               Case: 13-15061       Date Filed: 04/23/2015      Page: 1 of 22


                                                                  [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 13-15061
                              ________________________

                          D.C. Docket No. 0:11-cv-61403-JIC



MOSHE ASHKENAZI,

                                                                   Plaintiff - Appellant,

versus

SOUTH BROWARD HOSPITAL DISTRICT
d.b.a. Memorial Healthcare System,

                                                                   Defendant - Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                      (April 23, 2015)

Before WILIAM PRYOR and JORDAN, Circuit Judges, and WALTER, * District
Judge.

         *
        Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
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PER CURIAM:

      Dr. Moshe Ashkenazi is a surgeon.         After his surgical privileges were

revoked, Dr. Ashkenazi sued the South Broward Hospital District, where he

provided on-call services, asserting violations of the Age Discrimination in

Employment Act, 29 U.S.C. § 621, et seq., and the Florida Civil Rights Act, Fla.

Stat. § 760.01, et seq. The district court granted summary judgment in favor of the

District, in part because it found that Dr. Ashkenazi was an independent contractor.

      Dr. Ashkenazi argues on appeal that the district court erred because (1) he

showed that there was a genuine issue of material fact as to whether he was an

employee of the District, and thus able to bring discrimination and retaliation

claims under the ADEA and FCRA; (2) Florida law permits independent

contractors to bring retaliation suits under the FCRA; and (3) the protections of the

ADEA and FCRA encompass his claims that the District interfered with his

employment relationships with third parties. After a thorough review of the record

and the parties’ briefs, and with the benefit of oral argument, we affirm the district

court’s grant of summary judgment.

                                          I

      Dr. Ashkenazi is a thoracic and vascular surgeon who was born in 1939. He

had surgical privileges with the South Broward Hospital District d/b/a Memorial

Healthcare System. Pursuant to renewable contracts, he worked on-call shifts in

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several emergency rooms within the District for several years. In 2010, he was

removed from the hospitals’ on-call schedules. In 2012, the District revoked his

major surgical privileges and reported the revocation to the Florida Department of

Health and Human Services and the Florida Board of Medical Examiners. Dr.

Ashkenazi alleged that the District took these actions against him due to his age

and his participation in protected activity.

      Dr. Ashkenazi sued the District, alleging age discrimination and retaliation

under the ADEA and FCRA, and asserting that the District’s actions “denied him

opportunities for and access to employment by private patients.” The District

moved for summary judgment, arguing in part that the discrimination and

retaliation claims failed because Dr. Ashkenazi was not a District employee. Even

if he were an employee, the District argued that the claims failed on the merits.

Finally, the District argued that the Eleventh Circuit does not recognize a claim for

interference with third-party employment under the ADEA or the FCRA.

      The district court granted summary judgment in favor of the District, ruling

that Dr. Ashkenazi was an independent contractor, and not an employee. It also

disagreed that Dr. Ashkenazi had shown genuine issues of material fact about the

nature of his employment relationship. Finally, the district court concluded that

although the Eleventh Circuit permits Title VII claims for interference with

employment relationships with third parties, Dr. Ashkenazi had not sufficiently


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shown that he was “deprived of specific employment opportunities with third

parties.” Dr. Ashkenazi now appeals.

                                         II

      “We review de novo the district court’s order granting summary judgment.”

Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001). All facts

and reasonable inferences are viewed in the light most favorable to the non-moving

party, here Dr. Ashkenazi. See id. Summary judgment is appropriate when no

genuine issue of material fact exists. See id. But a fact is material “only when the

dispute over it has the potential to change the outcome of the lawsuit under the

governing law” if it is found in the non-movant’s favor. Zaben v. Air Prods. &

Chems., Inc., 129 F.3d 1453, 1455 (11th Cir. 1997) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). And a dispute is genuine only “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248.

                                        III

      The first issue on appeal is not the merits of the age discrimination and

retaliation claims, but rather whether Dr. Ashkenazi can bring them under the

ADEA and FCRA given the nature of his working relationship with the District.

      “Federal case law interpreting . . . the ADEA applies to cases arising under

the FCRA.” City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th DCA


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2008). Thus, Dr. Ashkenazi’s FCRA claims—or at least his discrimination claims

under the FCRA—rise or fall with the ADEA claims.

