Bhanukum Ar C. Shah v. Deacon Ess Hospital

*The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0017P (6th Cir.)
File Name: 04a0017p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BHANUKUM AR C. SHAH,
Plaintiff-Appellant,
v.
DEACON ESS HOSPITAL,
Defendant-Appellee.
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No. 02-3033
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 00-00178—S. Arthur Spiegel, District Judge.
Argued: August 5, 2003
Decided and Filed: January 14, 2004
Before: BOGGS, Chief Judge; RYAN, Circuit Judge;
ROSEN, District Judge.*
_________________
COUNSEL
ARGUED: Mark Joseph Byrne, JACOBS, KLEINMAN,
SEIBEL & McNALLY, Cincinnati, Ohio, for Appellant.
2 Shah v. Deaconess Hospital No. 02-3033
Peggy M. Barker, KOHNEN & PATTON, Cincinnati, Ohio,
for Appellee. ON BRIEF: Mark Joseph Byrne, JACOBS,
KLEINMAN, SEIBEL & McNALLY, Cincinnati, Ohio, for
Appellant. Peggy M. Barker, Anthony J. Caruso, Joseph L.
Dilts, KOHNEN & PATTON, Cincinnati, Ohio, for Appellee.
_________________
OPINION
_________________
RYAN, Circuit Judge. Dr. Bhanukumar C. Shah is a
general surgeon, who for many years had surgical privileges
at Deaconess Hospital in Cincinnati, Ohio. In 1999,
Deaconess revoked part of Shah’s surgical privileges after one
of his patients died following surgery. Shah filed suit in
federal court, claiming that Deaconess discriminated against
him based on his age and East Indian national origin. The
district court granted summary judgment to Deaconess
because Shah failed to establish a prima facie case of
discrimination and failed to create a genuine factual issue
regarding his claim that Deaconess’ stated reason for the
action was pretextual. Shah appeals the grant of summary
judgment.
For reasons we shall explain, we decline to address the
merits of Shah’s claim, but we AFFIRM nonetheless, on the
ground that Shah failed to make out even a prima facie case
for entitlement to the relief he seeks because he failed to show
that there existed an employer-employee relationship between
himself and Deaconess.
I. FACTUAL BACKGROUND
Shah has held unrestricted surgical privileges at Deaconess
for over 20 years, as well as at several other Ohio hospitals.
In 1998, Shah performed thyroid resection surgery at
Deaconess on a 75-year-old woman suffering from neck
swelling. Initially, the surgery appeared to go well, but the

