Moshe Ashkenazi v. South Broward Hospital District , 607 F. App'x 958 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15061
________________________
D.C. Docket No. 0:11-cv-61403-JIC
MOSHE ASHKENAZI,
Plaintiff - Appellant,
versus
SOUTH BROWARD HOSPITAL DISTRICT
d.b.a. Memorial Healthcare System,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 23, 2015)
Before WILIAM PRYOR and JORDAN, Circuit Judges, and WALTER, * District
Judge.
*
Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
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PER CURIAM:
Dr. Moshe Ashkenazi is a surgeon. After his surgical privileges were
revoked, Dr. Ashkenazi sued the South Broward Hospital District, where he
provided on-call services, asserting violations of the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq., and the Florida Civil Rights Act, Fla.
Stat. § 760.01, et seq. The district court granted summary judgment in favor of the
District, in part because it found that Dr. Ashkenazi was an independent contractor.
Dr. Ashkenazi argues on appeal that the district court erred because (1) he
showed that there was a genuine issue of material fact as to whether he was an
employee of the District, and thus able to bring discrimination and retaliation
claims under the ADEA and FCRA; (2) Florida law permits independent
contractors to bring retaliation suits under the FCRA; and (3) the protections of the
ADEA and FCRA encompass his claims that the District interfered with his
employment relationships with third parties. After a thorough review of the record
and the parties’ briefs, and with the benefit of oral argument, we affirm the district
court’s grant of summary judgment.
I
Dr. Ashkenazi is a thoracic and vascular surgeon who was born in 1939. He
had surgical privileges with the South Broward Hospital District d/b/a Memorial
Healthcare System. Pursuant to renewable contracts, he worked on-call shifts in
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several emergency rooms within the District for several years. In 2010, he was
removed from the hospitals’ on-call schedules. In 2012, the District revoked his
major surgical privileges and reported the revocation to the Florida Department of
Health and Human Services and the Florida Board of Medical Examiners. Dr.
Ashkenazi alleged that the District took these actions against him due to his age
and his participation in protected activity.
Dr. Ashkenazi sued the District, alleging age discrimination and retaliation
under the ADEA and FCRA, and asserting that the District’s actions “denied him
opportunities for and access to employment by private patients.” The District
moved for summary judgment, arguing in part that the discrimination and
retaliation claims failed because Dr. Ashkenazi was not a District employee. Even
if he were an employee, the District argued that the claims failed on the merits.
Finally, the District argued that the Eleventh Circuit does not recognize a claim for
interference with third-party employment under the ADEA or the FCRA.
The district court granted summary judgment in favor of the District, ruling
that Dr. Ashkenazi was an independent contractor, and not an employee. It also
disagreed that Dr. Ashkenazi had shown genuine issues of material fact about the
nature of his employment relationship. Finally, the district court concluded that
although the Eleventh Circuit permits Title VII claims for interference with
employment relationships with third parties, Dr. Ashkenazi had not sufficiently
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shown that he was “deprived of specific employment opportunities with third
parties.” Dr. Ashkenazi now appeals.
II
“We review de novo the district court’s order granting summary judgment.”
Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001). All facts
and reasonable inferences are viewed in the light most favorable to the non-moving
party, here Dr. Ashkenazi. See id. Summary judgment is appropriate when no
genuine issue of material fact exists. See id. But a fact is material “only when the
dispute over it has the potential to change the outcome of the lawsuit under the
governing law” if it is found in the non-movant’s favor. Zaben v. Air Prods. &
Chems., Inc., 129 F.3d 1453, 1455 (11th Cir. 1997) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). And a dispute is genuine only “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
III
The first issue on appeal is not the merits of the age discrimination and
retaliation claims, but rather whether Dr. Ashkenazi can bring them under the
ADEA and FCRA given the nature of his working relationship with the District.
“Federal case law interpreting . . . the ADEA applies to cases arising under
the FCRA.” City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th DCA
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2008). Thus, Dr. Ashkenazi’s FCRA claims—or at least his discrimination claims
under the FCRA—rise or fall with the ADEA claims.
The ADEA, in relevant part, prohibits employers from “fail[ing] or
refus[ing] to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). The
ADEA also prohibits employers from “discriminat[ing] against any of [its]
employees” because the employee “opposed any practice made unlawful by this
section, or because” the employee “made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or litigation under this
chapter.” Id. § 623(d).
