Opinion
Case No. 3:18-cv-490-JGC
10-20-2020
Fred W. HOLLAND, M.D., Plaintiff v. MERCY HEALTH, et al., Defendants
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.
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.
Mercy Health titled its motion as seeking summary judgment on all five counts of plaintiff's complaint. (Doc. 73, pgId 4252). However, I directed the parties to limit their motions to the specific issue of whether the defendants were plaintiff's employers for employment discrimination purposes. Defendants limited the substance of their briefs to that issue. I therefore will not address other issues in this order.
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. (Doc. 90-14, pgID 4890); (Doc. 90-1, pgID 4830-57); (Doc. 90-3, pgID 4887-4902).
St. Vincent asserts that I should not consider its peer review, administrative, and record-keeping procedures with regard to its degree of control of Dr. Holland's day-to-day activities. It makes this assertion because it allowed its medical staff to conduct peer review and establish certain hospital procedures.
St. Vincent's has failed, however, to identify any precedent to support its argument that, merely because an employer delegates some aspects of employee supervision to its senior employees, such as St. Vincent's doctors and medical directors, it is freed from any liability for employment discrimination that those senior employees might commit in exercising those duties.
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. , 449 F. App'x 488, 492 (6th Cir. 2011) ). "Other factors in the analysis include ‘the supervision of the employees’ day to day activities[,] ... promulgation of work rules and conditions of employment, work assignments, and issuance of operating instructions." Id. (quoting Turner v. City of Memphis , No. 2:17-cv-2447, 2018 WL 283752, at *5 (W.D. Tenn.) ).
In the employment discrimination context, the term "employer" is " ‘liberally construed to effect the remedial purposes of the anti-discrimination laws.’ " E.E.O.C. v. Falls Vill. Ret. Cmty., Ltd. , No. 5:05CV1973, 2007 WL 756803, at *8 (N.D. Ohio) (O'Malley, J.) (quoting Regan v. In the Heat of the Nite, Inc. , 1995 WL 413249, at *3 (S.D.N.Y.) ). "Where an individual is subject to the control of two independent masters, either or both of them should not be allowed to use their personal contractual arrangements as a basis for foreclosing recovery to that individual." Olynyk, supra , 2005 WL 145947 at 7.
"Thus, the employment relationship ‘is not fixed by labels that parties may attach to their relationship nor by common law categories nor by classifications under other statutes.’ " Branning v. Romeo's Pizza, Inc. , No. 1:19 CV 2092, 2020 WL 3275716, at *3 (N.D. Ohio) (Oliver, J.) (quoting Ellington v. City of E. Cleveland , 689 F.3d 549, 554 (6th Cir. 2012) (internal citation omitted)). Instead, I must consider the "entire relationship" of the employee to his or her employer and the alleged joint employer." Janette v. Am. Fid. Grp., Ltd. , 298 F. App'x 467, 472 (6th Cir. 2008). When "consider[ing] and weigh[ing] all incidents of the relationship[, it does not] matter how the parties characterize the relationship." Bryson v. Middlefield Volunteer Fire Dep't, Inc. , 656 F.3d 348, 355 (6th Cir. 2011) ; see E.E.O.C. v. Skanska USA Bldg., Inc., 550 F. App'x 253, 256 (6th Cir. 2013) (where subcontractor assigned employee to work at contractor's site and evidence showed that contractor rather than subcontractor controlled the employee's day-to-day activities, fact "that the terms of [the parties’ contract] envisioned a more active role for [the subcontractor wa]s beside[ ] the point.").
"To be sure, ‘[t]he degree of importance of each factor [will vary] depending on the occupation and the factual context in which the services are performed.’ But no one factor, including remuneration, is decisive, ..." Bryson, supra , 656 F.3d at 355 (quoting Rev. Rul. 87-41, 1987-1 C.B. 296, 1987 WL 419174 ).
A. St. Vincent
The vast majority of the defendants’ briefing regarding St. Vincent is devoted to the argument that Dr. Holland's employment agreement with the Toledo Clinic and Toledo Clinic's Services Agreement with St. Vincent defined him as a Toledo Clinic employee. St. Vincent points to various contractual provisions that defined Dr. Holland as a Toledo Clinic employee and as an "independent contractor" vis-a-vis St. Vincent. St. Vincent also argue at length regarding its and Toledo Clinic's intent in structuring Dr. Holland's employment terms.
