Holland v. Mercy Health

495 F.Supp.3d 582

Fred W. HOLLAND, M.D., Plaintiff

v.MERCY HEALTH, et al., Defendants

Case No. 3:18-cv-490-JGC

United States District Court, N.D. Ohio, Western Division.

Filed October 20, 2020

Jason A. Archinaco, Michael A. O'Leary, The Archinaco Firm, Pittsburgh, PA, Randall C. Dixon, Taylor R. Ward, Dixon Hayes Witherell & Ward, Toledo, OH, for Plaintiff.

Thomas J. Wiencek, R. Scot Harvey, Brouse McDowell, Akron, OH, David Sporar, Brouse McDowell, Cleveland, OH, for Defendants.

ORDER

James G. Carr, Sr. U.S. District Judge This is an action by a cardiothoracic surgeon asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and 42 U.S.C. § 1981, as well as supplemental state-law claims.

Pending are partial summary judgment motions by plaintiff (Doc. 87) and by defendants, collectively (Doc. 73). Plaintiff seeks partial summary judgment on the issue whether defendants Mercy Health—St. Vincent Medical Center, LLC ("St. Vincent") and Mercy Health were his employers for purposes of his anti-discrimination claims. St. Vincent and Mercy Health seek partial summary judgment that they were not plaintiff's employer for those purposes.¹

For the reasons that follow, I grant plaintiff's motion in part and deny it in part, grant Mercy Health's motion, and deny St. Vincent's motion.

BACKGROUND

In 2012, St. Vincent and third party the Toledo Clinic both desired to engage the services of a cardiothoracic surgeon.

St. Vincent had suffered a defection of a large physician practice group and had only two cardiothoracic surgeons left on its staff. (Doc 64, pgID 1450-51); (Doc. 90-74, pgID 5405-06). It believed it needed a third such surgeon to rebuild its cardiothoracic surgery practice and to improve the two remaining surgeons’ quality of life by reducing their on-call hours. (Doc. 90-74, pgID 5405-06).

In addition, Mercy Health—St. Anne Medical Center ("St. Anne") desired to have the services of a cardiothoracic surgeon to build a cardiothoracic practice better to compete with the cardiology practices at ProMedica, Flower Hospital, and Toledo Hospital. (Doc 90-60, pgID 5270-71, 5274).

Toledo Clinic's staff included cardiologists but no cardiothoracic surgeons. (Doc. 73, pgID 4255); (Doc. 89, pgID 4779). Toledo Clinic believed that it was losing patients to competing providers because it did not have a cardiothoracic surgeon of its own to whom its doctors could refer patients. It found that, when its cardiologists referred patients for surgery at a hospital, the patients frequently did not return after the surgery for continuity of care. They would, instead, become patients of that hospital's cardiologists. (Doc. 63, pgID 1111-12).

On December 12, 2012, St. Vincent and Toledo Clinic entered into an arrangement meant to meet both parties’ needs. St. Vincent and Toledo Clinic signed a services agreement under which Toledo Clinic would hire a cardiothoracic surgeon and assign him to perform his work at St. Vincent ("the Services Agreement"). (Doc. 73-15, pgID 4555-67). St. Vincent agreed to provide the facilities, equipment, and personnel necessary for the Toledo Clinic surgeon to perform his work. (Id., pgID 4558).

Toledo Clinic based Dr. Holland's yearly salary on data regarding the compensation of other cardiothoracic surgeons in the market in an amount that St. Vincent approved. (Doc. 71, pgID 3942-43); (Doc. 68, pgID 3193-92). The parties agreed that St. Vincent would pay Toledo Clinic at a set yearly rate for five years to compensate it for the surgeon's salary and benefits and the related administrative expenses Toledo Clinic would incur as the surgeon's employer. (Doc. 73-15, pgId 4558, 4567).

Toledo Clinic and St. Vincent worked together to find a surgeon to implement their agreement. (Doc. 71, pgID 3806-07, 3814-15). St. Vincent took the lead because it had a medical staff recruiter, Thomas Leeds, and a recruitment budget. Toledo Clinic had neither either. (Id. ); (Doc. 90-60, pgID 5264).

St. Vincent's use of Leeds’ recruitment services was not unique to Dr. Holland's recruitment. He worked to assist any of the physician groups at St. Vincent in recruiting, whether the groups included only St. Vincent employees or they were independent practice groups. (Doc. 90-60, pgID 5264).

As part of the hiring process, Dr. Holland interviewed with representatives of both St. Vincent and Toledo Clinic. (Doc. 90-21, pgID 5056-57).

Dr. Holland reached an employment agreement with Toledo Clinic on January 2, 2013. (Doc. 90-63, pgID 5329-42). Per the Services Agreement, St. Vincent provided him with an office in its facility, access to surgical suites, the necessary surgical equipment, and staff to support him in the operating room. (Doc. 90-65, pgID 3185-86); (Doc. 71, pgID 3915-16). St. Vincent controlled Dr. Holland's day-to-day administrative and other non-surgical activities. (Doc. 90-58, pgID 5237).

