Bluestein v. Cent. Wis. Anesthesiology, S.C., s. 13–3724
| Decision Date | 15 October 2014 |
| Docket Number | 14–1257.,14–1256,Nos. 13–3724,s. 13–3724 |
| Citation | 769 F.3d 944,30 A.D. Cases 1293 |
| Parties | Linda BLUESTEIN, M.D., Plaintiff–Appellant, v. CENTRAL WISCONSIN ANESTHESIOLOGY, S.C., Defendant–Appellee. and Appeal of Janet L. Heins, Attorney. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Janet L. Heins, Attorney, Heins & Minko LLC, Mequon, WI, for Plaintiff–Appellant.
Edward Everett Robinson, Attorney, Cannon & Dunphy, Brookfield, WI, for Defendant–Appellee.
Before FLAUM, KANNE, and ROVNER, Circuit Judges.
Linda Bluestein, M.D., sued Central Wisconsin Anesthesiology, S.C. (“Central Wisconsin”), for discrimination in violation of the Americans With Disabilities Act, 42 U.S.C. §§ 12101 et seq.; the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq.; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court concluded that Bluestein, a full partner, shareholder, and member of the board of directors of Central Wisconsin, was an employer rather than an employee at the service corporation, and was thus ineligible for the protections of those statutes. The court also found that Bluestein's claims would fail as a matter of law on the merits, and so the court granted summary judgment in favor of Central Wisconsin. The court also ordered Bluestein and her attorney, Janet L. Heins, to pay attorneys' fees to Central Wisconsin for pursuing a frivolous lawsuit, pursuant to 42 U.S.C. § 2000e–5(k). Bluestein appeals the summary judgment in favor of Central Wisconsin. Bluestein and Heins appeal the award of attorneys' fees. Central Wisconsin also seeks attorneys' fees and costs pursuant to Federal Rule of Appellate Procedure 38 for defending this appeal. We affirm the judgment and the award of fees in the district court. We decline to award additional attorneys' fees.
Central Wisconsin is a service corporation organized under Wisconsin law to engage in the practice of providing anesthesia services. See Wis. Stat. §§ 180.1901 –180.1921. Bluestein is an anesthesiologist who began working for Central Wisconsin in 1996 on a part-time basis. Her initial employment agreement identified her as an employee, and she worked in that capacity for approximately two and a half years. As of January 1, 1999, Bluestein became a full partner of Central Wisconsin as well as a shareholder and member of the board of directors, which is comprised of all of the physician-shareholders. As a shareholder, she had a vote on all matters coming before the board. After a June 1999 board vote, Bluestein began receiving a quarterly distribution equal to that of the other shareholders. In 2000, she was elected to the position of secretary-treasurer of the board, a post she held for approximately three years. From 2007 to 2010, she served as the chair of the compliance committee of the board.
The corporation was organized so that the physician-shareholders shared profits and losses equally.1 Board- and committee-approved policies applied uniformly to all of the shareholders and covered everything from compensation to vacation. Corporate bylaws provided when and how board meetings were to be conducted. Most issues affecting the shareholders were resolved by a majority vote. For example, when Bluestein wished to change her part-time status from 80% to 90% in 2004, that change required approval from a majority of the board. Bluestein participated in many meetings where key company issues were decided by a majority vote, including setting wage increases for non-physician staff, setting anesthesia fees and policies, changing office computer technology, changing the shareholders' deferred compensation and increasing paid vacation for the shareholders from ten weeks to twelve weeks per year.
In the fall of 2009, Bluestein sustained injuries in a kayak accident. She developed ischiogluteal bursitis
, proximal hamstring tendinopathy, sciatica and sacral nerve root cyst. These conditions made it difficult for her to complete her work as an anesthesiologist. Over the next several months, she intermittently took approved time off to rest and recover but she did not heal enough to return to work at full strength. In August 2010, she sent her partners a letter setting forth her status:
. I truly apologize for any and all inconveniences that my disabled condition has caused you.
