BHANUKUMAR C. SHAH, Plaintiff-Appellant, v. DEACONESS HOSPITAL, Defendant-Appellee.
No. 02-3033
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 14, 2004
2004 FED App. 0017P (6th Cir.)
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 04a0017p.06. Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 00-00178—S. Arthur Spiegel, District Judge. Argued: August 5, 2003.
ARGUED: Mark Joseph Byrne, JACOBS, KLEINMAN, SEIBEL & McNALLY, Cincinnati, Ohio, for Appellant. Peggy M. Barker, KOHNEN & PATTON, Cincinnati, Ohio, for Appellee. ON BRIEF: Mark Joseph Byrne, JACOBS, KLEINMAN, SEIBEL & McNALLY, Cincinnati, Ohio, for Appellant. Peggy M. Barker, Anthony J. Caruso, Joseph L. Dilts, KOHNEN & PATTON, Cincinnati, Ohio, for Appellee.
OPINION
RYAN, Circuit Judge. Dr. Bhanukumar C. Shah is a general surgeon, who for many years had surgical privileges at Deaconess Hospital in Cincinnati, Ohio. In 1999, Deaconess revoked part of Shah‘s surgical privileges after one of his patients died following surgery. Shah filed suit in federal court, claiming that Deaconess discriminated against him based on his age and East Indian national origin. The district court granted summary judgment to Deaconess because Shah failed to establish a prima facie case of discrimination and failed to create a genuine factual issue regarding his claim that Deaconess’ stated reason for the action was pretextual. Shah appeals the grant of summary judgment.
For reasons we shall explain, we decline to address the merits of Shah‘s claim, but we AFFIRM nonetheless, on the ground that Shah failed to make out even a prima facie case for entitlement to the relief he seeks because he failed to show that there existed an employer-employee relationship between himself and Deaconess.
I. FACTUAL BACKGROUND
Shah has held unrestricted surgical privileges at Deaconess for over 20 years, as well as at several other Ohio hospitals. In 1998, Shah performed thyroid resection surgery at Deaconess on a 75-year-old woman suffering from neck swelling. Initially, the surgery appeared to go well, but the
Pursuant to its policy of automatically reviewing all cases involving patient death, Deaconess initiated a peer review of Shah‘s conduct. The review proceeded through numerous stages, beginning in October 1998, with a letter to Shah from the Clinical Review Committee, and ending in June 1999, when the hospital‘s Board of Trustees voted unanimously to uphold an earlier finding that “a serious misjudgement occurred in the management” of the deceased patient. The Board of Trustees also upheld a recommendation to revoke Shah‘s privileges to perform head and neck surgery and to impose a one-year period of concurrent monitoring and focused review.
II. STANDARD OF REVIEW
“We review a district court‘s grant of summary judgment de novo, using the same standard under Rule 56(c) used by the district court.” Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th Cir. 2002). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The first issue we must address—remarkably, one not raised by either party—is whether Shah‘s relationship with Deaconess, employee or independent contractor, qualifies him for the statutory relief he seeks. We directed counsel to address the issue at oral argument and they did so. We conclude that: (1) the record discloses that Shah did not make a prima facie case showing that he was an employee at Deaconess; (2) that, as such, the employment discrimination statutes upon which Shah relies do not apply; and (3) Deaconess is entitled to judgment as a matter of law.
A.
Both Title VII,
As a general rule, the federal employment discrimination statutes protect employees, but not independent contractors. See Johnson v. City of Saline, 151 F.3d 564, 567-69 (6th Cir. 1998) (ADA); Simpson v. Ernst & Young, 100 F.3d 436, 443 (6th Cir. 1996) (ADEA); Christopher v. Stouder Mem‘l Hosp., 936 F.2d 870, 877 (6th Cir. 1991) (Title VII). Cf. Falls v. Sporting News Publ‘g Co., 834 F.2d 611, 613 (6th Cir. 1987) (ADEA and Title VII). We have not applied this rule, in a published decision, in the context of a physician denied hospital privileges. In an unpublished decision, Chadha v. Hardin Mem‘l Hosp., No. 99-3166, 2000 WL 32023, at *2 (6th Cir. Jan. 6, 2000) (unpublished disposition), we held that the ADA did not apply to a physician who was an independent contractor.
