           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    Shah v. Deaconess Hospital                   No. 02-3033
        ELECTRONIC CITATION: 2004 FED App. 0017P (6th Cir.)
                    File Name: 04a0017p.06                                 Peggy M. Barker, KOHNEN & PATTON, Cincinnati, Ohio,
                                                                           for Appellee. ON BRIEF: Mark Joseph Byrne, JACOBS,
                                                                           KLEINMAN, SEIBEL & McNALLY, Cincinnati, Ohio, for
UNITED STATES COURT OF APPEALS                                             Appellant. Peggy M. Barker, Anthony J. Caruso, Joseph L.
                                                                           Dilts, KOHNEN & PATTON, Cincinnati, Ohio, for Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                                          _________________

 BHANUKUM AR C. SHAH ,            X                                                                OPINION
         Plaintiff-Appellant,      -                                                           _________________
                                   -
                                   -  No. 02-3033                            RYAN, Circuit Judge. Dr. Bhanukumar C. Shah is a
           v.                      -                                       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
 DEACON ESS HOSPITAL,              -
          Defendant-Appellee. -                                            of his patients died following surgery. Shah filed suit in
                                                                           federal court, claiming that Deaconess discriminated against
                                  N                                        him based on his age and East Indian national origin. The
      Appeal from the United States District Court                         district court granted summary judgment to Deaconess
     for the Southern District of Ohio at Cincinnati.                      because Shah failed to establish a prima facie case of
    No. 00-00178—S. Arthur Spiegel, District Judge.                        discrimination and failed to create a genuine factual issue
                                                                           regarding his claim that Deaconess’ stated reason for the
                     Argued: August 5, 2003                                action was pretextual. Shah appeals the grant of summary
                                                                           judgment.
             Decided and Filed: January 14, 2004
                                                                             For reasons we shall explain, we decline to address the
  Before: BOGGS, Chief Judge; RYAN, Circuit Judge;                         merits of Shah’s claim, but we AFFIRM nonetheless, on the
              ROSEN, District Judge.*                                      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.
                            COUNSEL
                                                                                        I. FACTUAL BACKGROUND
ARGUED: Mark Joseph Byrne, JACOBS, KLEINMAN,
SEIBEL & McNALLY, Cincinnati, Ohio, for Appellant.                           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
    *
     The Honorable Gerald E. Rosen, United States District Judge for the   swelling. Initially, the surgery appeared to go well, but the
Eastern District of Michigan, sitting by designation.

                                   1
No. 02-3033                 Shah v. Deaconess Hospital        3    4     Shah v. Deaconess Hospital                   No. 02-3033

next day the patient complained of calf tenderness and               Shah sued Deaconess in federal district court in March
soreness in the incision area. On July 30, she was seen by one     2000. He asserted three claims: (1) age discrimination in
Dr. Sarkar for treatment of thrombophlebitis. Around               violation of the Age Discrimination in Employment Act
midnight the following day, the hospital’s house physician         (ADEA), 29 U.S.C. §§ 621-634; (2) discrimination based on
called Shah to report swelling in the patient’s neck. Shah         national origin in violation of Title VII of the Civil Rights Act
determined that no immediate action was necessary and that         of 1964, 42 U.S.C. §§ 2000e-2000e-17; and
there was no need that he travel to the hospital. He instructed    (3) discrimination in violation of Ohio Rev. Code Ann.
the house physician that if the swelling began to interfere with   § 4112.02(A). Deaconess filed a motion for summary
the patient’s breathing, he should cease administering Heparin     judgment, which the district court granted on the ground that
and drain the blood from her neck. At 2:00 a.m., the house         Shah failed to establish a prima facie case because he did not
physician called Shah a second time to report that the patient     show “that he was qualified to perform head and neck
was having trouble breathing, although her neck swelling had       surgeries.” The court also concluded that Shah failed to rebut
not increased. Shah instructed the house physician that either     Deaconess’ legitimate, non-discriminatory explanation for its
drainage of the hematoma or endotracheal intubation would          action by showing it was pretextual.
be necessary if the swelling increased. Around 3:15 a.m., the
patient went into cardiac arrest. The house physician called                     II. STANDARD OF REVIEW
a third time, prompting Dr. Shah to leave for the hospital. He
arrived about thirty minutes later to find the patient intubated     “We review a district court’s grant of summary judgment
and on a respirator. He secured an operating room team and         de novo, using the same standard under Rule 56(c) used by
sought consent from the patient’s family to perform                the district court.” Policastro v. Northwest Airlines, Inc., 297
emergency surgery. The patient’s family took several hours         F.3d 535, 538 (6th Cir. 2002). Summary judgment is
to give consent; Shah believed that he could afford to wait        appropriate “if the pleadings, depositions, answers to
since the patient already was intubated. Eventually, Shah          interrogatories, and admissions on file, together with the
obtained consent and performed the neck drain surgery. Over        affidavits, if any, show that there is no genuine issue as to any
the next two weeks, the patient’s condition deteriorated, and      material fact and that the moving party is entitled to a
she died.                                                          judgment as a matter of law.” Fed. R. Civ. P. 56(c). “We
                                                                   view the evidence, all facts, and any inferences that may be
  Pursuant to its policy of automatically reviewing all cases      drawn from the facts in the light most favorable to the
involving patient death, Deaconess initiated a peer review of      nonmoving party.”          Policastro, 297 F.3d at 538.
Shah’s conduct. The review proceeded through numerous              Additionally, “because a grant of summary judgment is
stages, beginning in October 1998, with a letter to Shah from      reviewed de novo, [we] may affirm the judgment of the
the Clinical Review Committee, and ending in June 1999,            district court on any grounds supported by the record, even if
when the hospital’s Board of Trustees voted unanimously to         they are different from those relied upon by the district court.”
uphold an earlier finding that “a serious misjudgement             Kennedy v. Superior Printing Co., 215 F.3d 650, 655 (6th Cir.
occurred in the management” of the deceased patient. The           2000).
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.
No. 02-3033                 Shah v. Deaconess Hospital        5    6    Shah v. Deaconess Hospital                 No. 02-3033