Thank you for your understanding and patience. I hope to return to work soon.
R. 45–33. After requesting this open-ended leave from her fellow physician-shareholders, the board voted to deny the request. The board then held a second vote, presenting shareholders with two additional options. The first would have granted Bluestein a four-month leave of absence on the condition that she would be terminated if she could not perform her duties as an anesthesiologist without restriction upon her return. Under the second option, Bluestein would be allowed to resign as of August 31, 2010, but would be terminated if her letter of resignation was not received by September 16, 2010. Four shareholders voted in favor of the four-month leave and twelve chose the latter option. When Bluestein did not resign by September 16, 2010, she was terminated the next day. Shortly thereafter, the board voted to give Bluestein her deferred compensation as calculated by the firm's deferred compensation formula.
Bluestein sued Central Wisconsin for violations of the Americans With Disabilities Act (“ADA”), the Rehabilitation Act and Title VII. The district court granted Central Wisconsin's motion for summary judgment on multiple grounds. First, the court concluded that Bluestein was an employer at Central Wisconsin rather than an employee, and thus was not entitled to the protection of the statutes at issue. Although that conclusion was fatal to all of Bluestein's claims, the court also considered each discrimination claim on its merits. The court rejected Bluestein's ADA claim because she had produced no evidence to demonstrate that she had a substantial limitation in any major life activity and thus was not disabled as that term is defined by the statute. Moreover, she had notified her colleagues that she was unable to perform the essential functions of her job and therefore was not a qualified individual with a disability unless there was a reasonable accommodation that would allow her to fulfill her job duties. The court found that she failed to demonstrate that a four-month leave would have enabled her to return to work and that the open-ended leave request was unreasonable as a matter of law. The court similarly concluded that her claim of sex discrimination failed because she produced no evidence that the disabled male colleague to whom she compared herself was similarly situated. The court summarily rejected the Rehabilitation Act claim because Bluestein lacked evidence that Central Wisconsin receives federal financial assistance, a requirement for recovery under that statute. In response to Central Wisconsin's motion for attorneys' fees, the court agreed that Bluestein's lawsuit was “frivolous, unreasonable and without foundation.” Bluestein v. Central Wisconsin Anesthesiology, S.C., 2014 WL 61157, *2 (W.D.Wis. Jan. 8, 2014). Acknowledging that an award of fees should be rare in discrimination cases, the court nevertheless concluded that fees were appropriate in this case because “a reasonable amount of legal research should have alerted counsel to the implausibility of success on any of plaintiff's claims of discrimination.” Id. The court found that it was unreasonable for Bluestein to think that she could prevail on “clearly frivolous claims of discrimination” because she should have known she was not an “employee” of Central Wisconsin and because she had admitted to her colleagues that she could not perform the essential functions of her job. Id. The court therefore ordered Bluestein and her attorney to pay Central Wisconsin's attorneys' fees. Bluestein and her counsel appeal.
On appeal, Bluestein contends that she was an employee for the purposes of the statutes at issue. She also maintains that she has raised genuine issues of material fact regarding her disability and sex discrimination claims. Finally, she asserts that the district court abused its discretion in awarding attorneys' fees to the defendant. We review the district court's grant of summary judgment de novo, examining the record in the light most favorable to Bluestein and construing all reasonable inferences from the evidence in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Naficy v. Illinois Dep't of Human Servs., 697 F.3d 504, 509 (7th Cir.2012) ; Norman–Nunnery v. Madison Area Technical Coll., 625 F.3d 422, 428 (7th Cir.2010). Summary judgment is appropriate when there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ. P. 56(a) ; Naficy, 697 F.3d at 509. Central Wisconsin sought and was granted fees as a prevailing party pursuant to 42 U.S.C. § 2000e–5(k)2 We review the district court's grant of attorneys' fees under that provision for abuse of discretion. Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) ; Munson v. Milwaukee Bd. of School...
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