Shrock v. Altru Nurses Registry

• Decision Date: 20 January 1987
• Docket Number: 86-1161,Nos. 85-2850,s. 85-2850
• Citation: 810 F.2d 658
• Parties: 42 Fair Empl.Prac.Cas. 1393, 42 Empl. Prac. Dec. P 36,758, 7 Fed.R.Serv.3d 93 Cecil C. SHROCK, Plaintiff-Appellant/Cross-Appellee, v. ALTRU NURSES REGISTRY, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 658

810 F.2d 658

42 Fair Empl.Prac.Cas. 1393,

42 Empl. Prac. Dec. P 36,758, 7 Fed.R.Serv.3d 93

Cecil C. SHROCK, Plaintiff-Appellant/Cross-Appellee, v. ALTRU NURSES REGISTRY, Defendant-Appellee/Cross-Appellant.

Nos. 85-2850, 86-1161.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 20, 1986.

Decided Jan. 20, 1987.

Keith C. Hult, Matkov, Griffin, Parsons, Salzman & Madoff, Donna M. Banik, Chicago, Ill., for defendant-appellee/cross-appellant.

Cecil C. Shrock, pro se.

Before POSNER and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.

POSNER, Circuit Judge.

Shrock is a male nurse; Altru is a business which refers nurses registered with it to persons needing a nurse. In 1979 Shrock filed charges with the EEOC, followed later by a suit under Title VII, alleging that Altru was refusing to refer male nurses to female patients. The suit was dismissed on August 26, 1983, pursuant to a settlement between Shrock and Altru. Two and a half weeks later Shrock filed new charges with the EEOC, again followed by a suit, charging that beginning the day after the settlement of the previous suit Altru had again discriminated against him. How he knew this is unclear. The result of the settlement had been to put him back on the registry, but at the bottom, so unless Altru in two and a half weeks had a lot of inquiries from female patients, it might have made no referrals to him even with the best will in the world. In any event the new suit was dismissed on Altru's motion for summary judgment, Judge McMillen stating, "This is a pro se complaint which should never have been filed, and defendant is probably entitled to attorney's fees under 42 U.S.C. Sec. 1988." Altru moved for an award of attorney's fees, but by then Judge McMillen had resigned from the bench, and the case was assigned to Judge Plunkett, who denied the motion without any statement of reasons. Shrock appeals from the dismissal of his suit and Altru cross-appeals from the denial of its motion for an award of attorney's fees.

Unless Altru in 1983 was an employer, an employment agency, or a labor union, it cannot be liable to Shrock under Title VII. See 42 U.S.C. Secs. 2000e-2, e-3. Of course it was not a labor union. And it was neither Shrock's employer--he, clearly, was an independent contractor--nor the employer of the other nurses registered with it, and with all these excluded Altru did not have enough employees to be an employer in the special sense in which Title VII uses this word. See 42 U.S.C. Sec. 2000e(b). We therefore need not decide when, if ever, an employer covered by the statute can be held liable for conduct toward someone who is not its employee; but we note in passing that Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), and Doe v. St. Joseph's Hospital, 788 F.2d 411, 421-25 (7th Cir.1986), cases which support liability for interference by hospitals on grounds of sex (or other grounds deemed discriminatory by Title VII) with their patients' retaining a nurse or doctor, are distinguishable. They involve an indirect employer-employee relationship between the hospital and the nurse (or doctor); there is no such relationship between a referral agency and the workers it refers.

That leaves the question whether Altru was an employment agency. It was if it "regularly [undertook] ... to procure employees for an employer or to procure for employees opportunities to work for an employer." 42 U.S.C. Sec. 2000e(c) (emphasis added). The reference is to the statutory definition of employer. Since--according to affidavits that Shrock failed to rebut in the manner prescribed by Fed.R.Civ.P. 56--Altru refers nurses only to individual patients and to persons (mainly doctors) acting on behalf of individual patients, and since neither patient nor doctor is a Title VII employer, the district court was unquestionably correct in granting Altru's motion for summary judgment and dismissing the complaint.

We turn to the cross-appeal. In light of Judge McMillen's statement that Altru was probably entitled to an award of attorney's fees (not under 42 U.S.C. Sec. 1988, though, for that statute does not apply to Title VII, but under 42 U.S.C. Sec. 2000e-5(k), a materially identical provision), Judge Plunkett's action in denying, without any statement of reasons, the modest award requested ($2,524.50) puzzles us. The fact that Shrock was a Title VII plaintiff would not automatically disentitle Altru to an award of attorney's fees; a defendant in a Title VII suit is entitled to such an award if the plaintiff's suit is "frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978); see Bacon v. American Federation of State, County & Municipal Employees Council, # 13, 795 F.2d 33 (7th Cir.1986). Nor would the fact that Shrock was not represented by counsel disentitle Altru to an award of attorney's fees (see id.)--though as a matter of fact he was represented by counsel throughout most of the district court proceeding, and his reply to the request for attorney's fees was prepared by counsel.

What is true, however, is that this suit is not frivolous in the traditional sense of making an utterly groundless claim. Maybe Altru did discriminate against Shrock; and Sibley and Doe gave him a shot at bringing Altru within the jurisdiction of the statute as an employer if Altru turned out to have enough employees, while if Altru referred nurses to hospitals or doctors seeking...