To seek relief under the ADEA, a plaintiff must be an employee. See
Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495 n.13 (11th Cir. 1993) (“The
ADEA does not provide relief for discrimination against an independent
contractor.”). The ADEA does not provide guidance as to the scope of the term
“employee,” beyond defining an “employee” as “ ‘an individual employed by any
employer.’ ” Id. at 1495 (quoting 29 U.S.C. § 630(f)). As explained below, three
different tests are used to determine whether a person is an independent contractor
or an employee under federal law.
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First, there is the common-law agency test, which focuses on a “ ‘hiring
party’s right to control the manner and means by which the product is
accomplished.’ ” Id. (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S.
730, 751 (1989)). In addition to looking at control over the manner and means of
the work, courts using the common-law agency test consider a number of other
factors:
“the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the
parties; whether the hiring party has the right to assign additional
projects to the hired party; the extent of the hired party's discretion
over when and how long to work; the method of payment; the hired
party's role in hiring and paying assistants; whether the work is part of
the regular business of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and the tax treatment of
the hired party.”
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992) (quoting Reid,
490 U.S. at 751-52, and describing, in an ERISA case, the common-law agency
test as containing the above Reid factors). See also Clackamas Gastroenterology
Assocs., P.C. v. Wells, 538 U.S. 440, 444-45 (2003) (applying the common-law
agency test and Reid factors in an ADA case involving physician-shareholders of a
professional corporation).
Second, we have used, in FLSA cases, an “economic realities” test. See
Donovan v. New Floridian Hotel, Inc., 676 F.2d 468, 470-71 (11th Cir. 1982).
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This test analyzes the extent to which the individual is dependent on the employer.
See Daughtrey, 3 F.3d at 1495.
And third, “in the context of the federal employment discrimination
statutes,” we have used a hybrid approach. Id. Under the hybrid approach, we
look at the common-law agency test, “tempered by a consideration of the
‘economic realities’ of the hired party’s dependence on the hiring party.” Id. See
also Cobb v. Sun Papers, Inc., 673 F.2d 337, 340-41 (11th Cir. 1982).
We have not expressly decided which test should be applied in ADEA cases.
See Garcia, 104 F.3d at 1266-67 (concluding in an ADEA case that, under either
the common-law agency test or the hybrid approach, the plaintiff had shown
sufficient disputed facts about the amount of control the defendant exercised over
his work to survive a directed verdict motion). See also Daughtrey, 3 F.3d at
1495-96 (concluding the same in an ADEA case and reversing in part the district
court’s summary-judgment order). And we do not need to do so here because Dr.
Ashkenazi has failed to create a genuine issue of material fact under either the
common-law agency test or the hybrid approach.
As the Fourth Circuit recognized in a Title VII case, doctors and hospitals
have “a competition for control that is inherent in the duty of each to discharge
properly its professional responsibility”: a “doctor must have direct control to
make decisions for providing medical care” and “hospital[s] must assert a degree
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of conflicting control over every doctor’s work.” Cilecek v. Inova Health Sys.
Servs., 115 F.3d 256, 260 (4th Cir. 1997). See also Wojewski v. Rapid City Reg.
Hosp., Inc., 450 F.3d 338, 344 (8th Cir. 2006) (holding that, in an ADA and
Rehabilitation Act case, an agreement’s “heightened level of personal control”
over a doctor was “akin to the normal tensions discussed in Cilecek” and merely
“reasonable steps [by the hospital] to ensure patient safety and avoid professional
liability while not attempting to control the manner in which [the doctor]
performed operations”). The Fourth Circuit has explained that, in the context of
medical professions, it is “[m]ore enlightening” to analyze “the control involved in
deciding when a doctor performs his services, the number of hours he performs
them, and the administrative details incident to his professional services.” Cilecek,
115 F.3d at 260.
Based in part on a doctor’s ability to control the manner in which the doctor
provides his or her services, many circuits evaluating employment discrimination
claims by doctors against hospitals have found that the doctors were independent
contractors and not employees. See, e.g., Wojewski, 450 F.3d at 344 (ADA &
Rehabilitation Act); Shah v. Deaconess Hosp., 355 F.3d 496, 500 (6th Cir. 2004)
(ADEA & Title VII); Cilecek, 115 F.3d at 262-63 (Title VII); Alexander v. Rush N.