      The ADEA, in relevant part, prohibits employers from “fail[ing] or

refus[ing] to hire or to discharge any individual or otherwise discriminate against

any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). The

ADEA also prohibits employers from “discriminat[ing] against any of [its]

employees” because the employee “opposed any practice made unlawful by this

section, or because” the employee “made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or litigation under this

chapter.” Id. § 623(d).

      To seek relief under the ADEA, a plaintiff must be an employee. See

Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495 n.13 (11th Cir. 1993) (“The

ADEA does not provide relief for discrimination against an independent

contractor.”). The ADEA does not provide guidance as to the scope of the term

“employee,” beyond defining an “employee” as “ ‘an individual employed by any

employer.’ ” Id. at 1495 (quoting 29 U.S.C. § 630(f)). As explained below, three

different tests are used to determine whether a person is an independent contractor

or an employee under federal law.




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      First, there is the common-law agency test, which focuses on a “ ‘hiring

party’s right to control the manner and means by which the product is

accomplished.’ ” Id. (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S.

730, 751 (1989)). In addition to looking at control over the manner and means of

the work, courts using the common-law agency test consider a number of other

factors:

      “the skill required; the source of the instrumentalities and tools; the
      location of the work; the duration of the relationship between the
      parties; whether the hiring party has the right to assign additional
      projects to the hired party; the extent of the hired party's discretion
      over when and how long to work; the method of payment; the hired
      party's role in hiring and paying assistants; whether the work is part of
      the regular business of the hiring party; whether the hiring party is in
      business; the provision of employee benefits; and the tax treatment of
      the hired party.”

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992) (quoting Reid,

490 U.S. at 751-52, and describing, in an ERISA case, the common-law agency

test as containing the above Reid factors). See also Clackamas Gastroenterology

Assocs., P.C. v. Wells, 538 U.S. 440, 444-45 (2003) (applying the common-law

agency test and Reid factors in an ADA case involving physician-shareholders of a

professional corporation).

      Second, we have used, in FLSA cases, an “economic realities” test. See

Donovan v. New Floridian Hotel, Inc., 676 F.2d 468, 470-71 (11th Cir. 1982).




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This test analyzes the extent to which the individual is dependent on the employer.

See Daughtrey, 3 F.3d at 1495.

      And third, “in the context of the federal employment discrimination

statutes,” we have used a hybrid approach. Id. Under the hybrid approach, we

look at the common-law agency test, “tempered by a consideration of the

‘economic realities’ of the hired party’s dependence on the hiring party.” Id. See

also Cobb v. Sun Papers, Inc., 673 F.2d 337, 340-41 (11th Cir. 1982).

      We have not expressly decided which test should be applied in ADEA cases.

See Garcia, 104 F.3d at 1266-67 (concluding in an ADEA case that, under either

the common-law agency test or the hybrid approach, the plaintiff had shown

sufficient disputed facts about the amount of control the defendant exercised over

his work to survive a directed verdict motion). See also Daughtrey, 3 F.3d at

1495-96 (concluding the same in an ADEA case and reversing in part the district

court’s summary-judgment order). And we do not need to do so here because Dr.

Ashkenazi has failed to create a genuine issue of material fact under either the

common-law agency test or the hybrid approach.

      As the Fourth Circuit recognized in a Title VII case, doctors and hospitals

have “a competition for control that is inherent in the duty of each to discharge

properly its professional responsibility”: a “doctor must have direct control to

make decisions for providing medical care” and “hospital[s] must assert a degree


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of conflicting control over every doctor’s work.” Cilecek v. Inova Health Sys.

Servs., 115 F.3d 256, 260 (4th Cir. 1997). See also Wojewski v. Rapid City Reg.

Hosp., Inc., 450 F.3d 338, 344 (8th Cir. 2006) (holding that, in an ADA and

Rehabilitation Act case, an agreement’s “heightened level of personal control”

over a doctor was “akin to the normal tensions discussed in Cilecek” and merely

“reasonable steps [by the hospital] to ensure patient safety and avoid professional

liability while not attempting to control the manner in which [the doctor]

performed operations”). The Fourth Circuit has explained that, in the context of

medical professions, it is “[m]ore enlightening” to analyze “the control involved in

deciding when a doctor performs his services, the number of hours he performs

them, and the administrative details incident to his professional services.” Cilecek,

115 F.3d at 260.

      Based in part on a doctor’s ability to control the manner in which the doctor

provides his or her services, many circuits evaluating employment discrimination

claims by doctors against hospitals have found that the doctors were independent

contractors and not employees. See, e.g., Wojewski, 450 F.3d at 344 (ADA &

Rehabilitation Act); Shah v. Deaconess Hosp., 355 F.3d 496, 500 (6th Cir. 2004)

(ADEA & Title VII); Cilecek, 115 F.3d at 262-63 (Title VII); Alexander v. Rush N.

