all of the circumstances surrounding Spirides' work relationship in addition to its consideration of the elements of her POV contract" (613 F.2d at 833). Having reviewed all of these circumstances, including those set forth in plaintiff's deposition, this Court is firmly convinced that plaintiff was not an employee under the Act, and was thus beyond the scope of its protection. There are a number of compelling indicia, in addition to the clear contract language, that suggest that plaintiff had, at all relevant times, an independent contractor relationship with the Greek Service and that she so recognized the relationship. First, plaintiff did not receive annual or sick leave. Plaintiff's deposition, at 12. Plaintiff received no retirement credits, and she had no hospitalization insurance. From April, 1954 to September, 1956 plaintiff was employed at the American Consulate in Salonika. At that time, as a true employee of the United States Government, she did receive these benefits. Plaintiff's deposition, at 5-9. Further, plaintiff knew that employees of the ICA were getting annual leave, sick leave, retirement credits and hospitalization insurance, and that she was not. Further, plaintiff was well aware that if she was an employee she was entitled to these benefits. Plaintiff's deposition, at 13. Second, the government did not make any deduction from her salary for withholding of taxes, and no Social Security payments were made on her behalf. Plaintiff was aware that, in the case of employees, the government does make deductions for withholding of taxes (Plaintiff's deposition, at 12), and that her husband was a government employee and the government was withholding taxes from him. Ibid. Third, the contract only required the agency to provide plaintiff with one assignment over the one-year life of the contract. Plaintiff knew that this was not the usual relationship that obtains between employer and employee. Plaintiff's deposition, at 19-20. Fourth, the payment in this contractual relationship was "per assignment." An express contract to pay by the job is always strong evidence that the relationship of employer employee does not exist. O'Leary v. James & Wunderlich, 192 F. Supp. 462 (D.Mont.1960), aff'd., 288 F.2d 462 (9th Cir. 1961). Fifth, and very compelling, tax returns filed by plaintiff and her husband listed amounts received by plaintiff from ICA as "self-employment income." Deposition of Mr. Spirides, at 9. Tax forms filed by plaintiff and her husband stated, next to the term "Spouse's Occupation," the word "contractor" and under it "U. S. Govt., USIA." Deposition of Mr. Spirides, at 6. Further Mr. and Mrs. Spirides deducted as a business expense the cost of transportation expended to perform services as a purchase order vendor. As an employee, Mrs. Spirides could not have deducted transportation as a business expense. Mr. Spirides did not deduct his transportation to his government employment. Deposition of Mr. Spirides, at 13-14.
This Court finds that the preceding five observations, taken together with the unambiguous contract language, establishes beyond any doubt that plaintiff was not an employee under the Act, that she knew and recognized that she was not such an employee and thus was not within the scope of its coverage.
EVEN IF PLAINTIFF WERE CONSIDERED AN EMPLOYEE UNDER THE ACT, SHE HAS NOT MADE OUT A COGNIZABLE CLAIM OF "SEX PLUS" DISCRIMINATION.
Plaintiff alleges that she had been discriminated against because of her sex and citizenship, and argues that this is a recognizable type of discrimination referred to as "sex plus" discrimination. In a "sex plus" case an employer does not discriminate against a protected class as a whole, but rather disparately treats a subclass within a protected class. Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S. Ct. 496, 27 L. Ed. 2d 613 (1971). In Phillips, the Court found a violation of Title VII where the employer treated women with children of preschool age differently than men in similar circumstances. In Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971) cert. denied, 404 U.S. 991, 92 S. Ct. 536, 30 L. Ed. 2d 543 (1971), held it a violation of Title VII for the defendant to hire married male flight attendants but not married female flight attendants. However, the "sex plus" cases advanced by plaintiff are not controlling for two reasons.
First, as has been noted in a district court case in this jurisdiction in a 1979 case involving the identical agency and only slightly different facts, "American citizenship is not such a traditional symbol (as are motherhood in Phillips and marriage in Sprogis ), and is therefore a less likely camouflage for sexual discrimination. Nor is there any factual reason to suspect that the citizenship factor operates to the greater disadvantage of women than of men." Michalas v. Reinhardt, 22 Fair Empl. Prac. Cas. (BNA) 469, C.A. 78-0920, Memorandum Opinion issued May 29, 1979, at 4. In Michalas, Judge Richey noted that, "while it is conceivable that such a claim could be made based on a combination of sex and citizenship" (Memorandum Opinion, at 5), plaintiff's contention that the defendant hired female aliens full time and citizens only on a purchase order vendor basis to discriminate against women is inadequate to state a claim of "sex plus" discrimination in violation of Title VII. Given the striking parallels between Michalas and the instant case, principles of equity, fairness, and judicial uniformity command obedience to the Michalas result.
Second, even if plaintiff's "sex plus" claim were theoretically cognizable, the record reflects that defendant's failure to renew plaintiff's contract was motivated by prudent business judgment, not illegal discrimination. Plaintiff was originally engaged as a purchase order vendor in 1968 because the Greek Service sought a female voice to break the monotony of an all-male presentation. Plaintiff's deposition, at 29-32. The regular staff of the Greek Service (adapter-announcers) wrote scripts and translated before delivering their scripts over the air. In contrast, plaintiff merely provided a voice; she did not write scripts or translate. Plaintiff's deposition, at 31-34. Prior to plaintiff's termination, the Greek Service hired two female adapter-announcers who prepared their own scripts and delivered them on the air. Plaintiff's deposition, at 35. There was not a regular position in the Greek Service for a person who could only read but could not prepare scripts. Plaintiff's deposition, at 57. The only reason plaintiff was engaged as a purchase order vendor, even though she could read but not prepare scripts, was that the Greek Service wanted a female voice; and purchase order vendors are engaged when regular staffers cannot provide a particular service. Plaintiff's deposition, at 61. With the advent of the additional regular staff people who possessed the broader range of talent needed by the Greek Service, there was no longer a need to specifically buy a female voice. Plaintiff's deposition, at 60. From 1968 to 1974, plaintiff never made it known that she was interested in full time employment; nor that she was interested in a position as an adapter-announcer. Plaintiff's deposition, at 49-51. She did not have a background in journalism. Ibid. Plaintiff was asked whether she wanted to take the test for full time employment and she decided not to avail herself of this opportunity for adapter-announcer employment. Plaintiff's deposition, at 56-57. With the arrival of the two female staff members by July of 1974, there was no longer a need for plaintiff's services. It was this situation "that led the Chief of the Greek Service to notify Mrs. Spirides last Spring that he probably would not be able to continue to justify the expenditure of purchase order funds for an additional female voice." Letter from Acting ICA Director Eugene P. Kopp, October 2, 1974. Exhibit 3 to Plaintiff's deposition. Examined in their entirety, there can be no doubt that defendant's actions reflected sound, prudent, and sensible business judgment. There are no material facts in dispute which could possibly substantiate a claim of illegal discrimination.
On the basis of the pleadings, depositions, and oral argument, no fact material to any of the asserted claims is in dispute. Therefore, the defendant's motion for summary judgment will be granted; and the plaintiff's motion for summary judgment will be denied. An order in accordance with the foregoing will be issued herewith.