Employee Or Employer? Terminated Doctor Loses Appeal In Discrimination Case Because Of Employer Status

The Seventh Circuit Court of Appeals recently affirmed a lower court's conclusion that a doctor in a service corporation was actually an employer, and thus could not bring a claim under federal discrimination statutes based upon her termination. Bluestein v. Cent. Wisconsin Anesthesiology, S.C., 13-3724, 2014 WL 5176397 (7th Cir. Oct. 15, 2014). The case highlights the complex test that courts apply in determining whether a member of a professional business entity is eligible for protection under federal discrimination statutes.

Background

Plaintiff Linda Bluestein, M.D., an anesthesiologist, began working for Central Wisconsin Anesthesiology, S.C. (Central Wisconsin) in 1996 on a part-time basis. Her initial employment agreement identified her as an employee, and she worked in that capacity for approximately two and a half years. On January 1, 1999, Bluestein became a full partner of Central Wisconsin as well as a shareholder and member of the board of directors, which is comprised of all of the physician-shareholders. As a shareholder, she had a vote on all matters coming before the board. After a board vote in 1999, Bluestein began receiving a quarterly distribution equal to that of the other shareholders and held various positions on the board during her tenure.

In the fall of 2009, Bluestein sustained injuries in a kayak accident. She developed ischiogluteal bursitis, proximal hamstring tendinopathy, sciatica, and sacral nerve root cyst. These conditions made it difficult for her to complete her work as an anesthesiologist. Over the next several months, she intermittently took approved time off to rest and recover but she did not heal enough to return to work at full strength.

A few months later, she requested an indefinite leave of absence from her position at Central Wisconsin. The board voted to deny the request. The board then held a second vote, presenting shareholders with two additional options. The first would have granted Bluestein a four-month leave of absence on the condition that she would be terminated if she could not perform her duties as an anesthesiologist without restriction upon her return. Under the second option, Bluestein would be allowed to resign as of August 31, 2010, but would be terminated if her letter of resignation was not received by September 16, 2010. Four shareholders voted in favor of the four-month leave and 12 chose the latter option. When Bluestein did not resign by September 16, 2010, she was...