Opinion
No. 06-1707-cv.
Argued: August 2, 2007.
Decided: October 29, 2007.
Appeal from a final judgment of the United States District Court for the Western District of New York (Elfvin, J.), granting defendants summary judgment. We VACATE the summary judgment order on the grounds that a genuine issue of material fact exists regarding the plaintiff's employment status, and we REMAND for trial.
BARBARA E. SALAMON, West Seneca, New York, pro se, Plaintiff-Appellant.
RANDALL D. WHITE, (Terrence M. Connors, on the brief), Connors Vilardo, LLP, Buffalo, New York, for Defendants-Appellees.
(ANTHONY J. COSTANTINI, (Eve I. Klein, Brian Damiano, Joanna R. Varon, on the brief), Duane Morris LLP, New York, New York, Court-appointed Amicus Curiae to Plaintiff-Appellant.)
Plaintiff-appellant Dr. Barbara Salamon ("Salamon") sued defendants-appellees Our Lady of Victory Hospital ("OLV"), four of its doctors, Dr. Michael C. Moore ("Moore"), Dr. Franklin Zeplowitz ("Zeplowitz"), Dr. John F. Reilly ("Reilly"), Dr. Albert J. Diaz-Ordaz ("Diaz-Ordaz"); and its then-Chief Executive Officer, John P. Davano ("Davano"). Salamon claims that the defendants-appellees discriminated against her on account of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq. According to Salamon, beginning in May of 1996, Moore sexually harassed her by repeatedly making inappropriate comments and unwanted advances. When she complained, Moore retaliated against her by using his powers as a hospital administrator to give her undeserved negative performance reviews, causing serious damage to her career prospects. The remaining defendants, Salamon alleges, were complicit in Moore's retaliatory conduct, condoning Moore's behavior and assisting him in using the hospital's "quality assurance" process to punish her for spurning — and reporting — Moore's sexual advances. In addition, Salamon claimed that the defendants were liable under Title VII for interfering with her future employment opportunities under Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973), and for tortious interference with her business relationships.
Moore was the Chief of OLV's Gastroenterology Division; Zeplowitz was OLV's Chief of Staff, Vice President of Medical Affairs, Chairman of the Medical Executive Committee and the Chief of OLV's Credentials, Quality Review and By-Laws Committees; Reilly was OLV's Chief of Medicine and a member of OLV's Medical Executive Committee; Diaz-Ordaz was a member of OLV's Quality Review Committee; and Davanzo was OLV's President/Chief Executive Officer. Memorandum and Order of March 8, 2006 ("Order") at 1 n. 2.
The defendants moved for summary judgment, arguing, inter alia, that Salamon was an independent contractor, not an employee, and therefore fell outside the ambit of the antidiscrimination statutes. Sibley, they contended, was not Second Circuit law, and in any case, did not apply to Salamon on the facts at bar. As to the remaining state claim, defendants urged the Court to decline to exercise supplemental jurisdiction.
On March 8, 2006, the District Court for the Western District of New York granted summary judgment to all defendants. With respect to Title VII and the NYHRL, the district court's decision was based on its finding that no triable issues of material fact existed regarding Salamon's employment status: Salamon, a physician with hospital staff privileges was, the court concluded, an independent contractor. Therefore, defendants' actions — even if discriminatory and retaliatory as charged — were not regulated by either statute. Further, the court found that Sibley was inapplicable and since there were no surviving federal claims, it declined supplemental jurisdiction on the state tortious interference claim. See Order at 3-4. Salamon appeals.
Salamon proceeded pro se on appeal. Since significant questions were involved, we appointed amicus counsel to address the following questions: 1) Did the district court properly conclude that Salamon did not create a triable issue of material fact with regard to her status as an "employee" covered by Title VII? What facts, as opposed to legal conclusions, are in dispute? 2) Did the district court properly apply the factors set forth in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), taking into account any relevant case law since Reid was decided? Should and why should this Court apply Reid differently in the Title VII context than in other contexts, including, for example, the context of the Copyright Act of 1976, which Reid concerned? 3) Can a physician with hospital privileges be considered an "employee" for Title VII purposes, and if so, under what circumstances? Under the facts of this case, why should this Court not reach the same outcome as those reached by other courts of appeals in Shah v. Deaconess Hospital, 355 F.3d 496 (6th Cir. 2004); Vakharia v. Swedish Covenant Hospital, 190 F.3d 799 (7th Cir. 1999); Cilecek v. Inova Health System Services, 115 F.3d 256 (4th Cir. 1997); and Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270 (5th Cir. 1988)? 4) Should this Court recognize "interference" liability under Title VII, under which a defendant is liable for interfering with the future employment activities of a non-employee plaintiff? See Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) (describing theory); see also Gulino v. New York State Education Department, 460 F.3d 361 (2d Cir. 2006) (discussing Sibley). If so, has Salamon created a triable issue of material fact that defendants have interfered with her future employment activities?
We thank the amicus counsel for their participation.
Title VII, by its terms, only applies to "employees." 42 U.S.C. § 2000e(f). An employer may lawfully avoid its strictures by having its work performed by independent contractors. When an employer claims to fit within this exclusion, the fundamental question is whether the putative employee is in fact an independent contractor, or has merely been labeled one by the defendant. The inquiry is necessarily fact-specific. To be sure, staff physicians like Salamon have been classified as independent contractors largely because of the extent to which they control their own practices even while affiliated with a hospital. But relationships between staff physicians and the hospitals in which they work may differ. A physician's professional independence — his or her degree of control over the manner and means of the work — may vary. In effect, the amount of control a putative employer exerts relative to the employee necessarily falls somewhere along a continuum, an independent contractor at one end, an employee at the other.
In the case at bar, the factual record is contested, with mixed indicators as to where Salamon fits on the continuum. We therefore hold that it was error for the district court to grant summary judgment to the defendants. We REVERSE and REMAND for a jury determination of this issue.
Since we find that the antidiscrimination claims under Title VII and the NYHRL survive, we also reverse the district court with respect to its decision declining jurisdiction over the state claim of tortious interference with business relations. However, we affirm the district court's finding with respect the plaintiff's Sibley claim.
BACKGROUND
I. Facts
On appeal from a grant of summary judgment, we view the facts in the light most favorable to plaintiff Salamon, the non-moving party. See, e.g., Covington v. City of New York, 171 F.3d 117, 121 (2d Cir. 1999).
