Deborah Anne Wells v. Clackamas Gastroenterology Associates, P.C., an Oregon Corporation , 271 F.3d 903 ( 2001 )

Opinion by Judge TASHIMA; Dissent by Judge GRABER.

TASHIMA, Circuit Judge:

Plaintiff-Appellant Deborah Anne Wells appeals from the order of the district court granting summary judgment in favor of Defendant-Appellee Clackamas Gastroen-terology Associates, P.C. (Clackamas) on her claim under the Americans With Disabilities Act of 1990 (ADA). The district court held that Clackamas was not an “employer,” and therefore not a “covered entity,” within the meaning of the ADA because it did not have 15.or more employees during the relevant time periods. We must decide whether Clackamas’ physician-shareholders were “employees” within the meaning of the ADA. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

I. BACKGROUND

Wells was an employee of Clackamas, an Oregon professional corporation, from 1986 until her termination in May 1997. During the relevant time period, four physician-shareholders, all of whom participated in the management and operations of the medical practice, were the shareholders and directors of Clackamas. In addition to the physician-shareholders, 12-15 other persons were employed by Clacka-mas during this time period.

When Clackamas terminated Wells’ employment, she brought an action against Clackmas alleging unlawful discrimination on the basis of disability under Title I of the ADA, 42 U.S.C. §§ 12101-12117, and Or.Rev.Stat. §§ 659.436-659.449. She also brought a claim for common law wrongful discharge.

Clackamas moved for summary judgment against Wells’ ADA claim, arguing that it was not an “employer” and, consequently, not a “covered entity,” within the meaning of the ADA because it did not have 15 or more employees for the 20 weeks required by the statute. It is undisputed that if Clackamas’ physician-shareholders are not counted as “employees,” then it would have had too few employees to qualify as an “employer.” On the other hand, if the physician-shareholders are counted as “employees,” then the number of employees would have exceeded the number required to bring Clackamas under the coverage of the ADA. Relying on the “economic realities” test, Clackamas argued that its four physician-shareholders should be regarded as “partners” and not as “employees” within the meaning of 42 U.S.C. § 12111(4) & (5).

The magistrate judge accepted Clacka-mas’ argument and recommended that the court grant the motion for summary judgment on the ADA claim and decline to exercise supplemental jurisdiction over the remaining claims. The district court accepted the recommendations of the magistrate judge in their entirety and entered judgment dismissing the action. Wells timely appeals.

II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo and must determine whether, viewing the evidence in the light most favorable to the non-moving party, there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

III. DISCUSSION

Whether shareholders of a professional corporation who are actively engaged in conducting the business of the corporation are “employees” under the ADA is an issue of first impression in this Circuit. Under the ADA, it is unlawful for a “covered entity” to discriminate against a qualified individual with a disability on the basis of that disability. 42 U.S.C. § 12112(a). The term “covered entity” includes an “employer.” Id. § 12111(2). An “employer” is defined as “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” Id. § 12111(5)(A). An “employee” is defined as “an individual employed by an employer.” Id. § 12111(4).

No circuit has interpreted these specific provisions of the ADA. There are, however, a number of cases that interpret nearly identical language in other federal employment discrimination statutes, including Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. These same cases also state that their interpretations should apply to all employment discrimination statutes. See e.g., Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir.1997) (‘We regard Title VII, ADEA, ERISA, and FLSA as standing in pari passu and endorse the practice of treating judicial precedents interpreting one such statute as instructive in decisions involving another.”); Hyland v. New Haven Radiology Assocs., P.C., 794 F.2d 793, 796 (2d Cir.1986) (holding that for the FLSA, Title VII, and the ADEA, “cases construing the definitional provisions of one are persuasive authority when interpreting the others”).

In EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177 (7th Cir.1984), the Seventh Circuit applied an “economic realities” test and concluded that “a shareholder in a professional corporation is far more analogous to a partner in a partnership than it is to the shareholder of a general corporation.” Id. at 1178. On this basis, the. court concluded that because they are “really” partners, shareholders in professional corporations are not to be counted as employees for purposes of federal employment discrimination law. Id.

This approach was rejected by the Second Circuit in Hyland. In Hyland, the court held that the use of the corporate form, including a professional corporation, “precludes any examination designed to determine whether the entity is in fact a partnership.” 794 F.2d at 798. The incor-porators of a professional corporation make a deliberate decision to adopt the corporate form for their business in order to avail themselves of important tax, employee benefit, and civil liability advantages. Id. Having freely made the choice to adopt this form of business organization “they should not now be heard” to say that their firm is “essentially a medical partnership,” and not a corporation. Id.

Given the broad purpose of the ADA, see 42 U.S.C. § 12101, we find Hyland’s reasoning to be considerably more persuasive than Doivd’s. Because the decision to incorporate is presumably a voluntary one, there is no reason to permit a professional corporation to secure the “best of both possible worlds” by allowing it both to assert its corporate status in order to reap the tax and civil liability advantages and to argue that it is like a partnership in order to avoid liability for unlawful employment discrimination. Therefore, following the Second Circuit’s reasoning in Hyland, we hold that Clackamas’ shareholder-employees should be counted as “employees” under the ADA and “that any inquiry respecting partnership status [is] irrelevant.” Hyland, 794 F.2d at 798.

Clackamas contends that Strother v. Southern California Permanente Medical Group, 79 F.3d 859 (9th Cir.1996), directs the court to use the “economic realities test” in this case. Strother, however, is distinguishable from this case and does not address the split between Dowd and Hy-land regarding the status of shareholders of a professional corporation. In Strother, a case arising under state law, we held that partners can, under appropriate circumstances, be deemed to be employees for the purposes of the employment discrimination laws.

It is one thing to apply an “economic realities” test to determine that a nominal partner should, under appropriate circumstances, be considered an “employee” in order to prevent a firm from labeling the* bulk of its employees as partners simply to insulate itself from liability for discrimination. It is quite another thing, however, to apply the “economic realities” test in order to classify shareholder-employees of a corporate enterprise as partners. See Hyland, 794 F.2d at 798. While the shareholders of a corporation may or may not be “employees,” they can never be partners in that corporation because the roles are “mutually exclusive.” Id.

In the case at bench, the status of Clac-kamas’ four physician-shareholders as employees is clear. During the relevant time periods, in addition to being shareholders and directors of Clackamas, the four physician-shareholders actively participated in the management and operation of the medical practice and literally were employees of the corporation under employment agreements. Therefore, the physician-shareholders of Clackamas should be regarded as “employees” within the meaning of 42 U.S.C. § 12111(4) & (5); consequently, Clackamas had a sufficient number of employees to qualify as an “employer” and as a “covered entity” under the statute.

IV. CONCLUSION

Because we conclude that Clackamas’ physician-shareholders are employees of the corporation, not partners in it, the district court’s grant of summary judgment in favor of Clackamas is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.