Yelena Levitin v. Northwest Community Hospital ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3774
YELENA LEVITIN and
CHICAGO SURGICAL CLINIC, LTD.,
Plaintiffs-Appellants,
v.
NORTHWEST COMMUNITY HOSPITAL, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 5553 — Gary Feinerman, Judge.
____________________
ARGUED DECEMBER 3, 2018 — DECIDED MAY 8, 2019
____________________
Before SYKES, BARRETT, and ST. EVE, Circuit Judges.
SYKES, Circuit Judge. For nearly thirteen years, Dr. Yelena
Levitin performed surgeries at Northwest Community
Hospital in Arlington Heights, Illinois. In January 2013 the
hospital terminated her practice privileges. She brought this
Title VII suit claiming that Northwest discriminated against
her based on her sex, religion (Jewish), and ethnicity
(Russian). The hospital responded that Levitin wasn’t its
2 No. 16-3774
employee, precluding her Title VII claim. The district judge
agreed and entered summary judgment for Northwest.
We affirm. There is no genuine dispute here. Levitin was
an independent physician with practice privileges at the
hospital. She was not the hospital’s employee.
I. Background
Levitin is a female, Jewish surgeon of Russian descent.
She owns and operates Chicago Surgical Clinic, Ltd., a
private medical practice. From 2000 through early 2013, most
of her revenue came from the work she performed at
Northwest, where she maintained practice privileges.
In December 2008 Levitin complained to Northwest that
Dr. Daniel Conway, another surgeon, was harassing her. She
alleges that Conway repeatedly criticized her medical deci-
sions, undermined her in front of her patients, and inter-
rupted one of her surgeries. Northwest reprimanded
Conway, and any direct harassment stopped in January 2009.
But Levitin’s relationship with Northwest and its staff
remained uneasy. At least four doctors filed complaints
concerning her professional judgment. One refused to work
with her entirely. And another, the head of pathology, com-
plained that Levitin habitually requested inappropriate tests
from his department. In response to these complaints,
Dr. William Soper, then the chair of Northwest’s surgery
department, informed Levitin that he would begin proac-
tively reviewing the surgeries she scheduled for potential
issues.
Soper also reviewed Levitin’s prior surgeries. He referred
31 cases to the Medical Executive Committee, which over-
sees physician credentialing at Northwest. The committee
No. 16-3774 3
found that Levitin deviated from the appropriate standard
of care in four of these cases. The committee initially con-
cluded that Levitin should receive quarterly reviews, but it
reconvened following an incident in which Levitin operated
on a patient without proper sedation. This time the commit-
tee voted to terminate her practice privileges.
Levitin viewed the committee proceedings as retaliation
for her complaints against Conway. Alleging as much, she
appealed the committee’s decision through two intermediate
levels of internal review. Her case eventually came before
Northwest’s Board of Directors, which held final authority
over termination decisions. In January 2013 the Board termi-
nated Levitin’s practice privileges.
Seven months later Levitin filed a 14-count federal com-
plaint against Northwest; Drs. Loren, Soper, and Conway;
and Advanced Surgical Associates, S.C. (their practice
group). The sprawling suit raised antitrust claims, state-law
claims, and a claim for employment discrimination based on
sex, religion, and ethnicity in violation of Title VII of the
Civil Rights Act of 1964. The district judge dismissed the
antitrust claims early on but allowed the Title VII and state-
law claims to proceed. At summary judgment the judge
determined that the undisputed evidence showed that
Levitin was not a Northwest employee, which put her
discrimination claim outside of Title VII’s scope. The judge
relinquished supplemental jurisdiction over the state-law
claims and entered final judgment, setting up this appeal,
which concerns only the Title VII claim.
4 No. 16-3774
II. Discussion
We review a summary judgment de novo. Kopplin v. Wisc.
Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir. 2019). Summary
judgment is appropriate when “there is no genuine dispute
as to any material fact and the movant is entitled to judg-
ment as a matter of law.” FED. R. CIV. P. 56(a).
The sole question on appeal is whether Levitin was a
Northwest employee for purposes of Title VII. Because the
statute protects only employees, see 42 U.S.C. § 2000e-3,
Levitin’s discrimination claim turns on this threshold in-
quiry. Title VII does not provide much guidance: It defines
“employee” as “an individual employed by an employer,”
id. § 2000e(f), and an “employer” is simply a “person … who
has fifteen or more employees” for a set period of time, id.
§ 2000e(b). We’ve noted before that these definitions are
“completely circular” and do not meaningfully define
“employee.” Smith v. Castaways Family Diner, 453 F.3d 971,
976 (7th Cir. 2006) (quotation marks omitted).
The inquiry thus rests on agency law, which looks “to the
economic realities of the relationship and the degree of
control the employer exercises over the alleged employee.”
Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380
(7th Cir. 1991) (quotation marks omitted). Relying on agency
principles, we held in Knight that the following factors are
relevant:
(1) the extent of the employer’s control and su-
pervision over the worker, including directions
on scheduling and performance of work;
(2) the kind of occupation and nature of skill
required, including whether skills are obtained
No. 16-3774 5
in the workplace; (3) responsibility for the costs
of operation, such as equipment, supplies, fees,
licenses, workplace, and maintenance of opera-
tions; (4) method and form of payment and
benefits; and (5) length of job commitment
and/or expectations.
Id. at 378–39. “[T]he employer’s right to control is the most
important” of these factors. Id. at 378.
