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United States District Court, N.D. New York

July 8, 2005.

STEWART J. RODAL, Plaintiff,

The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge


In a Memorandum Decision and Order dated May 18, 2003, this court granted summary judgment in favor of defendant Anesthesia Group of Onondaga, P.C., and against plaintiff Stewart J. Rodal.

  Plaintiff appealed this result, and in Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113 (2d Cir. 2004), the Second Circuit Court of Appeals reversed the decision and remanded the case to this court for further proceeding consistent with its opinion, including further consideration of Dr. Rodal's status as a group employee in light of the Supreme Court's decision in Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 123 S. Ct. 1673, 155 L.Ed.2d 615 (2003). The opinion further advised, that on remand, the district court may reopen discovery or take whatever steps it deems appropriate to determine this issue.

  Plaintiff is an anesthesiologist. Defendant is a professional corporation which provides anesthesia services and which consists of shareholder-employees, all of whom are anesthesiologists, and other non-shareholder-employees, consisting of both doctors and other staff.

  At issue in Clackamas was whether four physicians actively engaged in medical practice as shareholders and directors of a professional corporation were employees under the Americans with Disabilities Act, which employs the same definition of employee as Title VII and similarly limits its applicability to employers with more than 15 employees. After acknowledging that there was no such thing as a "professional corporation" at common law, the Supreme Court concluded that "the common law's definition of the master-servant relationship does provide helpful guidance." Clackamas, 538 U.S. at 448, 123 S.Ct. at 1679. The Court determined that "the common-law element of control is the principal guidepost that should be followed[.]" Id.

  The Supreme Court held that each of the following six factors, drawn from the Equal Employment Opportunity Commission Compliance Manual, is relevant: "Whether the organization can hire or fire the individual or set the rules and regulations of the individual's work"


"Whether and, if so, to what extent the organization supervises the individual's work"
"Whether the individual reports to someone higher in the organization"
"Whether and, if so, to what extent the individual is able to influence the organization"
"Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts"
"Whether the individual shares in the profits, losses, and liabilities of the organization."
Id. at 1680 (quoting 2 Equal Employment Opportunity Commission, Compliance Manual ยง 605:0009 (2000)). Id.

  The Court made clear that the six-factor list is not exhaustive and that courts should take into consideration all incidents of the employment relationship. Moreover, no one factor, such as the individual's title or the terms of any written contract, is decisive. The answer to whether a shareholder-director is an employee or an employer cannot be decided in every case by a "`shorthand formula or magic phrase.'" Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 324, 112 S.Ct. 1344, 117 L. Ed.2d 581 (1992) (quoting, 390 U.S. 254, 258, 88 S.Ct. 988, 19 L. Ed.2d 1083 (1968)).

  Currently pending before the court, is defendant's renewed motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

  The extensive discovery that has taken place in this case prior to defendant's first summary judgment motion has adequately covered the subject matter required for ascertaining plaintiff's employment status in a renewed summary judgment motion. Therefore, the court finds that reopening discovery in this case is unnecessary.

  Accordingly, plaintiff has until August 5, 2005 to file opposition to defendant's pending summary judgment motion, and defendant will file any reply thereto on or before August 26, 2005.



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