Shore Med. Ctr., 101 F.3d 487, 493 (7th Cir. 1996) (Title VII); Diggs v. Harris

Hosp.-Methodist, Inc., 847 F.2d 270, 272-73 (5th Cir. 1988) (Title VII). But, as


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the Supreme Court counsels, no one factor is determinative. See Reid, 490 U.S. at

752. A doctor’s exercise of professional judgment about a patient’s medical care is

not a dispositive factor in this analysis; otherwise, all physicians would be

“carve[d] out, . . . as a category, from the protections of the antidiscrimination

statutes.” Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 228-29 (2d Cir.

2008). Indeed, in Garcia we previously recognized that a doctor who provided

emergency room services for a Florida hospital pursuant to a contract could

potentially be an employee. We held that a factual dispute existed because the

doctor presented, in part, evidence that “the medical directors oversaw the medical

care he provided.” Garcia, 104 F.3d at 1267.

      Thus, the important takeaway from existing precedent is that each case is

factually specific and context dependent on the precise nature of the working

relationship between the parties. There may be times where a factual dispute about

the parties’ working relationship requires a jury to determine whether the doctor is

an employee or an independent contractor. At other times, the material facts may

be so clear and undisputed that a reasonable jury could come to only one

conclusion. This case is an example of the latter situation.

      The relevant facts are these. Dr. Ashkenazi owned a corporation through

which he operated his private practice. Dr. Ashkenazi determined the salary he

received from the corporation, and the corporation annually issued him a Form W-


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2 for income tax purposes. The corporation hired, fired, and paid its employees.

Dr. Ashkenazi saw his private patients at offices maintained by the corporation,

and his patients and their insurance companies paid the corporation for his

services.

      Dr. Ashkenazi did not plead and has not argued on appeal that he was an

employee of the District based on the services he provided to his private patients

through his private corporation.        Instead, Dr. Ashkenazi argues that he was an

employee through his provision of on-call services at several hospital emergency

rooms within the District. The services he provided during the on-call ER shifts

comprised approximately 10% of his practice.

      Beginning in 2006, Dr. Ashkenazi entered into written contracts with the

District governing his performance.        The contracts stated: “It is expressly

acknowledged by the parties hereto that [Dr. Ashkenazi] is an ‘independent

contractor,’ and nothing in this Agreement is intended nor shall be construed to

create an employer/employee relationship or partnership or joint venture

arrangement.” Although not controlling, the contract affirmatively states that the

parties intended to create an employer-independent contractor relationship, not one

of employer-employee. And that is a relevant factor. See Daughtrey, 3 F.3d at

1492 (finding the parties’ intent probative, but not decisive).




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      The parties also treated the method of payment, tax treatment, and the

provision of benefits akin to an employer-independent contractor relationship.

Under the contracts, the District paid Dr. Ashkenazi a flat rate—not an hourly

rate—for each 24-hour on-call shift that he was available. The District did not

provide Dr. Ashkenazi with any other financial benefits and issued him a Form

1099 for income tax purposes. When Dr. Ashkenazi saw ER patients on-call, his

corporation—not the District—billed the patients or their insurance companies for

his services. The District did not bill for services that Dr. Ashkenazi performed

while providing on-call services.

      The District did provide Dr. Ashkenazi with hospital facilities, support

personnel, and equipment when he performed surgeries, and it billed the patients

directly for the hospital staff, services, and equipment it provided.        But the

District’s provisions of its facilities, equipment, and personnel are “inherent in the

provision of emergency medical services” whether the doctor “is an employee of

the hospital or simply has privileges [to use] the hospital.” Cilecek, 115 F.3d at

262. Dr. Ashkenazi admitted that his surgical practice is the type that must be

performed in a hospital setting, regardless of his actual working relationship with

the District. Thus, the location of the work and the source of the instrumentalities

and tools, in this case, do not shed a lot of light on the nature of the parties’

working relationship.