Shore Med. Ctr., 101 F.3d 487, 493 (7th Cir. 1996) (Title VII); Diggs v. Harris
Hosp.-Methodist, Inc., 847 F.2d 270, 272-73 (5th Cir. 1988) (Title VII). But, as
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the Supreme Court counsels, no one factor is determinative. See Reid, 490 U.S. at
752. A doctor’s exercise of professional judgment about a patient’s medical care is
not a dispositive factor in this analysis; otherwise, all physicians would be
“carve[d] out, . . . as a category, from the protections of the antidiscrimination
statutes.” Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 228-29 (2d Cir.
2008). Indeed, in Garcia we previously recognized that a doctor who provided
emergency room services for a Florida hospital pursuant to a contract could
potentially be an employee. We held that a factual dispute existed because the
doctor presented, in part, evidence that “the medical directors oversaw the medical
care he provided.” Garcia, 104 F.3d at 1267.
Thus, the important takeaway from existing precedent is that each case is
factually specific and context dependent on the precise nature of the working
relationship between the parties. There may be times where a factual dispute about
the parties’ working relationship requires a jury to determine whether the doctor is
an employee or an independent contractor. At other times, the material facts may
be so clear and undisputed that a reasonable jury could come to only one
conclusion. This case is an example of the latter situation.
The relevant facts are these. Dr. Ashkenazi owned a corporation through
which he operated his private practice. Dr. Ashkenazi determined the salary he
received from the corporation, and the corporation annually issued him a Form W-
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2 for income tax purposes. The corporation hired, fired, and paid its employees.
Dr. Ashkenazi saw his private patients at offices maintained by the corporation,
and his patients and their insurance companies paid the corporation for his
services.
Dr. Ashkenazi did not plead and has not argued on appeal that he was an
employee of the District based on the services he provided to his private patients
through his private corporation. Instead, Dr. Ashkenazi argues that he was an
employee through his provision of on-call services at several hospital emergency
rooms within the District. The services he provided during the on-call ER shifts
comprised approximately 10% of his practice.
Beginning in 2006, Dr. Ashkenazi entered into written contracts with the
District governing his performance. The contracts stated: “It is expressly
acknowledged by the parties hereto that [Dr. Ashkenazi] is an ‘independent
contractor,’ and nothing in this Agreement is intended nor shall be construed to
create an employer/employee relationship or partnership or joint venture
arrangement.” Although not controlling, the contract affirmatively states that the
parties intended to create an employer-independent contractor relationship, not one
of employer-employee. And that is a relevant factor. See Daughtrey, 3 F.3d at
1492 (finding the parties’ intent probative, but not decisive).
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The parties also treated the method of payment, tax treatment, and the
provision of benefits akin to an employer-independent contractor relationship.
Under the contracts, the District paid Dr. Ashkenazi a flat rate—not an hourly
rate—for each 24-hour on-call shift that he was available. The District did not
provide Dr. Ashkenazi with any other financial benefits and issued him a Form
1099 for income tax purposes. When Dr. Ashkenazi saw ER patients on-call, his
corporation—not the District—billed the patients or their insurance companies for
his services. The District did not bill for services that Dr. Ashkenazi performed
while providing on-call services.
The District did provide Dr. Ashkenazi with hospital facilities, support
personnel, and equipment when he performed surgeries, and it billed the patients
directly for the hospital staff, services, and equipment it provided. But the
District’s provisions of its facilities, equipment, and personnel are “inherent in the
provision of emergency medical services” whether the doctor “is an employee of
the hospital or simply has privileges [to use] the hospital.” Cilecek, 115 F.3d at
262. Dr. Ashkenazi admitted that his surgical practice is the type that must be
performed in a hospital setting, regardless of his actual working relationship with
the District. Thus, the location of the work and the source of the instrumentalities
and tools, in this case, do not shed a lot of light on the nature of the parties’
working relationship.
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It is true, as Dr. Ashkenazi points out, that the District’s chief of vascular
services—a non-employee physician—prepared the on-call ER schedules. But Dr.