As discussed above, however, the intentions of the alleged joint employers and the contractual structure they create do not control the joint-employer inquiry for federal anti-discrimination purposes. Allowing the fact that an employee of one company has been assigned to work at an independent business’ premises "to prevent a finding of employment discrimination would establish precedent permitting a company to employ its workforce through a [third party] to avoid Title VII liability. Such a result would undermine the purpose of Title VII." Hollis, supra, 2010 WL 11401633, at *6 (citing Brown v. City of N. Chicago , 2006 WL 1840802 at *7 (N.D. IL) ); accord Olynyk, supra , 2005 WL 1459547, at *6-7.
Moreover, St. Vincent's argument that the terms of its Services Agreement with Toledo Clinic are controlling here becomes all the more unconvincing in light of the parties’ failure to follow a number of the Services Agreement's terms and those terms’ inconsistency with terms of Dr. Holland's employment agreement.
Most notably, although the Services Agreement was between Toledo Clinic and St. Vincent and provided for Dr. Holland to be assigned to St. Vincent, (Doc. 73-15, pgID 4555), in reality, Dr. Holland performed much of his work at and for St. Anne. He was St. Anne's only cardiothoracic surgeon and was selected to "lead and start" a cardiovascular surgery practice at St. Anne. (Doc. 94, pgID 69); (Doc. 61, pgID 5307). The parties did not create any formal documentation to authorize that divergence from the Service Agreement's terms.
Dr. Holland has not named either St. Anne or its parent, Mercy Health North LLC, as defendants in this action.
Another notable example of how the parties disregarded the terms of the Services Agreement and Dr. Holland's Employment Agreement is their contradictory handling of which entity was entitled to the fees he generated. The Employment Agreement provided that "[a]ll Professional Fees are Property of Toledo Clinic ," (Doc. 73-1, pgID 4307) (emphasis in original). The Services Agreement, in contrast, specified that St. Vincent would "have the sole and exclusive right to bill and collect fees for [Dr. Holland's] services." (Doc. 73-15, pgID 4558).
An examination of the parties’ actual conduct and practices reflects that St. Vincent was, in fact, Dr. Holland's joint employer.
To be sure, St. Vincent did not directly hire Dr. Holland. Nor did it directly terminate his association with the hospital. But, it played a significant role in both those events.
First: St. Vincent's executives and surgeons conducted many of Dr. Holland's employment interviews. (Doc. 90-21, pgID 5056). Before Toledo Clinic contracted with Dr. Holland, St. Vincent agreed with Toledo Clinic in the Services Agreement that the Clinic would assign Dr. Holland to work at St. Vincent. (Doc. 73-15, pgID 4555). The parties further agreed that any replacement surgeon for Dr. Holland had to be mutually agreed to by Toledo Clinic and St. Vincent. (Id. , pgID 4555).
Second: the Services Agreement gave St. Vincent the right to terminate the Agreement—and in so doing, end its association with Dr. Holland—without cause on ninety days’ notice. (Doc. 73-15, pgID 4560). St. Vincent, in fact, ended Dr. Holland's association with it when, ninety days before the Agreement's five-year term it notified Toledo Clinic it would not be renewing the Services Agreement. (Doc. 73-16, pgID 4568).
St. Vincent relies heavily on the fact that Toledo Clinic for one year thereafter nominally continued nominally to employ Dr. Holland.
In the employment discrimination context, that fact shows that for that period Toledo Clinc remained Dr. Holland's joint employee. It does not mean that Dr. Holland was not for five years during the term of the Services Agreement a joint employee of St. Vincent.
Although St. Vincent did not contract directly with Dr. Holland, it agreed with Toledo Clinic that it would pay Dr. Holland a salary equivalent to that of other cardiothoracic surgeons in the market. (Doc. 73-15, pgID 4567). The Services Agreement also provided for St. Vincent to compensate Toledo Clinic a specific amount for five years based on that equivalent salary, benefits, and an additional amount to cover Toledo Clinic's administrative expenses. Compare (Doc. 73-1, pgID 4316-17) with (Doc. 73-15, pgID 4567).
