by Michael Fox
On appeal, the question seemed simple: was the district court's determination that a surgeon, whose privileges were revoked by a hospital, failed to state a prima facie case of age and national origin discrimination and failed to create a genuine factual issue regarding his claim that the hospital's stated reason for the action was pretextual, correct? But even simpler was the question raised by the 6th Circuit itself:
The first issue we must address—remarkably, one not raised by either party—is whether Shah’s relationship with [the hospital], 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 [the hospital]; (2) that, as such, the employment discrimination statutes upon which Shah relies do not apply; and (3) [the hospital] is entitled to judgment as a matter of law.
Shah v. Deaconess Hospital (6th Cir. 1/14/04). As the Court notes, in order to fall within the protection of either the ADEA or Title VII one must be an employee not an independent contractor, and it now joins three of its sister circuits in holding explicitly :
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 For example, in Alexander, 101 F.3d 487, the Seventh Circuit held that a physician whose hospital privileges had been revoked was not an employee within the meaning of Title VII because the hospital did not have “‘the right to control’” the physician.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).
The Court affirmed the summary judgment of the trial court, although on the different grounds that plaintiff failed to show that there existed an employer/employee relationship.