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      It is true, as Dr. Ashkenazi points out, that the District’s chief of vascular

services—a non-employee physician—prepared the on-call ER schedules. But Dr.

Ashkenazi had flexibility in deciding when and where he would work.               For

example, during any given 24-hour on-call shift, the District did not require Dr.

Ashkenazi to stay on a hospital’s premises. He could meet with patients at his

private practice or otherwise attend to his private business unless he was actually at

a hospital on a call. While on-call for one hospital, Dr. Ashkenazi could perform

surgeries on his private patients—even at other hospitals—or do other work at his

private office. And Dr. Ashkenazi was able to coordinate with other surgeons to

cover for him if he was unable to come to a hospital during a scheduled shift.

Further, the District could not assign additional patients to Dr. Ashkenazi beyond

those whom he treated during his on-call shifts. Thus, the District had no right to

assign additional work to Dr. Ashkenazi, and he could control when and how long

he worked on-call.

      Dr. Ashkenazi does not dispute these facts, but rather argues that other

evidence in the record shows that he was an employee of the District. Specifically,

he argues that the District counseled him to forgo limb salvage surgery in favor of

amputation on elderly patients; instructed him to get second opinions on complex

surgeries; subjected some of his past surgeries to a more strenuous review than the

peer-review process; insisted that other doctors attend his surgeries as proctors;


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stopped scheduling him for on-call emergency surgeries because he could not

guarantee that a proctor would be present; instructed him to use non-physician

health practitioners during surgery; required him to keep logs and other reports of

the services that he provided; instructed him to attend certain continuing education

events; and ultimately revoked his major surgical privileges. We disagree that this

evidence creates a genuine issue of material fact.

      First, the record-keeping tasks about which Dr. Ashkenazi complains are

administrative tasks required by the District that in no way interfered with or

controlled the manner or means by which he performed his job. These same

requirements were demanded of all doctors who had privileges at the District, and

as such—similar to the factors about the location of the work and the provision of

tools and instrumentalities—cannot be considered requirements unique to only

District employees.

      Second, the instances where Dr. Ashkenazi says that the District controlled

the provision of his medical services did not arise until 2008—two years after he

began working as an on-call vascular surgeon for the District—and resulted from

the District’s additional oversight following a documented issue with his level of

medical care. There is no record evidence that the District exerted any similar

“control” over Dr. Ashkenazi prior to its efforts to closely monitor his cases to

protect its patients’ well-being and itself from liability.


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      In fact-specific and context-dependent cases such as this one, we must

examine the parties’ working relationship in its basic form. Taking the record facts

in the light most favorable to Dr. Ashkenazi, the District did not “transform” the

working relationship into one of employer-employee by requiring him to perform

surgeries only with proctors, attend certain national conferences covering surgical

techniques, and stop performing limb salvage surgeries with high risks of failure

on elderly patients. Rather, these efforts to “control” Dr. Ashkenazi were the

hospital district’s “reasonable steps . . . to ensure patient safety and avoid

professional liability.” See Wojewski, 450 F.3d at 344. The record evidence

indicates that the proctors were present only if something went wrong, or if Dr.

Ashkenazi wanted a second opinion. They did not speak with patients or instruct

Dr. Ashkenazi as to the medical decisions he should make. Further, the record

shows that Dr. Ashkenazi scheduled his own proctors. Dr. Ashkenazi was not

forced to use certain medical professionals as proctors who attempted to

“reeducate[e]” him or mentor him on how to perform the surgeries differently than

he ordinarily would. Cf. Salamon, 514 F.3d at 224-25, 229-31 (reversing district

court’s summary-judgment order in favor of hospital which had created a

“reeducation” program designed to change a doctor’s medical decisions, because

the program was not motivated by statutory requirements, but instead an effort to




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maximize the hospital’s revenue and punish the doctor for complaining about

harassment).

      Finally, Dr. Ashkenazi argues that our prior holding in Garcia compels us to

reverse the district court’s grant of summary judgment in favor of the District and

remand his case for trial. In Garcia, 104 F.3d at 1258, we reversed a district

court’s ruling that a doctor was an independent contractor and not an employee.

Although the doctor in Garcia also had a contract with a hospital that specified the

parties’ working relationship as that of employer-independent contractor, Garcia

does not mandate reversal here.