A. Salamon's Initial Relationship with OLV
Salamon is a board-certified gastroenterologist and internist licensed to practice medicine in New York State. In 1994, OLV approved privileges for Salamon in the associate staff category, which was then changed to provisional staff. Later, she was extended full medical staff privileges. Appellant's Appendix ("App.") at. 133. Staff privileges at OLV were awarded for two-year terms, but subject to renewal. The renewal process was controlled by OLV and depended largely upon the recommendations of, among others, three of the defendants: Moore, Chief of OLV's GI Division; Reilly, Chief of the Medical Department; and Zeplowitz, OLV's Chief of Staff. See App. at 442.
The record is somewhat inconsistent as to whether Salamon was in fact granted "active" — i.e., full — staff privileges. The plaintiff's statement of material facts states that she was promoted to active staff in late 1995, citing to Salamon's affidavit. App. at 133 (citing App. at 144); see also Order at 4-5 (discussing Salamon's staff privileges without differentiating between levels of staff privileges). Salamon's affidavit, however, is less than clear. She states that she was appointed in 1994 as an "associate" staff member; the name of the category was later modified to "provisional" staff. App. at 144. The OLV bylaws require that a provisional staff member must "[b]e qualified for advancement to Active Staff membership" within a year. If a provisional staff member is "not so advanced and except for good cause, [she is] subject to a reduction in Staff category or to revocation of Staff privileges." App. at 432.
However, elsewhere in her affidavit, Salamon states that her "privileges were never extended from provisional . . . to active staff, and [that she] was never reappointed biennially like other physicians at OLV." App. at 174. Furthermore, she claimed that during Davanzo and Zeplowitz's tenures on the OLV Credential's committee, she was "never reappointed nor advanced" despite satisfying the Hospital's criteria. App. at 174-75; see also Supplemental Appendix for Defendants-Appellees ("Supp. App.") at 31 (listing Salamon as a provisional staff member as of May 1, 2002).
Whatever the label, Salamon remained at OLV for almost nine years, performing largely the same duties as an active staff member, with the same privileges. App. at 432. Compare App. at 430-31 (active staff), with id. at 432-33 (provisional staff).
Salamon received the privileges and was subject to the duties of all staff physicians at OLV. Her clinical privileges extended to the use of the hospital's facilities. Specifically, she was allowed access to the endoscopy equipment in the gastroenterology ("GI") division. That access was crucial. Because of the equipment's prohibitive cost and immobility, Salamon was "wholly dependent on OLV's instrumentalities to work." App. at 178. Salamon was also able to admit patients to OLV. App. at 430. But she obviously could not hire her own staff; she was required to use the services of OLV nursing and support staff in her treatment of patients.
In turn, she submitted to the scrutiny and supervision of the OLV administration in a number of ways. She was obliged to participate in one-hour staff meetings every three months, and spend a certain amount of time "on call" for OLV. App. at 431, 436. During Salamon's required on call time, she was obliged to treat OLV patient needs as they arose, whether or not they were her patients. This duty extended to "follow up" treatment, obligating her to continue treating a patient she had first seen while on call, even after her on call time was over.
When Salamon was not on call for OLV, she was free to set her own hours and maintained her own patient load and schedule, subject to the availability of the endoscopy equipment, which the Hospital controlled. She determined which patients to see and treat, and whether or not to admit them to OLV (or another hospital). She was allowed to maintain staff privileges at other hospitals, and did, though most of her practice was at OLV. Salamon was not paid a salary, wages, benefits, or any other monetary compensation by OLV. She billed patients (or their insurers) directly for her services, while OLV billed them separately for the corresponding use of its facilities.
The most significant mechanism of supervision over Salamon was the OLV "quality assurance program," in which Salamon was required to participate. See App. at 431. According to the plaintiff, the quality assurance program effectively permitted regular substantive oversight of her medical decisions, and played a significant role in her reappointment. Moreover, whatever the level of scrutiny and supervision of her work before the alleged harassment began, Salamon claims that afterwards, and in particular, after she complained about her treatment, that scrutiny and supervision became more intense and skewed against her.
The record alternatively refers to "quality management" or "quality assurance." There appears to be no substantive difference in the terms; they merely refer to slightly different components of the process. We use the phrases interchangeably. OLV's bylaws provide for a "Quality Review Committee," App. at 450, of which Susan Kessler, the "Quality Management Director," App. at 207, 450, was a member. The committee oversaw the "quality assurance" process, Supp. App. at 21, 38, 41.
According to Salamon, the quality assurance program included detailed requirements as to when and how her work was to be performed, requirements intended in some cases to maximize profits, not patient care. See, e.g., App. at 156. In fact, Salamon claims that OLV's efforts to cut costs and improve revenue often directly conflicted with her professional medical judgment. For example, program standards mandated that gastroenterologists perform an invasive procedure called "esophageal dilatation" on any patient with difficulty swallowing or complaining of acid reflux. Salamon's concluded that this procedure was often medically unnecessary. App. at 164. While she objected to the practices on medical grounds, registering her complaint with the Quality Management Director, App. at 168, OLV insisted that she comply, see App. at 167-70. Salamon alleges that the reason for overriding her judgment was "to increase OLV's revenue." App. at 164. Salamon also alleges a similar dispute over the use of endoscopies. She preferred to keep patients within the hospital until after the procedure was completed. Medicare, however, only reimbursed the hospital for outpatient endoscopies. Moore, acting as a hospital administrator for the GI Division, "specifically instructed" staff physicians, such as Salamon, to discharge patients before performing endoscopies, so as to recoup a higher reimbursement. App. at 159-61. Salamon stated that this practice "worked to my patients' detriment and to my financial disadvantage, but economically benefitted the Hospital." App. at 160. In addition, physicians were also strongly encouraged to prescribe cheaper generic medications, even where this could mean a difference in a medication's effect. App. at 170. If "lost revenue" was identified in a physician's practice, she would be encouraged to alter her medical work so as to ameliorate its financial impact on the department.