Dr. Holland's Employment Agreement defined his compensation and benefits "[d]uring the term of the Services Agreement" with St. Vincent. (Doc. 73-1, pgID 4305, 4316). When St. Vincent did not renew the Services Agreement, Toledo Clinic stopped paying him the amount that the Employment Agreement specified. In fact, the Clinic slashed his salary to virtually zero. (Doc. 90-42, pgID 5134); (Doc. 68, pgID 82-83).
Because Toledo Clinic compensated its physicians on a revenue minus expenses model, with the termination of the Services Agreement eliminating Dr. Holland's revenue, his pay was cut to virtually zero for the time he remained nominally employed by Toledo Clinic after that termination. (Doc. 90-62, pgID 5326).
St. Vincent argues that it did not direct and supervise Dr. Holland's employment because it did not have a supervisor in the operating room directing him how to perform cardiothoracic surgeries.
That argument misses the point. The factors most relevant to determining whether an alleged joint employer directs and supervises an employee "[will vary] depending on the occupation and the factual context in which the services are performed." Bryson, supra , 656 F.3d at 356.
One court described how courts should apply the factor of control of the employee's day-to-day activities when the employee is a medical doctor:
A doctor must have direct control to make decisions for providing medical care, but the hospital must assert a degree of conflicting control over every doctor's work — whether an employee, an independent contractor, or a doctor merely with privileges — to discharge its own professional responsibility to patients. Consequently, it is less productive to debate the control over the discharge of professional services in the medical context than it might be in other service relationships. More enlightening is 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 v. Inova Health Sys. Servs. , 115 F.3d 256, 260 (4th Cir. 1997) (citations omitted).
One doubts, in any event, that St. Vincent had someone overseeing the other cardiothoracic surgeons at their labors.
The evidence shows that the parties somewhat shared administrative tasks relating to Dr. Holland's employment. But those that St. Vincent provided were, vis-a-vis the control factor, far more significant than those that the Toledo Clinic performed.
The Clinic gave Dr. Holland his paycheck and provided, as the Employment Agreement provided, his benefits. Its doing so was rather straightforward and entirely ministerial. Toledo Clinic exercised no control over Dr. Holland's day-to-day activities. (Doc. 70, pgID 3746-47). Dr. Holland had no office, saw no patients and performed no surgeries at the Clinic. No one from the Clinic had anything to do with, much less played a role in or exercised any authority over, what he did and where he did it at St. Vincent.
Things were vastly different at St. Vincent. It was involved in every aspect of his work there. It took care of the administrative and procedural aspects of Dr. Holland's daily activities, just as it did for the other cardiothoracic surgeons. It told him when and where to be, what to do and to whom to do it, and who would be with him once there. In between he had an office with the St. Vincent cardiothoracic surgeons: he was no guest in a waiting room. To go where he needed and do what he had to do, St. Vincent gave him his ID badge, scrubs, mask, surgical implements, and an operating room.
St Vincent featured him in its advertising – holding him out, as it were, as one of its own.
St. Vincent subjected him to peer review, its quality assurance standards, and its other policies and procedures. Its retained ownership over the medical records that he created while treating his – and its – patients.
Most importantly, St. Vincent provided him with most of those patients. It billed those patients, and retained the proceeds, except for the $750,000 the Service Agreement obligated it to pay to Toledo Clinic
In a word, St. Vincent treated him just like the cardiothoracic surgeons on its own medical staff. It was where he went to practice his profession and earn his income. The only difference was that he concurrently was a signatory to an Employment Agreement with the Toledo Clinic, which paid him from the funds it received from, and which he had earned at, St. Vincent. Otherwise, in what it did with and for him, where he did what it wanted, and what St. Vincent expected of him, differed not at all from what it did for and expected of its other two cardiothoracic surgeons.
In all but having his name on St Vincent's formal roster of its staff physicians, he was a St. Vincent employee. Like everyone else who went to work there, it was where he spent his working life and earned his livelihood. At St. Vincent, he subjected himself to the same degree of control, with the same obligations and responsibilities as everyone else
For these reasons, I grant partial summary judgment to Dr. Holland and hold that St. Vincent was his joint employer for employment discrimination purposes. Accordingly, he may proceed with his employment discrimination claims against St. Vincent.
B. Mercy Health
Mercy Health contends that it is entitled to summary judgment on Counts I-III because Dr. Holland has failed to establish any basis either for finding it was his joint employer or for piercing its corporate veil. I agree.