      Garcia was on appeal from the district court’s dismissal for lack of subject-

matter jurisdiction. The district court had held that the defendant was not an

“employer” because it counted emergency room doctors as “independent

contractors,” and not as employees. Our task was to determine whether a judge, as

opposed to a jury, should determine on the record before us whether the defendant

was an employer under the ADEA. We held that whether or not a defendant is an

employer is an element of an ADEA claim, and thus, it should be resolved by the

jury. Garcia, 104 F.3d at 1258.

      Notably, the judge in Garcia who erroneously dismissed the case had

previously denied summary judgment, concluding that questions of fact existed as

to whether Dr. Garcia was an employee or an independent contractor. Id. at 1259.


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Although Garcia does not give us an exhaustive description of the evidence, some

of the evidence indicated that the “medical directors oversaw the medical care [Dr.

Garcia] provided, scheduled his shifts and paid him on an hourly basis.” Id. at

1267. Here, there is no disputed issue of material fact about the level of control the

District had over Dr. Ashkenazi. On this record, we affirm the district court’s

grant of summary judgment.

                                          IV

      Dr. Ashkenazi also argues that, even if he is an independent contractor as a

matter of law, the FCRA permits retaliation claims by independent contractors who

complain about discrimination. Florida courts have held that FCRA retaliation

claims generally follow federal case law, but the plain language of the FCRA and

ADEA retaliation provisions differ. Compare Fla. Stat. § 760.10(7) (stating that it

is unlawful to retaliate against “any person”), and id. § 760.02(6) (defining a

“person” under the FCRA as including “individual[s]”), with 29 U.S.C. § 623(d)

(specifically protecting, as applicable in this context, only “employees or

applicants for employment”). See also Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 174 (2009) (“[W]e must be careful not to apply rules applicable under one

statute to a different statute without careful and critical examination.” (internal

quotation marks and citation omitted)).




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      We are not aware of any Florida appellate case that expressly construes the

FCRA’s “any person” language in age-based retaliation claims as pertaining to

only employees, and not independent contractors. And we have never adopted a

categorical rule that the scope of the entire FCRA is identical to the ADEA, such

that a person must be an employee to proceed in an age-based FCRA retaliation

suit. We decline to pass on this question today.

      Here, Dr. Ashkenazi’s state law retaliation claim against the District is

barred not by the FCRA’s language, but rather by another Florida statute which

grants immunity to its hospital districts for suits arising out of their peer review

and credentialing processes:

      There shall be no monetary liability on the part of, and no cause of
      action for injunctive relief or damages shall arise against, any licensed
      facility, its governing board or governing board members, medical
      staff, or disciplinary board or against its agents, investigators,
      witnesses, or employees, or against any other person, for any action
      arising out of or related to carrying out the provisions of this section,
      absent intentional fraud.

Fla. Stat. § 395.0191(7). See Lawnwood Med. Ctr., Inc. v. Desai, 54 So. 3d 1027,

1030 (Fla. 4th DCA 2011) (“Absent specific allegations of intentional fraud, [the

statute’s] immunity protects the hospital.”). The parties do not dispute that Dr.

Ashkenazi’s claims arose out of the processes covered by § 395.0191. As a result,

Dr. Ashkenazi’s retaliation claim is barred.




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      Dr. Ashkenasi argues that § 395.0191 is modeled after a federal statute that

exempts similar professional-review actions from immunity under a number of

federal civil rights statutes. See 42 U.S.C. § 11111. But we must apply the plain

language of § 395.0191, as written and enacted by the Florida Legislature and as

interpreted by the Florida courts, and not the language of a separate federal statute

that was enacted by an entirely different legislative body.

      Dr. Ashkenazi also contends that he sufficiently pled “intentional fraud”

because he alleged that two doctors used the hospital credentialing process to get

rid of him (in essence articulating a “cat’s paw” theory of liability). The problem

is that Dr. Ashkenazi’s second amended complaint fails to allege that the District

made a misrepresentation about a material fact that it knew to be false. Thus, Dr.

Ashkenazi did not sufficiently plead intentional fraud, and his FCRA age-based

retaliation suit is barred by § 395.0191(7).

                                          V

      Dr. Ashkenazi next argues that the district court erred in holding that he had

not sufficiently shown that the District interfered with his employment

opportunities by third parties (i.e., a potential business arrangement with Dr.