Three of our sister circuits have explicitly held that a physician denied hospital privileges is not protected by the federal employment discrimination statutes if he or she is an independent contractor. See, e.g., Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 261-63 (4th Cir. 1997); Alexander v. Rush North Shore Med. Ctr., 101 F.3d 487, 493-94 (7th Cir. 1996); Diggs v. Harris Hosp.-Methodist, Inc., 847 F.2d 270, 272-73 (5th Cir. 1988). For example, in Alexander, 101 F.3d 487, the Seventh Circuit held that a physician whose hospital privileges had been revoked was not an employee within the meaning of Title VII because the hospital did not have “‘the right to control‘” the physician. Id. at 493-94 (citation omitted).
Like the Seventh Circuit, we apply the common law agency test to determine whether a hired party is an independent contractor or an employee. Johnson, 151 F.3d at 568 (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992)). Cf. Clackamas Gastroenterology Assocs., P.C. v. Wells, 123 S. Ct. 1673, 1677-81 (2003). It is true that some of our cases have applied an “economic realities” test, which looks to the totality of the circumstances involved in a work relationship, including “whether the putative employee is economically dependent upon the principal or is instead in business for himself.” Lilley v. BTM Corp., 958 F.2d 746, 750 (6th Cir. 1992); see also Armbruster v. Quinn, 711 F.2d 1332, 1340 (6th Cir. 1983). But, in more recent cases, we have made it clear that we prefer the common law agency
As explained in Simpson, the common law analysis requires the consideration of numerous factors, including:
the hiring party‘s right to control the manner and means by which the product is accomplished; the skill required by the hired party; the duration of the relationship between the parties; the hiring party‘s right to assign additional projects; the hired party‘s discretion over when and how to work; the method of payment; the hired party‘s role in hiring and paying assistants; whether the work is part of the hiring party‘s regular business; the hired party‘s employee benefits; and tax treatment of the hired party‘s compensation.
100 F.3d at 443 (citing Darden, 503 U.S. at 323-24).
Viewed in a light most favorable to Shah, the record in this case fails to disclose any dispute regarding any of these factors.
We can begin with Shah‘s deposition statement that he is “not [an] employee technically” of Deaconess:
I‘m not employee of Deaconess Hospital but Deaconess Hospital controls my privileges, my practice, and I have a contractual arrangement which gives me privilege to bring my patients there. I have a, I have a contractual arrangement with my patients to treat at Deaconess Hospital. So even though I‘m not employee technically, I‘m, I‘m just treated like employee there except I don‘t get paid from Deaconess.
Deaconess does not pay Shah for his services or provide him with a W-2 form, and Shah performs about forty-five percent of his surgeries at other hospitals.
We note in passing that Shah‘s relationship with Deaconess is nothing like the situation we addressed in Christopher, 936 F.2d 870, a Title VII retaliation case involving a scrub nurse whose hospital nursing privileges were revoked. In Christopher, we explained that the plaintiff scrub nurse was neither an employee nor an independent contractor of the defendant hospital. Id. at 877. We held nonetheless that she could pursue her Title VII claim because the hospital affected her employment opportunities with third parties, namely, physicians who employ scrub nurses if they have hospital privileges. Id. at 875. Although one might question whether the reasoning in Christopher can be reconciled with our more recent cases employing the common law agency test, we need not address the issue because nothing in the present record suggests that a partial loss of surgical privileges at Deaconess directly impairs Shah‘s employment with third parties. We therefore conclude that Shah, in his relationship with Deaconess Hospital, is not protected by the ADEA, Title VII, or
For the foregoing reasons, we AFFIRM the district court‘s judgment for Deaconess.