Dr. Holland has not submitted anything like the evidentiary basis necessary to meet the standard for piercing Mercy Health's corporate veil. See Sampson v. Sisters of Mercy of Willard, Ohio , No. 3:12-CV-00824, 2015 WL 3953053, at *4 (N.D. Ohio) (Helmick, J.) (listing veil piercing factors). Moreover, in a September 29, 2020, status conference plaintiff's counsel represented that he was not pursuing a single-entity theory, See (Id. ). He clarified that Dr. Holland's claims against Mercy Health rested on what he claims is its status as his joint employer. Under a joint-employer theory, "unlike in the single-employer context, the two [entities] are in fact independent." Sanford, supra, 449 F. App'x at 491.
Throughout this litigation, the attorneys and several, if not all, witnesses have glossed over the distinct corporate status of Mercy Health, its subsidiaries, and the subsidiaries’ subsidiaries – one of which is St. Vincent. This undoubtedly happened because the personnel of the various Mercy Health-affiliated entities, who are not lawyers, have routinely referred to all of Mercy Health, its subsidiaries, and its sub-subsidiaries as "Mercy." It is not surprising that they would do so, but their non-specific use of the term "Mercy," which the lawyers did nothing to clarify, does not justify disregarding those entities’ distinct corporate status. See Anwar v. Dow Chem. Co. , No. 15-CV-12708, 2016 WL 5070269, at *4 (E.D. Mich.), aff'd , 876 F.3d 841 (6th Cir. 2017).
Indeed, both parties appear to have sought to make strategic use of the record-wide ambiguity. The plaintiff applies the Mercy name indiscriminately to all Mercy-related entities. See, e.g. , (Doc. 89, pgID 4804-06). The defendants, who had most to lose from such scrambling, sometimes attempted to change references to Mercy into references to St. Vincent. See, e.g. , (Doc. 73, pgID 4260-61). While this strategic disingenuity has been particularly unhelpful, it does not alter the formal relationships of those entities. Anwar, supra , 2016 WL 5070269, at *2.
Mercy Health is a corporation with its offices in Cincinnati, Ohio. (Doc. 90-61, pgID 5279). Between St. Vincent and Mercy Health in Mercy Health's hospital system is another entity called Mercy Health North, LLC ("North, LLC"), which is Mercy Health's wholly owned subsidiary. (Doc. 73, pgID 4255). While Dr. Holland points to numerous instances in which witnesses referred generically to "Mercy" as their employer, he has not shown that North, LLC, let alone Mercy Health, exercised the level of day-to-day control necessary to establish a joint employer relationship.
As the court stated in Anwar, supra, 2016 WL 5070269, at *4, "[t]he fact that the ultimate umbrella company, Dow, often refers to these entities as a single entity has no bearing on the question of whether MEG International in fact controls its ‘uncle’ entity MEG Americas."
Dr. Holland argues that there is some overlap between Mercy Health's officers and personnel and St. Vincent's. (Doc. 97, pgID 6182).
Dr. Holland accuses defendants of stating "blatant falsehoods" regarding whether individuals, such as Dr. Andrabi and Mr. Arquilla, were Mercy Health employees as opposed to St. Vincent employees based on deposition testimony in which they identified themselves as "Mercy" employees. (Doc. 97, pgID 6182-84). While defendants similarly attempt to use this ambiguity to their advantage, for Dr. Holland's counsel to make such a serious allegation when he has been equally disingenuous regarding the issue is beyond the pale.
The existence of overlapping officers, directors, or personnel, however, is not sufficient to establish a joint-employer relationship. See United States v. Bestfoods , 524 U.S. 51, 69, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998) (noting the "well-established principle [of corporate law] that directors and officers holding positions with a parent and its subsidiary are presumed to ‘change hats’ to represent the two entities separately, despite their common ownership." (Alteration in original) (citations omitted); see also Anwar, supra , 2016 WL 5070269, at *2 (same). Indeed, "it is entirely appropriate for directors of a parent corporation to serve as directors of its subsidiary, and that fact alone may not serve to expose the parent corporation to liability for its subsidiary's acts." Bestfoods, supra , 524 U.S. at 69, 118 S.Ct. 1876 (quoting Am. Protein Corp. v. AB Volvo , 844 F.2d 56, 57 (2nd Cir.), cert. denied , 488 U.S. 852, 109 S.Ct. 136, 102 L.Ed.2d 109 (1988) ).