                      III. ANALYSIS                                (6th Cir. 1996) (ADEA); Christopher v. Stouder Mem’l
                                                                   Hosp., 936 F.2d 870, 877 (6th Cir. 1991) (Title VII). Cf.
   The first issue we must address—remarkably, one not             Falls v. Sporting News Publ’g Co., 834 F.2d 611, 613 (6th
raised by either party—is whether Shah’s relationship with         Cir. 1987) (ADEA and Title VII). We have not applied this
Deaconess, employee or independent contractor, qualifies him       rule, in a published decision, in the context of a physician
for the statutory relief he seeks. We directed counsel to          denied hospital privileges. In an unpublished decision,
address the issue at oral argument and they did so. We             Chadha v. Hardin Mem’l Hosp., No. 99-3166, 2000 WL
conclude that: (1) the record discloses that Shah did not make     32023, at **2 (6th Cir. Jan. 6, 2000) (unpublished
a prima facie case showing that he was an employee at              disposition), we held that the ADA did not apply to a
Deaconess; (2) that, as such, the employment discrimination        physician who was an independent contractor.
statutes upon which Shah relies do not apply; and
(3) Deaconess is entitled to judgment as a matter of law.             Three of our sister circuits have explicitly held that a
                                                                   physician denied hospital privileges is not protected by the
                              A.                                   federal employment discrimination statutes if he or she is an
                                                                   independent contractor. See, e.g., Cilecek v. Inova Health
  Both Title VII, 42 U.S.C. § 2000e-5(f)(1), and the ADEA,         Sys. Servs., 115 F.3d 256, 261-63 (4th Cir. 1997); Alexander
29 U.S.C. § 626(c), empower “person[s] claiming to be              v. Rush North Shore Med. Ctr., 101 F.3d 487, 493-94 (7th
aggrieved” to bring civil actions to enforce the statutes’         Cir. 1996); Diggs v. Harris Hosp.-Methodist, Inc., 847 F.2d
substantive prohibitions against unlawful employment               270, 272-73 (5th Cir. 1988). For example, in Alexander, 101
practices. Under Title VII, it is “an unlawful employment          F.3d 487, the Seventh Circuit held that a physician whose
practice . . . to discriminate against any individual with         hospital privileges had been revoked was not an employee
respect to his compensation, terms, conditions, or privileges      within the meaning of Title VII because the hospital did not
of employment, because of such individual’s race, color,           have “‘the right to control’” the physician. Id. at 493-94
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).        (citation omitted).
The ADEA employs identical language with respect to age
discrimination. 29 U.S.C. § 623(a). Ohio uses similar                Like the Seventh Circuit, we apply the common law agency
language in its anti-discrimination law, Ohio Rev. Code Ann.       test to determine whether a hired party is an independent
§ 4112.02(A), and Ohio courts analyze claims under that            contractor or an employee. Johnson, 151 F.3d at 568 (citing
statute by reference to federal case law interpreting Title VII.   Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322
Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio         (1992)). Cf. Clackamas Gastroenterology Assocs., P.C. v.
Civil Rights Comm’n, 421 N.E.2d 128, 131 (Ohio 1981); see          Wells, 123 S. Ct. 1673, 1677-81 (2003). It is true that some
also Peters v. Lincoln Elec. Co., 285 F.3d 456, 469 (6th Cir.      of our cases have applied an “economic realities” test, which
2002); Cline v. Catholic Diocese, 206 F.3d 651, 668 (6th Cir.      looks to the totality of the circumstances involved in a work
2000).                                                             relationship, including “whether the putative employee is
                                                                   economically dependent upon the principal or is instead in
   As a general rule, the federal employment discrimination        business for himself.” Lilley v. BTM Corp., 958 F.2d 746,
statutes protect employees, but not independent contractors.       750 (6th Cir. 1992); see also Armbruster v. Quinn, 711 F.2d
See Johnson v. City of Saline, 151 F.3d 564, 567-69 (6th Cir.      1332, 1340 (6th Cir. 1983). But, in more recent cases, we
1998) (ADA); Simpson v. Ernst & Young, 100 F.3d 436, 443           have made it clear that we prefer the common law agency
No. 02-3033                Shah v. Deaconess Hospital         7   8    Shah v. Deaconess Hospital                   No. 02-3033