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No. 02-3033 Shah v. Deaconess Hospital 3
next day the patient complained of calf tenderness and
soreness in the incision area. On July 30, she was seen by one
Dr. Sarkar for treatment of thrombophlebitis. Around
midnight the following day, the hospital’s house physician
called Shah to report swelling in the patient’s neck. Shah
determined that no immediate action was necessary and that
there was no need that he travel to the hospital. He instructed
the house physician that if the swelling began to interfere with
the patient’s breathing, he should cease administering Heparin
and drain the blood from her neck. At 2:00 a.m., the house
physician called Shah a second time to report that the patient
was having trouble breathing, although her neck swelling had
not increased. Shah instructed the house physician that either
drainage of the hematoma or endotracheal intubation would
be necessary if the swelling increased. Around 3:15 a.m., the
patient went into cardiac arrest. The house physician called
a third time, prompting Dr. Shah to leave for the hospital. He
arrived about thirty minutes later to find the patient intubated
and on a respirator. He secured an operating room team and
sought consent from the patient’s family to perform
emergency surgery. The patient’s family took several hours
to give consent; Shah believed that he could afford to wait
since the patient already was intubated. Eventually, Shah
obtained consent and performed the neck drain surgery. Over
the next two weeks, the patient’s condition deteriorated, and
she died.
Pursuant to its policy of automatically reviewing all cases
involving patient death, Deaconess initiated a peer review of
Shah’s conduct. The review proceeded through numerous
stages, beginning in October 1998, with a letter to Shah from
the Clinical Review Committee, and ending in June 1999,
when the hospital’s Board of Trustees voted unanimously to
uphold an earlier finding that “a serious misjudgement
occurred in the management” of the deceased patient. The
Board of Trustees also upheld a recommendation to revoke
Shah’s privileges to perform head and neck surgery and to
impose a one-year period of concurrent monitoring and
focused review.
4 Shah v. Deaconess Hospital No. 02-3033
Shah sued Deaconess in federal district court in March
2000. He asserted three claims: (1) age discrimination in
violation of the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621-634; (2) discrimination based on
national origin in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e-2000e-17; and
(3) discrimination in violation of Ohio Rev. Code Ann.
§ 4112.02(A). Deaconess filed a motion for summary
judgment, which the district court granted on the ground that
Shah failed to establish a prima facie case because he did not
show “that he was qualified to perform head and neck
surgeries.” The court also concluded that Shah failed to rebut
Deaconess’ legitimate, non-discriminatory explanation for its
action by showing it was pretextual.
II. STANDARD OF REVIEW
“We review a district court’s grant of summary judgment
de novo, using the same standard under Rule 56(c) used by
the district court.” Policastro v. Northwest Airlines, Inc., 297
F.3d 535, 538 (6th Cir. 2002). Summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “We
view the evidence, all facts, and any inferences that may be
drawn from the facts in the light most favorable to the
nonmoving party.” Policastro, 297 F.3d at 538.
Additionally, “because a grant of summary judgment is
reviewed de novo, [we] may affirm the judgment of the
district court on any grounds supported by the record, even if
they are different from those relied upon by the district court.”
Kennedy v. Superior Printing Co., 215 F.3d 650, 655 (6th Cir.
2000).

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No. 02-3033 Shah v. Deaconess Hospital 5
III. ANALYSIS
The first issue we must address—remarkably, one not
raised by either party—is whether Shah’s relationship with
Deaconess, 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
Deaconess; (2) that, as such, the employment discrimination
statutes upon which Shah relies do not apply; and
(3) Deaconess is entitled to judgment as a matter of law.
A.
Both Title VII, 42 U.S.C. § 2000e-5(f)(1), and the ADEA,
29 U.S.C. § 626(c), empower “person[s] claiming to be
aggrieved” to bring civil actions to enforce the statutes’
substantive prohibitions against unlawful employment
practices. Under Title VII, it is “an unlawful employment
practice . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
The ADEA employs identical language with respect to age
discrimination. 29 U.S.C. § 623(a). Ohio uses similar
language in its anti-discrimination law, Ohio Rev. Code Ann.
§ 4112.02(A), and Ohio courts analyze claims under that
statute by reference to federal case law interpreting Title VII.
Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio
Civil Rights Comm’n, 421 N.E.2d 128, 131 (Ohio 1981); see
also Peters v. Lincoln Elec. Co., 285 F.3d 456, 469 (6th Cir.
2002); Cline v. Catholic Diocese, 206 F.3d 651, 668 (6th Cir.
2000).
As a general rule, the federal employment discrimination
statutes protect employees, but not independent contractors.
See Johnson v. City of Saline, 151 F.3d 564, 567-69 (6th Cir.
1998) (ADA); Simpson v. Ernst & Young, 100 F.3d 436, 443
6 Shah v. Deaconess Hospital No. 02-3033
(6th Cir. 1996) (ADEA); Christopher v. Stouder Mem’l
Hosp., 936 F.2d 870, 877 (6th Cir. 1991) (Title VII). Cf.
Falls v. Sporting News Publ’g Co., 834 F.2d 611, 613 (6th
Cir. 1987) (ADEA and Title VII). We have not applied this
rule, in a published decision, in the context of a physician
denied hospital privileges. In an unpublished decision,
Chadha v. Hardin Mem’l Hosp., No. 99-3166, 2000 WL
32023, at **2 (6th Cir. Jan. 6, 2000) (unpublished
disposition), we held that the ADA did not apply to a
physician who was an independent contractor.
Three of our sister circuits have explicitly held 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).
Like the Seventh Circuit, we apply the common law agency
test to determine whether a hired party is an independent
contractor or an employee. Johnson, 151 F.3d at 568 (citing
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322
(1992)). Cf. Clackamas Gastroenterology Assocs., P.C. v.
Wells, 123 S. Ct. 1673, 1677-81 (2003). It is true that some
of our cases have applied an “economic realities” test, which
looks to the totality of the circumstances involved in a work
relationship, including “whether the putative employee is
economically dependent upon the principal or is instead in
business for himself.” Lilley v. BTM Corp., 958 F.2d 746,
750 (6th Cir. 1992); see also Armbruster v. Quinn, 711 F.2d
1332, 1340 (6th Cir. 1983). But, in more recent cases, we
have made it clear that we prefer the common law agency

