leave without pay in March of 1995.

Law:

1. The Tenth Circuit examines the facts of this case, and based on the analysis set forth in Lambertsen v. Utah Dept. of Corrections, 79 F.3d 1024 (10th Cir. 1996), it determines that Zinn was an independent contractor -- and therefore not entitled to Title VII protection.
2. In a concurring opinion, Circuit Judge Briscoe disagrees with the conclusion that Zinn was not an employee, but would affirm anyway on the basis that Zinn failed to establish that she engaged in any activity protected by Title VII.
3. Click here to see actual case.