Ashkenazi had flexibility in deciding when and where he would work. For
example, during any given 24-hour on-call shift, the District did not require Dr.
Ashkenazi to stay on a hospital’s premises. He could meet with patients at his
private practice or otherwise attend to his private business unless he was actually at
a hospital on a call. While on-call for one hospital, Dr. Ashkenazi could perform
surgeries on his private patients—even at other hospitals—or do other work at his
private office. And Dr. Ashkenazi was able to coordinate with other surgeons to
cover for him if he was unable to come to a hospital during a scheduled shift.
Further, the District could not assign additional patients to Dr. Ashkenazi beyond
those whom he treated during his on-call shifts. Thus, the District had no right to
assign additional work to Dr. Ashkenazi, and he could control when and how long
he worked on-call.
Dr. Ashkenazi does not dispute these facts, but rather argues that other
evidence in the record shows that he was an employee of the District. Specifically,
he argues that the District counseled him to forgo limb salvage surgery in favor of
amputation on elderly patients; instructed him to get second opinions on complex
surgeries; subjected some of his past surgeries to a more strenuous review than the
peer-review process; insisted that other doctors attend his surgeries as proctors;
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stopped scheduling him for on-call emergency surgeries because he could not
guarantee that a proctor would be present; instructed him to use non-physician
health practitioners during surgery; required him to keep logs and other reports of
the services that he provided; instructed him to attend certain continuing education
events; and ultimately revoked his major surgical privileges. We disagree that this
evidence creates a genuine issue of material fact.
First, the record-keeping tasks about which Dr. Ashkenazi complains are
administrative tasks required by the District that in no way interfered with or
controlled the manner or means by which he performed his job. These same
requirements were demanded of all doctors who had privileges at the District, and
as such—similar to the factors about the location of the work and the provision of
tools and instrumentalities—cannot be considered requirements unique to only
District employees.
Second, the instances where Dr. Ashkenazi says that the District controlled
the provision of his medical services did not arise until 2008—two years after he
began working as an on-call vascular surgeon for the District—and resulted from
the District’s additional oversight following a documented issue with his level of
medical care. There is no record evidence that the District exerted any similar
“control” over Dr. Ashkenazi prior to its efforts to closely monitor his cases to
protect its patients’ well-being and itself from liability.
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In fact-specific and context-dependent cases such as this one, we must
examine the parties’ working relationship in its basic form. Taking the record facts
in the light most favorable to Dr. Ashkenazi, the District did not “transform” the
working relationship into one of employer-employee by requiring him to perform
surgeries only with proctors, attend certain national conferences covering surgical
techniques, and stop performing limb salvage surgeries with high risks of failure
on elderly patients. Rather, these efforts to “control” Dr. Ashkenazi were the
hospital district’s “reasonable steps . . . to ensure patient safety and avoid
professional liability.” See Wojewski, 450 F.3d at 344. The record evidence
indicates that the proctors were present only if something went wrong, or if Dr.
Ashkenazi wanted a second opinion. They did not speak with patients or instruct
Dr. Ashkenazi as to the medical decisions he should make. Further, the record
shows that Dr. Ashkenazi scheduled his own proctors. Dr. Ashkenazi was not
forced to use certain medical professionals as proctors who attempted to
“reeducate[e]” him or mentor him on how to perform the surgeries differently than
he ordinarily would. Cf. Salamon, 514 F.3d at 224-25, 229-31 (reversing district
court’s summary-judgment order in favor of hospital which had created a
“reeducation” program designed to change a doctor’s medical decisions, because
the program was not motivated by statutory requirements, but instead an effort to
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maximize the hospital’s revenue and punish the doctor for complaining about
harassment).
Finally, Dr. Ashkenazi argues that our prior holding in Garcia compels us to
reverse the district court’s grant of summary judgment in favor of the District and
remand his case for trial. In Garcia, 104 F.3d at 1258, we reversed a district
court’s ruling that a doctor was an independent contractor and not an employee.
Although the doctor in Garcia also had a contract with a hospital that specified the
parties’ working relationship as that of employer-independent contractor, Garcia
does not mandate reversal here.