The head of the Quality Review Committee, Nancy Kessler, regularly reviewed physicians' records for "variations" from the Program, compiling statistics about each. If a physician "came [in] over the allowed variations, then [Kessler] was supposed to let [defendant Reilly] know about it." App. at 152. Moreover, Kessler determined which cases the Quality Review Committee would examine and discuss. App. at 152. She also attended division and department meetings to make sure that the quality assurance protocols were being followed. Reilly's job was to "maintain continuing surveillance of the professional performances of all practitioners," App. at 442, so as to "supervise the activities of the physicians in the department of internal medicine," App. at 154.
Quality assurance standards were enforced in connection with staff physician's biennial reappointment and disciplinary processes, in which Salamon was subject to the supervision of several members of the staff, including defendants Zeplowitz, Davanzo, Reilly, and Moore. Each had authority to affect her credentials and her privileges at OLV. App. at 174. Reappointment was not automatic. It was based on a detailed review of all of the "pertinent information" on each practitioner, including their compliance with quality assurance standards and general professional competence. App. at 423-24. Also included were such factors as attendance at hospital meetings, compliance with hospital bylaws, "general attitude toward peers and patients," and utilization of facilities for patients, App. at 423-24.
If Salamon was a provisional staff member, these methods of control may have been stronger still. See App. at 432 (noting that provisional staff who are not advanced to active staff status may be "subject to a reduction in Staff category or to revocation of Staff privileges").
B. The Alleged Harassment, Retaliation and Increased Scrutiny
Salamon alleges that her relationship with OLV changed and the level of her supervision intensified after she complained of being repeatedly sexually harassed by Dr. Moore, Chief of the GI Division. According to Salamon:
During my practice at OLV, Moore made a number of completely inappropriate and unwanted remarks to me, including, but not limited to, comments about my clothing, appearance and `attractiveness.' In early 1996, Moore's comments became not merely unwanted, but harassing and offensive, and consisted of unwelcome sexual advances that included the statements `Kiss me' and `I love you.' Moore, using a sexually suggestive tone and manner, also called me his `favorite gastroenterologist.' Additionally, Moore directed offensive behavior and body language toward me. On one occasion, Moore physically cornered me in the GI unit hallway and asked if I was `available' for him on Sunday afternoons. Moore also told me that he had `sexual fantasies' about me in the presence of Monica Kulik, OLV's GI lab secretary.
App. at 202-03. Kulik, the OLV's GI lab secretary, told Salamon that Moore had sexually harassed her as well. App. at 210.
After Salamon's July 1996 refusal of Moore's advances, her relationship with OLV changed. Administrative scrutiny and intervention into her medical practice markedly increased. Her cases began to be reviewed and criticized at every staff meeting as failing to meet quality standards. App. at 203. She was regularly faulted for her refusal to perform the esophageal dilatations which she judged were not indicated and medically unnecessary. The level of scrutiny was substantially greater than that given to any other physician in the GI Division. App. at 171. Moore, in particular, focused almost exclusively on her cases while paying far less attention to complications in the cases of other physicians. See App. at 205.
Salamon repeatedly complained about her treatment. In August 1996, Salamon met with Albert Condino (then-President and CEO of OLV, preceding defendant Davanzo in this capacity) and defendant Zeplowitz, Chief of Staff, and related to them her claims concerning Moore's harassment. App. at 209. Condino and Zeplowitz spoke to Moore, but concluded that Salamon's complaints were unfounded and that she had misperceived his comments. App. at 213. In November 1996, Salamon wrote a letter to Moore, copied to Kessler and Reilly, charging that Moore's review of her work deliberately misrepresented it and faulted her for not performing medically unnecessary procedures. According to Salamon, the defendants never acknowledged or responded to her complaints. App. at 205.
She also complained about unfair treatment in the peer review process by letters of January 2, 1997 and February 20, 1997. App. at 205-06.
No action was taken against Moore. Salamon, however, was another matter.
C. Disciplinary Action Against Salamon
Before Moore's August 1996 meeting with Zeplowitz and Condino, the meeting which followed Salamon's allegations of sexual harassment, neither had ever received negative performance reviews regarding Salamon's practice. See App. at 581. Indeed, her reappointment profiles for 1995 and 1996 showed "no quality concerns." App. at 215. Less than a week after that meeting, however, Zeplowitz, Condino, Kessler, Reilly and another doctor met and decided to examine Salamon's practice. App. at 213. They indicated their intent to re-review Salamon's cases from 1995 and the first half of 1996, despite the fact that the reports of her work during this period had already been peer-reviewed. App. at 215.
Salamon's work was then subjected to several additional levels of review, notwithstanding the fact that some of the reports generated by the process indicated that her patient treatment was satisfactory. In so doing, OLV contravened its usual protocols. It examined Salamon's practice in greater depth than that trained on other physicians, even ones with a history of possible violations of quality assurance standards. See App. at 217-18. Throughout, Salamon challenged the fairness of the process. When Dr. Ostrov, an independent expert, was retained to review her files, for example, she argued that his review was tainted by suggestive letters written to him by OLV and OLV's refusal to allow Ostrov to see Salamon's rebuttal. App. at 238. She also claims that a member of the ad hoc committee told her — before that committee met to evaluate Salamon's practice — that OLV was determined to reach a negative outcome in the review, regardless of the reality. App. at 249-50, 541. Other doctors in the GI Division confided in Salamon that Moore was using his personal relationships with administration members to corrupt the review proceedings. See, e.g., App. at 235. Salamon stopped receiving patient referrals from other physicians at OLV. Her reputation suffered with the staff at OLV and other hospitals where she maintained privileges.
In turn: a three-physician internal review, App. at 221; an external review by an independent outside expert, Dr. Arthur Ostrov, App. at 236; review by a five-physician ad hoc committee, including an interview with Salamon and submission of written arguments by her, App. at 244; review by an outside expert paid for by OLV, Dr. David Fay, App. at 246, although the record is murky on who chose Dr. Fay; ratification of the ad hoc committee's review by an eleven-physician Medical Executive Committee following an appearance and written submissions by Salamon, App. at 250; a hearing before a five-physician hearing panel, including testimony and cross-examination by Salamon, App. at 253; and, at Salamon's request, further review by the OLV Board of Directors, App. at 257.
Specifically, Dr. Ostrov's report "graded [Salamon's] cases as below standard," App. at 241, but Dr. Fay concluded that "Dr. Salamon's management . . . was in no way substandard," and stated that he "[saw] no issues of concern," App. at 247.