Similarly, even though St. Vincent and St. Anne are wholly owned subsidiaries of Mercy Health, that fact does not make Mercy Health the joint employer of those hospitals’ employees. As stated in Bestfoods, supra, 524 U.S. at 61, 118 S.Ct. 1876 (internal quotation marks omitted): "It is a general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation ... is not liable for the acts of its subsidiaries." See also Martin v. Lincor Eatery, Inc. , 423 F. Supp. 3d 432, 441 (E.D. Mich. 2019) ("The plaintiffs seem to think that unless a corporate group erects a Chinese wall between affiliates, each affiliate is responsible for the other's debts. That is nonsense.’ " (quoting Papa v. Katy Indus., Inc. , 166 F.3d 937, 943 (7th Cir. 1999) )). Thus, to the extent that Dr. Holland seeks to pierce the corporate veils of North LLC and Mercy Health, his claim fails for a lack of evidence.
That leaves Dr. Holland's claim that Mercy Health was a joint employer along with the Toledo Clinic and St. Vincent. He bottoms this claim on his contention that "Mercy's" officers, doctors, and recruiter interviewed him for the position. In fact, the people he identifies as his Mercy Health interviewers were either St. Vincent or Toledo Clinic personnel (Doc. 90-21, pgID 5056-57). And, as noted, it was St. Vincent that terminated Dr. Holland's association with it when it declined to renew the Services Agreement. While that fact is part of the evidence that St. Vincent was his joint employer, it says nothing about any such relationship between him and Mercy Health. In the end, Dr. Holland has presented no evidence that Mercy Health was his joint employer along with Toledo Clinic and St. Vincent as opposed to St. Vincent alone. There is nothing in the record that Mercy Health could: "(1) hire, fire, and discipline; (2) affect compensation and benefits; and (3) direct and supervise performance," Johnson, supra , 2019 WL 6917902, at *3 (internal quotation marks omitted). Moreover: "[e]ven if a parent company has some influence in certain employment decisions ... the factor is not satisfied if it does not control those decisions in the manner seen in single employer situations.’ " Passmore v. Mapco Express, Inc. , 447 F.Supp.3d 654, 665 (M.D. Tenn. 2017) (quoting Lisenbee v. FedEx Corp. , 579 F. Supp. 2d 993, 1002–03 (M.D. Tenn. 2008) ).
Dr. Holland argues that Mercy Health assigned him to perform surgeries at St. Anne and St. Charles and that the fact it did so without a modification of his written employment contract demonstrates that he worked for Mercy Health rather than St. Vincent. (Doc. 88. pgID 4756). The record, however, reflects that Toledo Clinic and St. Vincent discussed and planned from the beginning for Dr. Holland to initiate a cardiothoracic surgery practice at St. Anne, (Doc. 89, pgID 4804).
The record also establishes Toledo Clinic and St. Vincent mutually agreed that Dr. Holland would perform surgeries at St Anne as well as at St. Vincent. (Doc. 94, pgId 5844-45). The fact that Toledo Clinic did not revise its Employment Agreement with Dr. Holland or its Services Agreement with St. Vincent is immaterial. Moreover, Dr. Holland has not presented evidence that Mercy Health ever assigned him to work at St. Anne.
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Thus, Mercy Health was not Dr. Holland's joint employer, and it is entitled to summary judgement on Counts I-III.
Conclusion
On the one hand, Dr. Holland has presented more than enough evidence to support his contention the St. Vincent was his joint employer vis-a-vis his claim of discrimination. On the other, he has presented nearly no evidence to support his contention that Mercy Health was likewise his joint employer, and even less evidence to enable him to pierce Mercy Health's corporate veil.
It is, accordingly, hereby
ORDERED THAT:
1) Plaintiff's motion for partial summary judgment as to Counts I-III (Doc. 87) be, and the same hereby is granted as to defendant St. Vincent and denied as to Mercy Health; and
2) Mercy Health's motion for partial summary judgment as to Counts I-III (Doc. 73) shall be and hereby is, denied as to defendant St. Vincent;
3) Defendant Mercy Health's motion for partial summary judgment as to Counts I-III be, and the same hereby is granted.
4) The Clerk shall forthwith schedule a status/scheduling conference.
So ordered.