Garcia was on appeal from the district court’s dismissal for lack of subject-
matter jurisdiction. The district court had held that the defendant was not an
“employer” because it counted emergency room doctors as “independent
contractors,” and not as employees. Our task was to determine whether a judge, as
opposed to a jury, should determine on the record before us whether the defendant
was an employer under the ADEA. We held that whether or not a defendant is an
employer is an element of an ADEA claim, and thus, it should be resolved by the
jury. Garcia, 104 F.3d at 1258.
Notably, the judge in Garcia who erroneously dismissed the case had
previously denied summary judgment, concluding that questions of fact existed as
to whether Dr. Garcia was an employee or an independent contractor. Id. at 1259.
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Although Garcia does not give us an exhaustive description of the evidence, some
of the evidence indicated that the “medical directors oversaw the medical care [Dr.
Garcia] provided, scheduled his shifts and paid him on an hourly basis.” Id. at
1267. Here, there is no disputed issue of material fact about the level of control the
District had over Dr. Ashkenazi. On this record, we affirm the district court’s
grant of summary judgment.
IV
Dr. Ashkenazi also argues that, even if he is an independent contractor as a
matter of law, the FCRA permits retaliation claims by independent contractors who
complain about discrimination. Florida courts have held that FCRA retaliation
claims generally follow federal case law, but the plain language of the FCRA and
ADEA retaliation provisions differ. Compare Fla. Stat. § 760.10(7) (stating that it
is unlawful to retaliate against “any person”), and id. § 760.02(6) (defining a
“person” under the FCRA as including “individual[s]”), with 29 U.S.C. § 623(d)
(specifically protecting, as applicable in this context, only “employees or
applicants for employment”). See also Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 174 (2009) (“[W]e must be careful not to apply rules applicable under one
statute to a different statute without careful and critical examination.” (internal
quotation marks and citation omitted)).
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We are not aware of any Florida appellate case that expressly construes the
FCRA’s “any person” language in age-based retaliation claims as pertaining to
only employees, and not independent contractors. And we have never adopted a
categorical rule that the scope of the entire FCRA is identical to the ADEA, such
that a person must be an employee to proceed in an age-based FCRA retaliation
suit. We decline to pass on this question today.
Here, Dr. Ashkenazi’s state law retaliation claim against the District is
barred not by the FCRA’s language, but rather by another Florida statute which
grants immunity to its hospital districts for suits arising out of their peer review
and credentialing processes:
There shall be no monetary liability on the part of, and no cause of
action for injunctive relief or damages shall arise against, any licensed
facility, its governing board or governing board members, medical
staff, or disciplinary board or against its agents, investigators,
witnesses, or employees, or against any other person, for any action
arising out of or related to carrying out the provisions of this section,
absent intentional fraud.
Fla. Stat. § 395.0191(7). See Lawnwood Med. Ctr., Inc. v. Desai, 54 So. 3d 1027,
1030 (Fla. 4th DCA 2011) (“Absent specific allegations of intentional fraud, [the
statute’s] immunity protects the hospital.”). The parties do not dispute that Dr.
Ashkenazi’s claims arose out of the processes covered by § 395.0191. As a result,
Dr. Ashkenazi’s retaliation claim is barred.
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Dr. Ashkenasi argues that § 395.0191 is modeled after a federal statute that
exempts similar professional-review actions from immunity under a number of
federal civil rights statutes. See 42 U.S.C. § 11111. But we must apply the plain
language of § 395.0191, as written and enacted by the Florida Legislature and as
interpreted by the Florida courts, and not the language of a separate federal statute
that was enacted by an entirely different legislative body.
Dr. Ashkenazi also contends that he sufficiently pled “intentional fraud”
because he alleged that two doctors used the hospital credentialing process to get
rid of him (in essence articulating a “cat’s paw” theory of liability). The problem
is that Dr. Ashkenazi’s second amended complaint fails to allege that the District
made a misrepresentation about a material fact that it knew to be false. Thus, Dr.
Ashkenazi did not sufficiently plead intentional fraud, and his FCRA age-based
retaliation suit is barred by § 395.0191(7).
V
Dr. Ashkenazi next argues that the district court erred in holding that he had
not sufficiently shown that the District interfered with his employment
opportunities by third parties (i.e., a potential business arrangement with Dr.