Feldbaum, and employment by his private patients). The district court granted

summary judgment on this claim because it concluded that Dr. Ashkenazi showed

he had only preliminary discussions with Dr. Feldbaum about “a possible business


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arrangement,” and there was no “existing, or even reasonably certain, employment

relationship between [Dr.] Ashkenazi and another party.” The district court also

ruled that Dr. Ashkenazi could not proceed with this claim with regard to his

private patients because “a patient is not a doctor’s employer.” Though we analyze

this claim somewhat differently than the district court, we agree with its ultimate

conclusion that summary judgment was proper.

      We have never decided whether a plaintiff can bring a legally-cognizable

claim under the ADEA for interference with employment opportunities with third

parties. We have, however, recognized that such a claim is possible under Title

VII. See Pardazi v. Cullman Med. Ctr., 838 F.2d 1155, 1156 (11th Cir. 1988)

(reversing the district court’s grant of summary judgment and holding that Title

VII protections “extend to a claim that a defendant has interfered with an

individual’s employment relationship with a third party”). We need not decide this

issue today, because even if such a claim were legally cognizable under the ADEA

or the FCRA, Dr. Ashkenazi’s claim fails on the merits.

      First, Dr. Ashkenazi cannot prevail on his claim that the District interfered

with an employment relationship with Dr. Feldbaum. For one thing, his second

amended complaint is silent about any employment relationship he had or might

have had with Dr. Feldbaum. Instead, the complaint alleges only that the District

denied Dr. Ashkenazi the opportunity for employment by “private patients.”


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Moreover, the record does not show that Dr. Ashkenazi raised this theory prior to

his summary-judgment response. See Lightfoot v. Henry Cnty. Sch. Dist., 771 F.3d

764, 779 (11th Cir. 2014) (holding that a “district court did not err in declining to

consider [a] new factual basis [for an existing claim] when it was raised in [the

plaintiff’s] opposition to summary judgment”).

      Even if we assume that Dr. Ashkenazi properly raised the interference claim

concerning Dr. Feldbaum, the claim still fails.          Pardazi, our Title VII case

recognizing the viability of interference claims, involved a hospital’s denial of staff

privileges that allegedly interfered with a doctor’s employment contract with an

Alabama corporation. Pardazi, 838 F.2d at 1156. Here, Dr. Ashkenazi had no

employment contract with Dr. Feldbaum, and he offered no evidence beyond

speculation about entering a possible employment relationship with Dr. Feldbaum.

Because Dr. Ashkenazi cannot show that the District interfered with an actual,

specific employment relationship, the district court correctly granted summary

judgment on this claim.

      Second, Dr. Ashkenazi cannot prevail on his claim with regard to his private

patients. We have previously extended Title VII protection to interference claims

based on employment relationships with third parties. See id. But we expressly

declined to decide whether a plaintiff could bring an interference claim despite the

absence of any employer-employee relationship at all.           See id. at 1156 n.1.


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Although some courts have recognized such a claim, see id. (listing cases), other

courts have required at least “some connection with an employment relationship

for Title VII protections to apply,” Mitchell v. Frank R. Howard Mem. Hosp., 853

F.2d 762, 767 (9th Cir. 1988).

      In Title VII cases where a doctor has claimed that patients were his

employers, at least five circuit courts have rejected the claims because patients do

not control the manner and means by which a doctor performs his services. See

Salamon, 514 F.3d at 233; Bender v. Suburban Hosp., Inc., 159 F.3d 186, 190 (4th

Cir. 1998); Alexander, 101 F.3d at 493 n. 2; Mitchell, 853 F.2d at 767; Diggs, 847

F.2d at 274. Further, even if an ADEA interference claim did not require evidence

of an employer-employee relationship, the claim nonetheless fails. Dr. Ashkenazi

specifically alleged that he was “denied . . . opportunities for and access to

employment by private patients,” and his argument depends upon us equating the

hospitals’ emergency room intake procedure to an employment agency and the

patients referred by the hospital to employers. Without deciding whether we

would recognize interference claims under the ADEA, we hold that in the

traditional doctor-patient relationship, patients are not doctors’ employers under

federal discrimination statutes like the ADEA. Thus, Dr. Ashkenazi’s claim fails.




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             Case: 13-15061   Date Filed: 04/23/2015   Page: 22 of 22


                                       VI

       We affirm the district court’s grant of summary judgment in favor of the

District.

       AFFIRMED.




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