In particular, OLV never initiated the re-review of files of other GI physicians even when their patients suffered serious complications, such as a perforated esophagus or colon, complications which none of Salamon's patients had suffered. App. at 219-220.
As a result of the review, Salamon was ordered by OLV to undergo a three-month "reeducation" and mentoring program. In order to successfully "pass" the reeducation, she would have to consistently perform these practices as her OLV mentor instructed her to, presumably in contrast to how she had previously performed them. See App. at 171. Failure to complete the re-education program would result in suspension. App. at 172. The OLV administration also warned Salamon that it was possible that a negative report about her would be made to the National Practitioner Data Bank ("NPDB") if she did not complete the reeducation program. Ultimately, however, no physician mentor could be found to take on the responsibility of conducting the reeducation.
Specifically, she was to be reeducated in four substantive areas: "(a) indications and treatment for EGDs [sic]; (b) appropriate treatment of AV malformations and removal of polyps found on colonoscopy; (c) use of ph monitoring with esophageal manometry; and (d) length of colonoscopy procedures and level of sedation during colonoscopy." App. at 171.
In June 2003, OLV merged with Mercy Hospital, another area hospital. The reeducation and mentoring requirement, along with all of Salamon's staff privileges, expired by operation of law when OLV ceased to exist as a legal entity. No report was ever made to the NPDB, but by this time the allegations of poor quality work had spread throughout the area by word of mouth. Salamon applied for work with other local employers, but received no offers.
II. Procedural History
Salamon first filed a complaint with the EEOC on December 29, 1998. The EEOC dismissed the complaint, finding that she was not an employee of OLV. On January 21, 1999, she filed a complaint in the Western District of New York, claiming antitrust violations, tortious interference with business relations, Title VI violations, Title VII violations, and violation of the New York Human Rights Law.
The district court dismissed Salamon's antitrust and Title VI claims as insufficiently pled on October 5, 1999. After a hearing on defendants' summary judgment motion concerning Salamon's Title VII or NYHRL claims, the court found that Salamon was not an employee of OLV; as such, neither statute applied to her claims. On March 8, 2006, the district court granted summary judgment for defendants, rejected her additional claim under Sibley, and declined to exercise supplemental jurisdiction over the remaining state tortious interference claim.
Salamon challenges the district court's finding that she was an independent contractor, arguing that her relationship with defendants met the common-law definition of employment. Alternatively, she argues under Sibley that defendants interfered with other potential employment relationships when t heir disciplinary actions effectively cut off her patient referrals. Finally, Salamon argues that the district court abused its discretion by refusing to exercise supplemental jurisdiction over her pendent state tort claim after dismissing her Title VII claim.
Defendants, conversely, urge us to affirm the district court's finding that the staff physician-hospital relationship did not meet the common-law criteria for employment. They also contend that Sibley was wrongly decided and that, even were we to apply it, it should not extend to interference in the doctor-patient relationship because that is not an "employment" relationship Finally, they argue that the court's refusal to entertain supplemental jurisdiction over the state law claims was proper.
ANALYSIS
I. Applicable Law
A. Standard of Review
Summary judgment will be granted if the moving party shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed.R.Civ.P. 56(c). As noted above, since Salamon is the party opposing the summary judgment, we view the evidence in the light most favorable to her and draw all reasonable inferences in her favor. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Hemphill v. Schott, 141 F.3d 412, 415 (2d Cir. 1998). We review de novo a district court's orders granting summary judgment. E.g., Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 224 (2d Cir. 2006). Our focus here is on whether the court properly concluded there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law on its claim that Salamon was an "employee" of OLV, as that term is used in Title VII and the NYHRL. See Harlen Assoc. v. Incorp. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (stating summary judgment standard).
We apply the same standards of proof to Title VII and NYHRL discrimination claims, and treat them as analytically inseparable. See Mandell v. City of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997). The two will be considered together and referred to simply as "Title VII" in this decision.
B. Law Governing the Employment Status Inquiry
Title VII defines an employee as "an individual employed by an employer." 42 U.S.C. § 2000e(f). In Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992), the Supreme Court ruled that the definitions of "employee," "employer," and "employment" are to be determined using the common law of agency, rather than individual state law, whenever statutes failed to specifically define "employee." While Darden dealt only with ERISA, the courts have adopted its reasoning to apply the common-law agency test in Title VII and other employment discrimination statutes. See O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997) (Title VII); see also Scott v. Massachusetts Mut. Life Ins. Co., 86 N.Y.2d 429, 433-34 (1995) (NYHRL) (looking to the control test, among other factors, to determine the nature of the relationship).
Whether a hired person is an employee under the common law of agency depends on the thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), a case dealing with the ownership of a copyright arising from artwork done "for hire." Once a plaintiff is found to be an independent contractor and not an employee — whether on summary judgment or after a jury trial — the discrimination inquiry is over. The "Reid factors," as they are called, are as follows:
[1] the hiring party's right to control the manner and means by which the product is accomplished; [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party;[11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.
490 U.S. at 751-52 (footnotes omitted).
Reid's list is non-exhaustive. Other relevant factors may be considered "so long as they are drawn from the common law of agency that Reid seeks to synthesize." Eisenberg v. Advance Relocation Storage, Inc., 237 F.3d 111, 114 n. 1 (2d Cir. 2000). As to the listed factors, the court must weigh only those that are "actually indicative of agency in the particular circumstances." Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 110-111 (2d Cir. 1998), disregarding those that are either irrelevant or of indeterminate weight. Eisenberg, 237 F.3d at 114. And the test "was not intended to be applied in a mechanistic fashion." Aymes v. Bonelli, 980 F.2d 857, 862 (2d Cir. 1992). Indeed, the Reid approach must be applied with a view to the context — here, a claim under an antidiscrimination statute. Cf. Dunlop Comm'n on the Future of Worker-Mgmt. Relations, U.S. Dep't of Labor, Final Report 65 (1994), available at http://digitalcommons.ilr.cornell.edu/ key_workplace/2/ (expressing concern that the "formalism" of the Reid test would provide "a means and incentive to circumvent the employment policies of the nation").