Applying the Knight factors, we have repeatedly held
that a physician with hospital practice privileges is not the
hospital’s employee merely because he is subject to peer
review. See Vakharia v. Swedish Covenant Hosp., 190 F.3d 799,
805–06 (7th Cir. 1999); Alexander v. Rush N. Shore Med. Ctr.,
101 F.3d 487, 492–93 (7th Cir. 1996); see also Hojnacki v. Klein-
Acosta, 285 F.3d 544, 552 (7th Cir. 2002). Still, we’ve said that
“it could be argued that a physician who enjoys hospital
staff privileges does, under certain factual situations, share
an indirect employer-employee relationship with the hospi-
tal sufficient to invoke Title VII protection.” Alexander,
101 F.3d at 492. Levitin sees a path to Title VII coverage in
this passing speculation. Not so. In Alexander we ultimately
held that the plaintiff-physician was not a hospital employ-
ee, and Levitin’s case is materially indistinguishable.
Like the plaintiff in Alexander, Levitin owned her own
medical practice, billed her patients directly, and filed taxes
as a self-employed physician. Northwest did not provide
Levitin with employment benefits or pay her professional-
licensing dues. Moreover, Levitin’s work agreement with
Northwest confirms her independence. She could set her
own hours, subject only to operating-room availability; she
could obtain practice privileges at other hospitals and redi-
6 No. 16-3774
rect her patients to those locations; and she could use her
own staff in surgeries. Most importantly, she made the
treatment decisions for her patients.
To be sure, Northwest placed certain restrictions on
Levitin. But they were no more onerous than those in
Alexander, which involved nearly identical on-call demands,
medical-education standards, peer-review processes, and
reporting requirements. Indeed, we have rejected claims of
employment when physicians had even less flexibility. See id.
at 493 (plaintiff couldn’t use his own staff and the hospital
assigned most patients); Vakharia, 190 F.3d at 805 (plaintiff
couldn’t associate with other hospitals); Hojnacki, 285 F.3d at
551 (administrators told plaintiff “how often to perform
physical examinations” and “what kind of questions to
ask”). “For an employer-employee relationship to exist, …
the employer must have ‘the right to control and direct the
work of an individual, not only as to the result to be
achieved, but also as to the details by which that result is
achieved … .’” Hojnacki, 285 F.3d at 551 (quoting Alexander,
101 F.3d at 493). Northwest exercised no such control over
Levitin.
Perhaps recognizing the obvious similarities of her case
with Alexander, Levitin argues that her evidence that
Northwest’s peer-review proceedings were discriminatory as
to her creates a factual dispute over her employee status. As
she sees it, when peer-review inquiries “go beyond merely
adhering to professional and regulatory standards,” they can
generate enough control to create an employer-employee
relationship. She maintains that if Northwest’s peer-review
proceeding against her was a retaliatory sham, then it neces-
No. 16-3774 7
sarily exceeded those standards and could create an em-
ployment relationship.
There’s no support for this novel theory. As a threshold
matter, it’s unclear that a particular peer-review proceeding
has any relevance to the Knight factors. The most important
factor for determining employment status is an “employer’s
right to control.” Knight, 950 F.2d at 378. The right to control
an employee generally comes from contractual and other
workplace terms that govern the parties’ relationship, not an
isolated peer-review proceeding. See NLRB v. Sachs, 503 F.2d
1229, 1233 (7th Cir. 1974) (“It is, of course, the right to control
and not the actual exercise of that right which is the decisive
element.”). In Vakharia, for example, we rejected a physician’s
claim that a hospital exerted control through sham peer-
review proceedings because the terms of the parties’ agree-
ment contemplated an independent-contractor relationship.
190 F.3d at 805–06; see also Alexander, 101 F.3d at 493 (focus-
ing the right-to-control analysis on the formal terms govern-
ing the physician-hospital relationship); Shah v. Deaconess
Hosp., 355 F.3d 496, 500 (6th Cir. 2004) (holding that enforc-
ing a standard of care “after the fact, through the peer
review process,” is not indicative of control for Title VII).
To overcome the force of this contrary precedent, Levitin
relies heavily on the Second Circuit’s decision in Salamon v.
Our Lady of Victory Hospital, 514 F.3d 217 (2d Cir. 2008). There
the court allowed a Title VII case to proceed where the
plaintiff-physician claimed that the hospital peer-review
committee retaliated against her for complaining about
sexual harassment by subjecting her to an onerous “quality
assurance program.” Id. at 222–25. The plaintiff character-
ized the program as a system of “continuing surveillance”
8 No. 16-3774
and a “reeducation program” that gave the hospital control
over all of her treatment decisions. Id. at 229–31.
Nothing similar happened here. In any event, Alexander
is the controlling precedent in our circuit, and Levitin has
not meaningfully distinguished her case from it. Moreover,
under Knight it’s irrelevant whether a peer-review proceed-
ing falls short of, meets, or exceeds the requirements of
professional or regulatory standards. Compliance with
regulatory or statutory requirements does not establish
control for Title VII purposes. See EEOC v. N. Knox Sch. Corp.,
154 F.3d 744, 748 (7th Cir. 1998) (“[S]tate regulations reflect
no ‘control’ by … the putative employer here.”).
So we return to where we started: Levitin’s case is mate-
rially indistinguishable from Alexander. She was not an
employee of Northwest, which precludes her Title VII claim.
Accordingly, the judgment of the district court is
AFFIRMED.