Feldbaum, and employment by his private patients). The district court granted
summary judgment on this claim because it concluded that Dr. Ashkenazi showed
he had only preliminary discussions with Dr. Feldbaum about “a possible business
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arrangement,” and there was no “existing, or even reasonably certain, employment
relationship between [Dr.] Ashkenazi and another party.” The district court also
ruled that Dr. Ashkenazi could not proceed with this claim with regard to his
private patients because “a patient is not a doctor’s employer.” Though we analyze
this claim somewhat differently than the district court, we agree with its ultimate
conclusion that summary judgment was proper.
We have never decided whether a plaintiff can bring a legally-cognizable
claim under the ADEA for interference with employment opportunities with third
parties. We have, however, recognized that such a claim is possible under Title
VII. See Pardazi v. Cullman Med. Ctr., 838 F.2d 1155, 1156 (11th Cir. 1988)
(reversing the district court’s grant of summary judgment and holding that Title
VII protections “extend to a claim that a defendant has interfered with an
individual’s employment relationship with a third party”). We need not decide this
issue today, because even if such a claim were legally cognizable under the ADEA
or the FCRA, Dr. Ashkenazi’s claim fails on the merits.
First, Dr. Ashkenazi cannot prevail on his claim that the District interfered
with an employment relationship with Dr. Feldbaum. For one thing, his second
amended complaint is silent about any employment relationship he had or might
have had with Dr. Feldbaum. Instead, the complaint alleges only that the District
denied Dr. Ashkenazi the opportunity for employment by “private patients.”
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Moreover, the record does not show that Dr. Ashkenazi raised this theory prior to
his summary-judgment response. See Lightfoot v. Henry Cnty. Sch. Dist., 771 F.3d
764, 779 (11th Cir. 2014) (holding that a “district court did not err in declining to
consider [a] new factual basis [for an existing claim] when it was raised in [the
plaintiff’s] opposition to summary judgment”).
Even if we assume that Dr. Ashkenazi properly raised the interference claim
concerning Dr. Feldbaum, the claim still fails. Pardazi, our Title VII case
recognizing the viability of interference claims, involved a hospital’s denial of staff
privileges that allegedly interfered with a doctor’s employment contract with an
Alabama corporation. Pardazi, 838 F.2d at 1156. Here, Dr. Ashkenazi had no
employment contract with Dr. Feldbaum, and he offered no evidence beyond
speculation about entering a possible employment relationship with Dr. Feldbaum.
Because Dr. Ashkenazi cannot show that the District interfered with an actual,
specific employment relationship, the district court correctly granted summary
judgment on this claim.
Second, Dr. Ashkenazi cannot prevail on his claim with regard to his private
patients. We have previously extended Title VII protection to interference claims
based on employment relationships with third parties. See id. But we expressly
declined to decide whether a plaintiff could bring an interference claim despite the
absence of any employer-employee relationship at all. See id. at 1156 n.1.
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Although some courts have recognized such a claim, see id. (listing cases), other
courts have required at least “some connection with an employment relationship
for Title VII protections to apply,” Mitchell v. Frank R. Howard Mem. Hosp., 853
F.2d 762, 767 (9th Cir. 1988).
In Title VII cases where a doctor has claimed that patients were his
employers, at least five circuit courts have rejected the claims because patients do
not control the manner and means by which a doctor performs his services. See
Salamon, 514 F.3d at 233; Bender v. Suburban Hosp., Inc., 159 F.3d 186, 190 (4th
Cir. 1998); Alexander, 101 F.3d at 493 n. 2; Mitchell, 853 F.2d at 767; Diggs, 847
F.2d at 274. Further, even if an ADEA interference claim did not require evidence
of an employer-employee relationship, the claim nonetheless fails. Dr. Ashkenazi
specifically alleged that he was “denied . . . opportunities for and access to
employment by private patients,” and his argument depends upon us equating the
hospitals’ emergency room intake procedure to an employment agency and the
patients referred by the hospital to employers. Without deciding whether we
would recognize interference claims under the ADEA, we hold that in the
traditional doctor-patient relationship, patients are not doctors’ employers under
federal discrimination statutes like the ADEA. Thus, Dr. Ashkenazi’s claim fails.
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VI
We affirm the district court’s grant of summary judgment in favor of the
District.
AFFIRMED.
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