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No. 02-3033 Shah v. Deaconess Hospital 7
analysis. The substantive differences between the two tests
are minimal. Johnson, 151 F.3d at 568; Simpson, 100 F.3d at
442-43.
As explained in Simpson, the common law analysis requires
the consideration of numerous factors, including:
the hiring party’s right to control the manner and means
by which the product is accomplished; the skill required
by the hired party; the duration of the relationship
between the parties; the hiring party’s right to assign
additional projects; the hired party’s discretion over
when and how to work; the method of payment; the hired
party’s role in hiring and paying assistants; whether the
work is part of the hiring party’s regular business; the
hired party’s employee benefits; and tax treatment of the
hired party’s compensation.
100 F.3d at 443 (citing Darden, 503 U.S. at 323-24).
Viewed in a light most favorable to Shah, the record in this
case fails to disclose any dispute regarding any of these
factors.
We can begin with Shah’s deposition statement that he is
“not [an] employee technically” of Deaconess:
I’m not employee of Deaconess Hospital but Deaconess
Hospital controls my privileges, my practice, and I have
a contractual arrangement which gives me privilege to
bring my patients there. I have a, I have a contractual
arrangement with my patients to treat at Deaconess
Hospital. So even though I’m not employee technically,
I’m, I’m just treated like employee there except I don’t
get paid from Deaconess.
Deaconess does not pay Shah for his services or provide him
with a W-2 form, and Shah performs about forty-five percent
of his surgeries at other hospitals.
8 Shah v. Deaconess Hospital No. 02-3033
There is no evidence that Deaconess has a right to control
the manner and means of Shah’s performance. Although the
hospital requires all physicians having surgical privileges to
abide by the applicable standard of care, this requirement
applies regardless of employment status and is enforced only
after-the-fact, through the peer review process. Nothing in
the record suggests that Deaconess has the right to interfere
with Shah’s medical discretion or otherwise control the
manner and means of his performance as a surgeon. By
Shah’s own admission, he treats his own patients and
contracts freely with other hospitals. There is no evidence
that Shah must accept patients referred to him by the hospital,
and, as far as the record discloses, Deaconess does not dictate
Shah’s hours or hire and pay Shah’s assistants. As Shah
testified at his deposition, he receives no payment from
Deaconess and is not treated as an employee for tax purposes.
Thus, there is no proof of the existence of an employment
relationship between Shah and Deaconess.
We note in passing that Shah’s relationship with Deaconess
is nothing like the situation we addressed in Christopher, 936
F.2d 870, a Title VII retaliation case involving a scrub nurse
whose hospital nursing privileges were revoked. In
Christopher, we explained that the plaintiff scrub nurse was
neither an employee nor an independent contractor of the
defendant hospital. Id. at 877. We held nonetheless that she
could pursue her Title VII claim because the hospital affected
her employment opportunities with third parties, namely,
physicians who employ scrub nurses if they have hospital
privileges. Id. at 875. Although one might question whether
the reasoning in Christopher can be reconciled with our more
recent cases employing the common law agency test, we need
not address the issue because nothing in the present record
suggests that a partial loss of surgical privileges at Deaconess
directly impairs Shah’s employment with third parties. We
therefore conclude that Shah, in his relationship with
Deaconess Hospital, is not protected by the ADEA, Title VII,
or Ohio. Rev. Code Ann. § 4112.02(A).

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No. 02-3033 Shah v. Deaconess Hospital 9
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment for Deaconess.

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