Employment Status and Your Federal Age Discrimination Case

A surgeon who sued a hospital after the hospital revoked the doctor’s surgical privileges when the surgeon turned 70 never got the chance to prove the existence of age-based discrimination. Whether or not the hospital made its decision based upon age, the surgeon could not succeed on his Age Discrimination in Employment Act claim. The trial court and the 11th Circuit Court of Appeals both concluded that the doctor failed to show that the relationship between the hospital and surgeon was one of employer-employee, not employer-independent contractor. Since independent contractors cannot pursue ADEA claims, the doctor’s case failed.

Moshe Ashkenazi was a surgeon who provided on-call services at the South Broward Hospital District. After the hospital revoked his privileges, the doctor sued. The septuagenarian surgeon claimed that the decision to revoke his privileges was the result of age discrimination. The hospital asked for summary judgment in the case. Ashkenazi, it argued, could not mount a successful age discrimination case because he was an independent contractor, not an employee of the hospital. The trial court agreed and ruled for the hospital.

The 11th Circuit affirmed that decision in favor of the hospital. To be entitled to sue, and to obtain a judgment, under the ADEA, the victim of discrimination must be an employee of that employer. The statute is not specific regarding who does or does not qualify as an employee under the law. It only says that an employee is “an individual employed by any employer.” There are multiple different standards the courts have used to decide if someone is an employee under the ADEA. Unfortunately for the surgeon, the hospital did not assert the level of control over Ashkenazi to constitute an employer-employee relationship under any of the standards.

The surgeon’s contract with the hospital said that he was an independent contractor. This, by itself, is necessarily not enough to resolve whether or not the surgeon was a hospital employee. However, in Ashkenazi’s situation, he had his own corporation through which he operated his private medical practice. The surgeon saw patients at an office owned by that corporation. Ashkenazi’s patients and their insurance companies paid the surgeon’s corporation for the surgeon’s services. Additionally, the surgeon received a flat rate, not an hourly one, for his work done at the hospital. Ashkenazi also had flexibility regarding when and where he worked. In sum, the hospital did not maintain the degree of control needed to make the surgeon an employee.

A successful age discrimination case is about more than just an instance (or instances) of age-related mistreatment. It also requires proving other elements, like the existence of an employer-employee relationship. Whether you’re a Georgia employer or an employee, experienced legal counsel can help you with your case. The Georgia age discrimination attorneys at Parks, Chesin & Walbert have many years of experience representing clients with issues much like your own, and we can help you as you go forward with your case.

To speak with one of our lawyers about your case, call 404-873-8048.

More blog posts:

Eleventh Circuit Decides Employer Lacked Knowledge of Employee’s Disability, Atlanta Employment Attorneys Blog, Aug. 5, 2015

Eleventh Circuit Affirms Dismissal of Georgia Employee’s Race and Age Discrimination Claims, Atlanta Employment Attorneys Blog, March 11, 2015

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