Tuesday, November 25, 2014

Doctor Found to be "Employer" Rather than "Employee" under the Americans with Disabilities Act (ADA)

November 2014
By: Nancy E. Joerg, Esq.

On October 15, 2014, the Seventh Circuit Court of Appeals (“Court”) affirmed summary judgment in a Title VII and Americans with Disabilities Act (“ADA”) lawsuit. The Court found that the Plaintiff, Dr. Linda Bluestein – a part owner of the defendant medical practice, was not an employee and therefore not covered by Title VII or the ADA. Bluestein v. Central Wisconsin Anesthesiology, No. 13-3724 (7th Cir. 10-15-2014) (“Bluestein”).

Dr. Bluestein was not successful in convincing the Court that she was an employee of the medical practice. In order to be entitled to protection under Title VII, a person must be an employee of an employer who employs 15 or more employees.

In Bluestein, Dr. Bluestein (an anesthesiologist) filed a Title VII and ADA lawsuit against a medical practice in which she was a partner/shareholder and member of the Board of Directors. Dr. Bluestein had an equal right to vote on all Board of Directors matters, shared equally in the profits and liabilities of the medical practice, participated in hiring and firing decisions, and had an equal right with all other physician-shareholders to create and amend employment policies.

FACTUAL BACKGROUND OF THE BLUESTEIN CASE: Dr. Bluestein was injured in a kayaking accident. She then requested a leave of absence from the medical practice to recover from her injuries. After providing her various accommodations and allowing Dr. Bluestein to use paid leave time, the medical practice voted against providing another four months of leave to Dr. Bluestein (and voted to instead either fire Dr. Bluestein or allow her to resign from her position). After Dr. Bluestein did not choose to resign, she was fired by the medical practice. Dr. Bluestein then sued the medical practice for discrimination under the ADA, Rehabilitation Act and Title VII. Dr. Bluestein argued that she was an employee of the medical practice!

The U.S. District Court for the District of Western Wisconsin considered the six factors set forth by the U.S. Supreme Court in a similar 2003 case, and found Dr. Bluestein was an employer (rather than an employee) of the medical practice. She appealed. The Seventh Circuit Court of Appeals agreed that she was not an employee.

SEVENTH CIRCUIT ANALYSIS: The Seventh Circuit Court of Appeals observed that Dr. Bluestein was part of the Board of Directors at her medical practice, and she therefore voted on all major decisions at the practice. The Seventh Circuit noted that the Board of Directors of the medical practice contained all 16 partners at Dr. Bluestein’s practice (and that the Board of Directors voted on all major decisions, including setting policies and procedures for the practice).

The Seventh Circuit looked at the common law definition of “servant” in determining whether or not Dr. Bluestein was an employee. Under the common law definition, a servant is a person whose work is controlled (or is subject to a right to control) by the “master.” The Seventh Circuit observed that the element of control should be the key factor in deciding whether Dr. Bluestein was an employee of the medical practice. The Seventh Circuit noted that Dr. Bluestein enjoyed the same right of control that every other physician-shareholder in the medical practice had. She possessed no more (or less) of a right to control the medical practice than any other physician-shareholder.

The Seventh Circuit held that, under these circumstances, Dr. Bluestein was not an employee but instead an employer herself, who therefore had no right to sue the medical practice for employment discrimination under the ADA. The fact that she was out-voted by her partners on many matters, including her own employment termination, and signed an employment contract, did not make her an employee.

THERE IS WELL-SETTLED LAW THAT EMPLOYERS CANNOT SUE UNDER THE ADA OR OTHER CIVIL RIGHTS STATUTES: The details of Dr. Bluestein’s work as an anesthesiologist were not supervised or controlled by anyone at the medical practice. Although Dr. Bluestein often found herself in the minority position among her fellow physician-shareholders, it was Dr. Bluestein’s “right of control” that made her an employer. Thus, because she was found by the Court to be an employer, all of her discrimination claims failed as a matter of law.

Questions? Contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.