Girik Issaian, individually v. J.B. HUNT TRANSPORT SERVICES, INC., an Arkansas corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GIRIK ISSAIAN, individually and on behalf
of himself, all others similarly situated, and
the general public,
Plaintiff-Appellant,
v.
J.B. HUNT TRANSPORT SERVICES,
INC., an Arkansas corporation; J.B. HUNT
TRANSPORT, INC., a Georgia corporation,
Defendants-Appellees.
No. 21-55613
D.C. No.
2:20-cv-00732-SVW-MAA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted November 8, 2022**
Pasadena, California
Before: MURGUIA, Chief Judge, and PARKER*** and LEE, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
FILED
NOV 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Girik Issaian worked as a contract truck driver for J.B. Hunt Transport
Services, Inc. and its wholly owned subsidiary, J.B. Hunt Transport, Inc.
(collectively “J.B. Hunt”), until J.B. Hunt fired him three months after a work-
related accident that injured his knee, neck, and back. Consequently, Issaian sued
J.B. Hunt for disability discrimination and related claims under the California Fair
Employment and Housing Act (“FEHA”). The district court assumed that Issaian
was J.B. Hunt’s employee under FEHA and reached the merits of his claims, but the
court nevertheless granted J.B. Hunt summary judgment.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district
court’s decision on summary judgment and may affirm “on any ground supported
by the record.” ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 790–91 (9th Cir.
2006) (citation omitted); Engleson v. Burlington N. R. Co., 972 F.2d 1038, 1044 (9th
Cir. 1992) (citation omitted). We affirm.
1. “In order to recover under the discrimination in employment provisions
of the FEHA, the aggrieved plaintiff must be an employee.” Estrada v. City of Los
Angeles, 159 Cal. Rptr. 3d 843, 846 (Cal. App. 2013) (cleaned up). As a remedial
statute, FEHA is intended to be interpreted “broad[ly],” Talley v. Cnty. of Fresno,
265 Cal. Rptr. 3d 663, 692 (Cal. App. 2020), and in favor of effectuating its
“fundamental antidiscrimination purposes,” Yanowitz v. L’Oreal USA, Inc., 116 P.3d
1123, 1138 (Cal. 2005). Even so, the “threshold requirement” under FEHA “is the

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existence of an employment relationship,” and the statute “cannot be interpreted so
broadly as to obviate this primary requirement . . . .” Talley, 265 Cal. Rptr. 3d at
692 (citation omitted).
Whether an individual is an employee or an independent contractor is a
question of law unless the determination depends upon a dispute of material fact.
S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 769 P.2d 399, 403 (Cal. 1989).
No material facts are disputed here. We and California courts apply the common-
law right-to-control test to determine whether an individual is an independent
contractor. See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52
(1989); Borello, 769 P.2d at 404; Dynamex Operations W. v. Superior Ct., 416 P.3d
1, 31 n.20 (Cal. 2018); Alexander v. FedEx Ground Package Sys., Inc., 765 F.3d
981, 988 (9th Cir. 2014); see also Talley, 265 Cal. Rptr. 3d at 676–77.
2. Because the district court reached the merits of Issaian’s FEHA claims
by assuming he was an employee, it did not apply the right-to-control test. Under
that test, Issaian was an independent contractor. The work Issaian completed—
delivering loads throughout Southern California—was indisputably central to J.B.
Hunt’s business. Issaian was a skilled driver who drove his personal truck on J.B.
Hunt’s behalf, but he could choose to work for other employers at the same time and
hire assistant drivers and subcontract his jobs to them. Either party could terminate
their contractual relationship with 30-days’ notice. Issaian could—and did—set his

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own schedule and determine whether, when, and how long to work. But Issaian
claimed before the district court that if he refused a load, as he was permitted to do
by the contract, he was told that “he would [be] penalize[d].”
Both parties expressly and voluntarily agreed to, and acted with the
understanding of, Issaian’s independent-contractor status. J.B. Hunt generally paid
Issaian by the task and delivery, not hourly or on a salaried basis; and the employer
never issued him a W-2. And although J.B. Hunt offered Issaian an employee-driver
position for when he would be able to return to work, he apparently declined it in
favor of remaining an independent contractor.
Considered in their totality, these factors compel the conclusion that Issaian
was an independent contractor. Arnold v. Mut. of Omaha Ins. Co., 135 Cal. Rptr. 3d
213, 221 (Cal. App. 2011) (“Even if one or two of the individual factors might
suggest an employment relationship, summary judgment is nevertheless proper
when, as here, all the factors weighed and considered as a whole establish that [the
plaintiff] was an independent contractor and not an employee . . . .”). He therefore
cannot state claims under FEHA. The district court’s summary-judgment order is
AFFIRMED.

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