Elise Kahn v. American Heritage Life Ins. Company , 233 F. App'x 895 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 18, 2007
No. 06-15842 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00731-CV-J-16TEM
ELISE KAHN,
Plaintiff-Appellant,
versus
AMERICAN HERITAGE LIFE INSURANCE COMPANY,
ALLSTATE FINANCIAL CORPORATION,
ALLSTATE INSURANCE COMPANY,
THE ALLSTATE CORPORATION,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 18, 2007)
Before ANDERSON, BARKETT and HILL, Circuit Judges.
PER CURIAM:
This case originated in the Court of Common Pleas, Bucks County,
Pennsylvania. Elise Kahn asserted a claim against defendants for unlawful
retaliation under the Pennsylvania Human Relations Act (the “PHRA” or the
“Act”).
Defendants removed this action to the United States District Court for the
Eastern District of Pennsylvania, asserting diversity jurisdiction. Defendants then
filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), asserting that Kahn failed
to state a claim under the PHRA because she is an independent contractor and not
within the class of independent contractors protected by the Act. Defendants also
argued that under the forum selection clause of Kahn’s employment contract, the
Pennsylvania district court should exercise its authority under 28 U.S.C. § 1404(a)
and transfer plaintiff’s case to Duval County, Florida.
The Pennsylvania district court agreed with Defendants, and transferred this
case to the Middle District of Florida, Jacksonville Division, which is located in
Duval County, Florida, thereby satisfying the forum selection clause. Plaintiff did
not appeal this transfer to the Court of Appeals for the Third Circuit, although such
relief was available. See In re United States, 273 F.3d 380, 383-85 (3d Cir. 2001).
Instead, she waited until the district court for the Middle District of Florida
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dismissed her case on the merits to argue on appeal to us that the transfer was
improvident. We are without jurisdiction to review challenges to the transfer
decision of a district court located within another circuit. Roofing & Sheet Metal
Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 985-86 (11th Cir. 1982).
As to her appeal of the district court’s decision to dismiss her claim for
retaliation under the PHRA, we find no error in the district court’s conclusion that
Kahn is not covered by the Act. The statute limits the scope of its protection
against discrimination and retaliation to persons who are employees or within an
identifiable class of independent contractors. Although Kahn asserts that, as
defendants’ insurance agent, she was within this class, the statute limits the class
to:
[a]ny person who is subject to the provisions governing any of the
professions and occupations regulated by State licensing laws
enforced by the Bureau of Professional and Occupational Affairs in
the Department of State or is included in the Fair Housing Act.1
43 Pa. Cons. Stat. Ann. § 954(x).
Insurance agent is not one of the professions or occupations regulated by the
Bureau of Professional and Occupational Affairs in the Department of State of
Pennsylvania. See 63 Pa. Cons. Stat. Ann. §§ 1-2334. In fact, the only insurance
occupation listed as covered, that of insurance adjuster, specifically excludes
1
The Fair Housing Act does not apply to this case.
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insurance agent from its definition. Id. at § 1061. Insurance agents are regulated
by a wholly separate agency, Pennsylvania’s Insurance Department.
The class of independent contractors covered by the PHRA is specifically
limited by the Act and cannot be expanded beyond the scope that was intended by
the Pennsylvania legislature. See Velocity Express, v. Pennsylvania Human
Relations Comm’n, 853 A.2d 1182, 1186 (Pa. Commw. Ct. 2004). Therefore, the
district court did not err when it found that an insurance agent is not within the
limited class of independent contractors covered by the PHRA.
Accordingly, as Kahn does not belong to the limited class of independent
contractors covered by the statute, the district court correctly dismissed her
complaint filed under the Act, and the dismissal is due to be
AFFIRMED.
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