After the Supreme Court decided Darden, which involved ERISA, this Court applied Darden's reasoning to hold that the common law of agency determines employment status under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 etseq. In doing so, it rejected the "economic realities" test some courts had adopted to define "employee" under the statute, and rejected the argument that the definition of "employee" should be specially tailored "`in the light of the mischief to be corrected and the end to be attained.'" Frankel v. Bally, Inc., 987 F.2d 86, 90 (2d Cir. 1993) (quoting the previous holding, United States v. Silk, 331 U.S. 704, 713 (1947)).
We obviously do not revise or revisit Frankel today. Frankel, like Darden, was a decision regarding which test should be applied, not how the test should be applied. In fact, in Frankel, we noted that at the level of application "there is little discernible difference between the hybrid test [which sought to combine agency and economic reality tests] and the common law agency test," as both primarily emphasize "the hiring party's right to control the manner and means by which the work is accomplished." Frankel, 987 F.2d at 90. And in Eisenberg, as described above, we expressly distinguished between the application of the Reid test in the copyright setting and in the employment setting. See Eisenberg, 237 F.3d at 115-17.
Title VII was designed to stop "practices and devices that discriminate on the basis of race, color, religion, sex, or national origin." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 457 (1975). Employees were not permitted to waive their statutory "public" rights to be free of discrimination, precisely for the reasons the law required these protections in the first place. See Eisenberg, 237 F.3d at 117 ("[T]he core, substantive protections of the antidiscrimination laws were not intended to be skirted by the terms of individual employment contracts. . . ."). See also Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 737-38 (1981) (rejecting argument that collective bargaining agreement can compel Title VII plaintiff to accept arbitrator's decision on discrimination matter). Statutory protection was needed because the market alone could not ameliorate the problem of discrimination.
Congress has repeatedly indicated that it intends Title VII to sweep broadly. See H.R. Rep. No. 102-40, at 47-48 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 585-86 (discussing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and stating, "If Title VII . . . is to be meaningful, victims of proven discrimination must be able to obtain relief, and perpetrators of discrimination must be held liable for their actions. . . . Legislation is needed to restore Title VII'scomprehensive ban on all impermissible consideration of race, color, religion, sex or national origin in employment." (emphasis added)).
Reid, which dealt with copyright ownership, reflected different concerns. In that setting, the contract the employer and employee entered into to allocate copyright rights controlled, regardless of whether the employee was an independent contractor or not. Only in the absence of such a contract would the court look to the employment relationship and apply the common law of agency, including the Reid factors. Since copyrights may be transferred directly by contract at the will of the parties, employers were unlikely to take the unwieldy step of rearranging their employment structures in order to manipulate ownership. See Eisenberg, 237 F.3d at 115-16. As such, it was entirely proper for a court to give special consideration to contractual terms dealing with remuneration or the tax treatment of compensation, along with the other Reid factors, to determine independent contractor status.
In contrast, as this Court found in Eisenberg, the "wholesale importation" of the Reid approach in discrimination cases could seriously undermine Title VII's protections. In effect, an employers cannot opt out of Title VII's strictures indirectly, simply by contractual provisions structuring such things as remuneration or tax treatment, any more than they can force an employee to waive the statute's protections directly. While employers can obviously choose to have their work done through independent contractors rather than employees, the Reid factors must be accommodated to reflect the context.
As this Court has previously held:
[Giving] benefits and tax treatment factors . . . special consideration in determining whether a worker is an employee or independent contractor may make sense in the copyright work-for-hire context because, under the copyright statute, workers and employers are free to allocate intellectual property rights by contract, but its wholesale importation into anti-discrimination law would allow workers and firms to use individual employment contracts to opt out of the anti-discrimination statutes.
Eisenberg, 237 F.3d at 117.
This is not to say that a hospital cannot supervise or impose quality standards on physicians, only that in doing so it may subject itself to the legal duties of an employer. A finding of employment status is not a punishment imposed on hospitals, but a determination of the appropriate statutory regime for the relationship that does, in fact, exist.
II. Application of the Reid Factors
A. The District Court's Findings
The district court found that the first Reid factor — which measures the putative employer's right to control the "manner and means" of contractual performance — weighed against Salamon because, as a physician, "she maintained professional independence with respect to diagnosing and treating her patients." Order at 13; see also id. at 6 ("[P]laintiff does not — nor can she — contend that defendants controlled the `manner and means' by which she performed her GI duties on her patients."). With respect to the remaining factors, it determined that Salamon did not receive any remuneration from OLV for her work ( Reid factors 8, 12, and 13), that she had autonomy to set her own hours and choose her own patients (factor 7), and that she was highly skilled (factor 2), all of which the court took to weigh against the existence of an employment relationship. Order at 5-6, 9. The district court further found that the source of Salamon's tools ( Reid factor 3), the location of her work (factor 4), and the relationship between the work and the hospital's business (factor 10), were all irrelevant. Order at 8. Finally, the district court found that Salamon had conceded the irrelevance of factor 5 (duration of relationship) and factor 9 (hiring and payment of assistants). Order at 8. Having found that all relevant factors weighed against a finding of an employment relationship, the district court concluded that the " Reid factors that are relevant to this analysis all favor a finding that plaintiff was not OLV's employee under Title VII and the NYHRL." Order at 10.
In contrast to the district court, we find the record on the first — and most important factor, the so-called "manner and means" test — to contain significant contested facts, making summary judgment inappropriate. As such, we do not find it necessary to address the remaining Reid factors.
In many ways, Salamon was not like the employees around her. Most importantly, she billed her patients directly, rather than being paid by OLV. She could carry as many or as few patients as she wished. Had she chosen, she could have maintained her position while only appearing at OLV for the few hours each week that she was on call.
But in other ways, Salamon's experience was the experience of an employee. She was fully integrated into a department and a workplace that OLV assembled. She could not choose her co-workers or support staff. She attended staff meetings. OLV administrators monitored and scrutinized her, and subjected her to extensive disciplinary measures. Simultaneously, they reviewed her practice not merely to make certain that she complied with professional standards, but also to make certain that she met OLV's financial requirements. OLV controlled a portion of her weekly time, compelling her to treat patients that it assigned to her, like the nurses and other employees around her, and to use the co-workers it assigned. Her employment was for no fixed term; she had a lengthy and indefinitely renewable relationship with the hospital. And after she claimed harassment, OLV's monitoring and supervision intensified.