analysis. The substantive differences between the two tests         There is no evidence that Deaconess has a right to control
are minimal. Johnson, 151 F.3d at 568; Simpson, 100 F.3d at       the manner and means of Shah’s performance. Although the
442-43.                                                           hospital requires all physicians having surgical privileges to
                                                                  abide by the applicable standard of care, this requirement
  As explained in Simpson, the common law analysis requires       applies regardless of employment status and is enforced only
the consideration of numerous factors, including:                 after-the-fact, through the peer review process. Nothing in
                                                                  the record suggests that Deaconess has the right to interfere
  the hiring party’s right to control the manner and means        with Shah’s medical discretion or otherwise control the
  by which the product is accomplished; the skill required        manner and means of his performance as a surgeon. By
  by the hired party; the duration of the relationship            Shah’s own admission, he treats his own patients and
  between the parties; the hiring party’s right to assign         contracts freely with other hospitals. There is no evidence
  additional projects; the hired party’s discretion over          that Shah must accept patients referred to him by the hospital,
  when and how to work; the method of payment; the hired          and, as far as the record discloses, Deaconess does not dictate
  party’s role in hiring and paying assistants; whether the       Shah’s hours or hire and pay Shah’s assistants. As Shah
  work is part of the hiring party’s regular business; the        testified at his deposition, he receives no payment from
  hired party’s employee benefits; and tax treatment of the       Deaconess and is not treated as an employee for tax purposes.
  hired party’s compensation.                                     Thus, there is no proof of the existence of an employment
                                                                  relationship between Shah and Deaconess.
100 F.3d at 443 (citing Darden, 503 U.S. at 323-24).
                                                                     We note in passing that Shah’s relationship with Deaconess
  Viewed in a light most favorable to Shah, the record in this    is nothing like the situation we addressed in Christopher, 936
case fails to disclose any dispute regarding any of these         F.2d 870, a Title VII retaliation case involving a scrub nurse
factors.                                                          whose hospital nursing privileges were revoked. In
                                                                  Christopher, we explained that the plaintiff scrub nurse was
  We can begin with Shah’s deposition statement that he is        neither an employee nor an independent contractor of the
“not [an] employee technically” of Deaconess:                     defendant hospital. Id. at 877. We held nonetheless that she
  I’m not employee of Deaconess Hospital but Deaconess            could pursue her Title VII claim because the hospital affected
  Hospital controls my privileges, my practice, and I have        her employment opportunities with third parties, namely,
  a contractual arrangement which gives me privilege to           physicians who employ scrub nurses if they have hospital
  bring my patients there. I have a, I have a contractual         privileges. Id. at 875. Although one might question whether
  arrangement with my patients to treat at Deaconess              the reasoning in Christopher can be reconciled with our more
  Hospital. So even though I’m not employee technically,          recent cases employing the common law agency test, we need
  I’m, I’m just treated like employee there except I don’t        not address the issue because nothing in the present record
  get paid from Deaconess.                                        suggests that a partial loss of surgical privileges at Deaconess
                                                                  directly impairs Shah’s employment with third parties. We
Deaconess does not pay Shah for his services or provide him       therefore conclude that Shah, in his relationship with
with a W-2 form, and Shah performs about forty-five percent       Deaconess Hospital, is not protected by the ADEA, Title VII,
of his surgeries at other hospitals.                              or Ohio. Rev. Code Ann. § 4112.02(A).
No. 02-3033              Shah v. Deaconess Hospital      9

                  IV. CONCLUSION
  For the foregoing reasons, we AFFIRM the district court’s
judgment for Deaconess.
