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
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
"Whether and, if so, to what extent the organization
supervises the individual's work"
"Whether the individual reports to someone higher in
"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
"Whether the individual shares in the profits,
losses, and liabilities of the organization."
Id. at 1680 (quoting 2 Equal Employment Opportunity Commission,
Compliance Manual § 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,
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