B. Application of the Primary Reid Factor: OLV's Right to Control the Manner and Means of Salamon's Performance
The most important factor in determining the existence of an employment relationship is "that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor." Metcalf Eddy v. Mitchell, 269 U.S. 514, 521 (1926). Accord, Eisenberg, 237 F.3d at 114. What is at issue is not merely the right to dictate the outcome of the work, but the right to control the "manner and means" by which the hiree accomplishes that outcome. Reid, 490 U.S. at 751-52.
It is also the foundation for Title VII's limits: Independent contractors arguably do not need Title VII protection because such contractors already have a degree of control over their employment. Contra Danielle Tarantolo, Note, From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce, 116 Yale L.J. 170, 202 (2006) (challenging the claim that "independent contractors, unlike employees, have equal bargaining power with those who hire them, and thus do not require government intervention.").
The district court found this factor to weigh in favor of the defendants because Salamon, as a physician, "had ultimate control over the GI diagnoses, services and treatment plans that she provided to her patients . . . retained her own patients and only on occasion was obligated to treat OLV's patients." Order at 13. As such, it dismissed plaintiff's allegations about the extent to which the OLV's quality management program controlled the manner and means of Salamon's work, finding that "[a] physician's professional obligation cannot allow the hospital in which she works to dictate the diagnoses or the manner in which diagnoses are reached." Id.
But the court's reasoning is far too broad. It overemphasizes the role of professional judgment in the common law agency test and ignores the contested facts in the record. In effect, it carves out staff physicians, as a category, from the protections of the antidiscrimination statutes. While a physician, like any professional, must be given latitude in which to choose a course of action, especially considering the exigencies of medical practice, the mere existence vel non of that latitude is insufficient to sway the manner-and-means test one way or the other. According to the Restatement (Second) of Agency — upon which the Supreme Court relied in articulating this factor, see Reid, 490 U.S. at 751 n. 18 — the proper focus is on the relationship between the parties:
The word [`servant'] indicates the closeness of the relation between the one giving and the one receiving the service rather than the nature of the service or the importance of the one giving it. Thus, ship captains and managers of great corporations are normally superior servants, differing only in the dignity and importance of their positions from those working under them. The rules for determining the liability of the employer for the conduct of both superior servants and the humblest employees are the same; the application differs with the extent and nature of their duties.
Restatement (Second) of Agency ("Restatement") § 220(1) cmt. a (1958). There is nothing intrinsic to the exercise of discretion and professional judgment that prevents a person from being an employee, although it may complicate the analysis. The issue is the balance between the employee's judgment and the employer's control.
A comparison with a medical resident is instructive. Although the circumstances of a resident's practice certainly differ from Salamon's, a resident is a physician, no less bound by the same professional and ethical duty to follow their independent medical judgment. Yet courts have been more willing to recognize residents as employees, reaching the merits of their discrimination claims. See, e.g., Gourdine v. Cabrini Med. Ctr., 307 F.Supp.2d 587, 590-91 (S.D.N.Y. 2001), rev'd on other grounds, 128 Fed.Appx. 780 (2d Cir. 2005); Wang v. State Univ. of N.Y., 470 F.Supp.2d 178 (E.D.N.Y. 2006); accord Ezekwo v. New York City Health Hosps. Corp., 940 F.2d 775, 785 (2d Cir. 1991) ("While a medical residency program is largely an academic undertaking, it also is an employment relationship" for due process purposes); but see Davis v. Mann, 882 F.2d 967, 974 (5th Cir. 1989). In short, independent judgment, standing alone, is an insufficient fulcrum on which to rest the control test.
We note briefly that the degree of independent judgment may also affect the analysis of the second Reid factor. That factor incorporates the common-law presumption that a skilled worker is more likely to be an independent contractor than an employee. But the formula is not absolute. See Restatement § 220(2) cmt. I (noting that highly skilled workers may "resent and even contract against interference" in the performance of their tasks, yet still be employees). Salamon was relatively inexperienced and lacking in skill when she began her tenure at OLV. In fact, OLV's repeated attempts to control her medical practice betray a mistrust not characteristic of the skilled independent contractor relationship. Cf. Aymes, 980 F.2d at 862 (holding that the skill and experience necessary to perform the task, rather than the skill and experience of the putative employee, is the proper consideration).
If Salamon's allegations are true, OLV did exercise substantial control not only over the outcomes of her practice, but over the details and methods of her work, particularly after the alleged instances of harassment — and as a result of her complaints about them. Members of the OLV administration were designated as her supervisors, with the job of "maintain[ing] continuing surveillance of [her] professional performance." App. at 442. Specifically, Salamon argues that OLV's application of its quality assurance standards constituted unwarranted and medically unsound interference with her professional practice.
The quality management standards did not merely measure the quality of her outcomes. They went further, mandating performance of certain procedures (esophageal dilatation) and the timing of others (outpatient endoscopies), as well as impacting on her choices about which medications to prescribe. Reviews of her performance extended beyond merely pointing out negative outcomes; they required her to alter her treatment choices. Indeed, some of the practices pressed on her may not even have been related to outcome indicators. For example, it is not clear from the record that her failure to perform esophageal dilatations resulted in any negative outcomes. Similarly, crediting Salamon's testimony, the performance of endoscopies on an outpatient basis appears to have had an effect only on the hospital's finances, with no relation to medical outcomes at all.
Significantly, the hospital's review of Salamon's practice did not result in the termination of her contract or a simple ultimatum to improve her patient outcomes, but in a detailed "reeducation" program designed expressly to change the methods by which she arrived at diagnoses and treatment. OLV was to dictate "(a) indications and treatment for EGDs; (b) appropriate treatment of AV malformations and removal of polyps found on colonoscopy; (c) use of ph monitoring with esophageal manometry; and (d) length of colonoscopy procedures and level of sedation during colonoscopy." App. at 171. "Appropriate treatment," "removal," "monitoring," "length of . . . procedures," and "level of sedation" are exactly the kinds of "manner and means" over which employers exert control. That this reeducation ultimately did not occur is beside the point. What is relevant to the Reid analysis is that this level of review was clearly contemplated in the staff physician-OLV relationship.