Dr. Holland reported to Dr. Christopher Phillips, St. Vincent Chief of Cardiovascular Services. (Doc. 90-61, pgID 5283). He did not report to Dr. Ahmed Nahhas, the leader of Toledo Clinic's cardiologist practice. (Doc. 68, pgID 3185-86); (Doc. 70, pgID 3745-46). Dr. Holland was obligated to comply with St. Vincent's policies and to be subjected to its peer review process.² (Doc. 90-14, pgID 4890); (Doc. 90-1, pgID 4830-57); (Doc. 90-3, pgID 4887-4902).

St. Vincent kept and maintained Dr. Holland's patient records as its own property. (Doc. 71, pgID 3961-62); (Doc. 73-15, pgID 4557). St. Vincent billed for and collected all fees that Dr. Holland generated and retained those fees as its own revenue. (Doc 73-15, pgID 4558). St. Vincent included Dr. Holland in its advertising and promotional materials for its cardiothoracic surgery practice. (Doc. 30, pgID 5355). He wore Mercy scrubs and a Mercy identification badge. (Doc. 90-65, pgID 5355).

Dr. Holland did not have an office at the Toledo Clinic (Doc. 68, pgID 3185-86) and could not conduct surgery there because the Toledo Clinic lacked the necessary staff and facilities, (Doc. 68, pgID 3178-79). Instead, he had an office within the St. Vincent cardiothoracic practice offices. (Doc. 90-65, pgID 5354).

In addition to any patients that Toledo Clinic referred to him, Dr. Holland also received referrals of patients who came to St. Vincent without a reference to an individual cardiothoracic surgeon. See (Doc. 90-61, pgID 5304).

When St. Vincent's cardiologists needed a cardiothoracic surgeon consultation, they did not refer the patient to a specific surgeon, but instead contacted the cardiothoracic practice group. The practice group then assigned a surgeon to perform the consultation and, if necessary, surgery. (Doc. 90-73, pgID 5399-5401).

The St. Vincent cardiothoracic practice group also scheduled Dr. Holland's surgeries. (Doc. 71, pgID 3914-15); (Doc. 90-58, pgID 5236).

St. Vincent's medical director of the cardiothoracic surgery practice was Dr. Fayyaz Hashmi. Dr. Hashmi's practice manager for the cardiothoracic surgery group, Elizabeth Sheroian, assigned patients who lacked a referral to a specific surgeon among the three surgeons who comprised the practice group. See (Doc 72, pgID 135-36). Dr. Holland relied on patient assignments for consultations and surgeries that came to him through the St. Vincent cardiothoracic surgery group. (Doc. 90-61, pgID 5304).

Standard of Review

Summary judgment is appropriate under Fed. R. Civ. P. 56 where the opposing party fails to show the existence of an essential element for which that party bears the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The movant must initially show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the movant carries its burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 "requires the nonmoving party to go beyond the [unverified] pleadings" and submit admissible evidence supporting its position. Celotex, supra , 477 U.S. at 324, 106 S.Ct. 2548.

"Where, as here, parties have filed cross-motions for summary judgment, the Court grants or denies each motion for summary judgment on its own merit, applying the standards described in Fed. R. Civ. P. 56." Williams v. Ohio Dep't of Rehab. & Corrs. , 2018 WL 500167, *1 (S.D. Ohio).

Discussion

Notwithstanding the parties’ brief's extraordinarily prolix nature, the sole point at issue on these motions is whether either St. Vincent or Mercy Health, or both, were Dr. Holland's joint employers along with Toledo Clinic for purposes of the federal anti-discrimination statutes.

1. Joint Employer Standard

"A ‘joint employer’ relationship exists ‘where two or more employers exert significant control over the same employees-where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment....’ " Olynyk v. CRA Occupational Health, Inc. , No. 3:04CV7249, 2005 WL 1459547, at *6 (N.D. Ohio) (Carr, C.J.), (quoting Carrier Corp. v. NLRB , 768 F.2d 778, 781 (6th Cir. 1985), aff'd , 208 F. App'x 424 (6th Cir. 2006) ). " ‘[T]he "joint employer" concept recognizes that the business entities involved are in fact separate but that they share or co-determine those matters governing the essential terms and conditions of employment." Hollis v. Ply-Trim, Inc. , 2010 WL 11401633, at *7 (N.D. Ohio) (Limbert, M.J.) (quoting Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 n.4 (6th Cir. 1997) ).

"The ‘major factors’ in the ‘joint employer’ analysis are whether the defendant has the ability to: (1) ‘hire, fire, and discipline’; (2) ‘affect compensation and benefits’; and (3) ‘direct and supervise performance.’ " Johnson v. Baptist Mem'l Health Care Corp. , No. 218CV02509SHMCGC, 2019 WL 6917902, at *3 (W.D. Tenn.) (quoting Sanford v. Main St. Baptist Church Manor, Inc....