The opinion of the court was delivered by: Howard G. Munson, Sr. J.
MEMORANDUM DECISION AND ORDER
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., ("the Group") and against plaintiff Stewart J. Rodal. The complaint alleges violations of the American with Disabilities Act, 42 U.S.C. §12101, et seq. ("the ADA"), supplemental jurisdiction is also invoked under 28 U.S.C. § 1367.
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 proceedings 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 15 or more employees. Currently pending before the court, is defendant's supplemental motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has enter opposition thereto. After a conference with the respective parties, the court ruled in its order of July 8, 2005, that the extensive discovery that had taken place in this case prior to defendant's first summary judgment motion had adequately covered the subject matter required for ascertaining plaintiff's employment status in defendant's renewed summary judgment motion. Therefore, reopening discovery in this case was unnecessary.
The standard for summary judgment is well defined. "Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As a general rule, all ambiguities and inferences drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party. However, "where the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir.1991). In order to obtain summary judgment relief, the moving party need not prove that his opponent's case is wholly frivolous. When a defendant has moved for summary judgment on the ground that undisputed facts reveal that the plaintiff cannot establish an essential element of the claim, on which element the plaintiff has the burden of proof, and the plaintiff has failed to come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on that element, summary judgment should be granted. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L. Ed.2d.2d 202 (1986). If the undisputed facts reveal that there is an absence of sufficient proof as to one essential element of the claim, any factual disputes with respect to other elements of the claim become immaterial and cannot defeat a motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. at 322-23, 106 S. Ct. at 2552; Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11-12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L .Ed.2d 762 (1987); Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985) (per curiam); Duse v. International Business Machine Corporation, 252 F.3d 141, 158 (2d Cir. 2001).
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 § 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)).
The six factors were selected because they provided guidance in resolving the more
general issue of whether an individual "is an employee or, alternatively, the kind of person that the common law would consider an employer." Id. at 445 n. 5, 123 S. Ct.1673. Indeed, the source of the factors--an EEOC compliance manual--identifies them as relevant to whether "partners, officers, members of boards of directors, and major shareholders qualify as employees." Id. ...