As the district court noted, hospital standards that merely reflect professional and government regulatory standards may not typically impose the kind of control that marks an employment relationship. See Cilecek v. Inova Health System Services, 115 F.3d 256, 262 (4th Cir. 1997), cert. denied, 520 U.S. 1049 (1998). But while the defendants describe their standards as being "mandated by state and federal statutes and regulations," Supp. App. at 21 (citing Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101- 11152; N.Y. Pub. Health Law art. 28; 10 N.Y.C.R.R., Part 405), those statutes do not dictate anything like the treatment details at issue here. They concern health care administration, record keeping, financing, liability, patients' rights, and the delegation of responsibilities. In any case, as described above, Salamon has adduced evidence that some of the practices pressed on her by the hospital were not motivated by concern over patients' health at all, the clear goal of the statutes, but aimed at maximizing OLV's revenue.
The state rules and regulations come closest to governing aspects of everyday medical practice, but even they do not approach the level of performance detail dictated by OLV. For example, 10 N.Y.C.R.R. Part 405.16(c)(2)(ii) states only that "The laboratory director shall . . . assure that all tests, examinations and procedures are properly performed, recorded and reported." It does not specify what constitutes "proper perform[ance]."
See 42 U.S.C. § 11101 (citing the health threat posed by incompetent physicians and creating a system of peer review to alleviate it); N.Y. Pub. Health Law § 2800 (citing "the protection and promotion of the health of the inhabitants of the state").
The district court dismissed Salamon's allegations that OLV intruded on her treatment activities by asserting that "[i]f such were true, plaintiff would be in violation of her professional duties and obligations to her patients and, as such, is opening herself up to malpractice and negligence suits . . . `A physician, properly serving his patient . . . is not subject to external control in the exercise of his professional judgment.'" Order at 15 (quoting Wood v. United States, 494 F.Supp. 792, 798-799 (E.D.Va.1980)). But if Salamon's allegations are true, the defendants did exercise heightened control over the manner and means by which she performed her job. Issues of potential liability to third parties do not change this.
Nor is it true that the practice of medicine brooks no "external control," as the district court's findings suggest. Order at 6 (quoting Wood, 494 F. Supp. at 798-99). Supervisors, especially those who are themselves physicians, may be able to ethically require their supervisees to make risk calculations more conservatively than professional standards or the physician's own judgment would call for (for example, by liberally performing confirmatory tests). Indeed, the impositions alleged by Salamon here fall into that category. Medical residents, who receive such supervision as described above, have been treated as employees. See Gourdine, 307 F.Supp.2d at 590-91 (treating resident as employee and discussing the action of her supervisor); Wang, 470 F.Supp.2d 178 (same).
The control exerted over Salamon's practice by her supervisors was not intermittent. The review was continuous, not merely for negative medical outcomes, but for "variations" from the recommended procedures. App. at 152. Indeed, Salamon alleges that the standards were imposed so closely on her that nearly every one of her cases was scrutinized in every GI staff meeting from July 1996 onward. In short, whether the methods that the hospital required of Salamon merely reflected professional standards of a greater degree of control is a factual issue that is not resolved by the current record.
We are aware that other Circuits have found that hospital peer review programs were not exercises of control over the manner and means of physician practice. See Shah v. Deaconess Hospital, 355 F.3d 496, 499-500 (6th Cir. 2004); Cilecek, 115 F.3d at 261-62; Alexander v. Rush North Shore Medical Ctr., 101 F.3d 487, 493 (7th Cir. 1996), cert. denied, 522 U.S. 811 (1997); Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270, 73 (5th Cir. 1988), cert. denied, 488 U.S. 956. But, as noted above, the analysis is fact-specific. Even those courts have recognized that each case requires scrutiny of the relationship at bar; staff privileges, standing alone, do not make a physician an independent contractor. See Shah, 355 F.3d at 499-500 (analyzing the particular relationship at issue in that case); Cilecek, 115 F.3d at 260-61 (same); Alexander, 101 F.3d at 493 (same); Diggs, 847 F.2d at 272-73 (same).
If Salamon's allegations are true, as we must assume at this stage of the proceedings, OLV's quality assurance program exceeded the control exerted in the cases cited above — particularly in the period after the alleged harassment. In Shah, for instance, the court noted that "[n]othing in the record suggests that [the hospital] has the right to interfere with Shah's medical discretion or otherwise control the manner and means of his performance as a surgeon." 355 F.3d at 500. The plaintiff in Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999), could not "point to any specific evidence that would substantiate her claim that [the hospital] exercised close control or call into question the express statement in the [employment] agreement [that she was an independent contractor." And in Diggs, the court found that the plaintiff was a "provisional staff member" and was required to have a sponsor present during surgical procedures, "but the purpose of that requirement was to have someone to attest to her essential qualifications, not to direct the details of the exercise of her skill." 847 F.2d at 273.
Here, as described above, the record suggests that the quality assurance standards extended beyond mere health and safety regulations, or examining Salamon's qualifications. Rather, the standards included contraindicated medical treatment, administered in order to increase the hospital's revenue, not to improve outcomes. App. at 164. In addition, if Salamon did not comply with the standards, she faced the possibility of negative peer reviews, see App. at 168, and an extensive remedial program that was meant to dictate particular details of her medical practice, see App. at 171. Cf. Shah, 355 F.3d at 500 (standards were applied to physicians only after the fact, as opposed to prospective reeducation requirement here).
In Cilecek, the court minimized the control factor because of the very nature of the medical profession, in which the doctor and hospital necessarily share control over the doctor's work. See 115 F.3d at 260. Therefore, the court concluded, "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." Id. In fact, the court gave weight to some of the very factors Eisenberg discounted, including the tax treatment of the doctor's income and the formal terms of the parties' contract.
The dissent, in fact, underscored the fact that there were contested facts with respect to the degree of an employer's control over the plaintiff. See Cilecek, 115 F.3d at 263-64 (Murnaghan, J., dissenting).
While summary judgment may be appropriate in some cases concerning staff physicians suing hospitals, it is not appropriate in all. We conclude that, viewing the circumstances of this particular case in the light most favorable to the plaintiff, the non-moving party, Salamon has demonstrated a genuine factual conflict regarding the degree of control OLV exercised over her. The case must therefore be remanded for trial.
Although not reaching the issue, this Court has previously expressed some doubt about whether the employee/independent contractor finding should be made by a jury or by the court. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 170-71 (2d Cir. 1998). To clarify, we hold that the question may, and often should, be submitted for disposition by a jury. The difference between an employee and an independent contractor is a mixed question of law and fact, and well within the ken of lay jurors. See Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597 (2d Cir. 2006) (noting that hostile work environment claims are "`mixed questions of law and fact' that are `especially well-suited for jury determination,'" quoting Richardson v. New York State Dept. of Correctional Svcs., 180 F.3d 426, 437 (2d Cir. 1999). At least two other Circuits have reached the same conclusion, albeit in slightly different contexts. See Garcia v. Copenhaver, Bell Assoc., M.D.'s, P.A., 104F.3d 1256, 1263 (11th Cir. 1997) ("[T]he ultimate conclusion reached by our holding that whether or not one is an `employer' is an element of a [discrimination] claim, is the belief that the jury, rather than the judge, should decide the disputed question."); Herr v. Heiman, 75 F.3d 1509, 1513 (10th Cir. 1996) (noting, in ERISA context, that "[w]hether an individual is an employee or an independent contractor is generally a question of fact for the jury to decide"). Others have appeared to assume the appropriateness of submitting the question to the jury without deciding it. See Worth v. Tyer, 276 F.3d 249, 263-64 (7th Cir. 2001) (holding, in Title VII context, that "there was sufficient evidence for the jury to conclude that Worth was an employee"); cf. MacLean Associates, Inc. v. Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 777 (3d Cir. 1991) (finding jury issue in the copyright context). But see Schwieger v. Farm Bureau Ins. Co. of NE, 207 F.3d 480, 484-85 (8th Cir. 2000) (appearing to assume that the question is a threshold matter for the court to decide).
III. Salamon's Sibley Claim
Salamon also alleges that even if she did not have an employment relationship with defendants, they interfered with her potential employment relationships with patients by ceasing to refer them to her. She relies on Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir 1973), in which the D.C. Circuit held that, because the purpose of Title VII is to "achieve equality of employment opportunities," a party can violate Title VII by acting so as to interfere with "access to the job market" without being an employer. 488 F. 2d at 1340, 1341.
This claim is distinct from her state tortious interference claim, the merits of which are not at issue on appeal.
In Sibley, defendant Sibley Hospital mediated between duty nurses and patients, taking patient requests and referring nurses accordingly. Plaintiff Wilson, a male nurse, was a member of Sibley's registry. Id. at 1339. When Wilson's name came up for a female patient, Sibley would allegedly reject him in favor of a female nurse, even though the female patients had not requested female nurses. Id. at 1340. Likewise, Salamon argues that OLV acted as a necessary intermediary between Salamon and her potential patients. By interfering with Salamon's access to such patients, as well as interfering with her employment opportunities at other hospitals, OLV violated her Title VII rights under Sibley.
Salamon also argues that the fallout from the defendants' actions damaged her relationships with other hospitals, relationships which were potential employment opportunities. The district court held that the plaintiff did not "allege an injury-in-fact." Order at 11. The degree to which the plaintiff contests this on appeal is unclear. See Pl. Br. at 32. Because that issue is not substantially addressed, we do not reach it on this appeal. We do note, however, that the same conduct may be substantially covered by Salamon's surviving pendent claim of tortious interference with business relationships.
The district court rejected the Sibley claim because it concluded, as a matter of law, that a plaintiff's relationship with her patients is not an employee-employer relationship. We agree.
We note first that this Circuit has not expressly adopted Sibley. Before Darden, we suggested that we might recognize the Sibley cause of action in appropriate cases. See Spirt v. Teachers Ins. Annuity Ass'n, 691 F.2d 1054, 1063 (2d Cir. 1982), vac'd and remanded on other grounds, 463 U.S. 1223 (1983), reinstated with modifications, 735 F.2d 23, 28-29 (2d Cir. 1984). More recently, however, we have expressed doubt as to the expansiveness of Sibley and Spirt. See Gulino v. New York State Educ. Dept., 460 F.3d 361, 373-77 (2d Cir. 2006). Since the Title VII claim in Gulino was ultimately dismissed on other grounds, the question remains open in this Circuit.
Nevertheless, we need not decide the viability of Sibley here for the reasons noted by the district court. The relationships OLV allegedly interfered with, Salamon's relationships with potential patients, are not "employment" relationships within the scope of Sibley. They fail to meet the common-law definition of employment:
[P]atients d[o] not control the manner and means of [the doctor's] professional treatment. . . . Further, patients do not furnish the equipment, instruments, supplies, and support staff used in a physician's rendition of medical care. Payment is for services rendered, not on-going compensation. Additionally, a physician provides care for numerous patients within a short period of time.
Diggs, 847 F.2d at 274; see also Alexander, 101 F.3d at 493 n. 2 (a physician "is also not an employee of his patients, just as an insurance agent or limousine driver is not an employee of her customers"); Bender v. Suburban Hosp., 159 F.3d 186, 190 (4th Cir. 1998) ("A patient is a doctor's customer, not his employer."); Beverly v. Douglas, 591 F. Supp. 1321, 1328 (S.D.N.Y. 1984). In addition, patients are not "in business;" they do not control the doctor's hours or staff, nor do they retain the right to assign additional projects to the doctor.
Sibley itself did not address the question of whether patients are "employers" of doctors. The D.C. Circuit merely reversed a grant of summary judgment, leaving further fact-finding to the trial court. See Sibley, 488 F.2d at 1343-44. But a D.C. district court, later considering a Sibley interference argument in a staff physician case with similar facts to Salamon's, held that "[plaintiff doctor]'s relationship with his patients is not one of employment . . the relationship between physician and patient is more aptly characterized as an independent contractor relationship." Johnson v. Greater Southeast Community Hospital Corp., 903 F.Supp. 140, 155 (D.D.C. 1995).
Accordingly, we affirm the district court's grant of summary judgment on the Sibley claim.
IV. Salamon's Pendent State Claims
Salamon further argues that the district court abused its discretion when it declined to exercise supplemental jurisdiction over her state claims of tortious interference with business relationships after dismissing her federal claim. Since we reverse the grant of summary judgment that disposed of Salamon's federal claims, we vacate the grant of summary judgment on this issue.
CONCLUSION
For the foregoing reasons, we VACATE the grant of summary judgment to defendant-appellees, and REMAND for a trial on Salamon's Title VII and NYHRL claims.