Bowling v. Stamford Anesthesiology Services, P.C.

Filing 258

ORDER: As set forth in the attached document, the Defendant's Motion for Summary Judgment (ECF No. 207 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 8/24/2020. (Clough, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------- x
THERESA BOWLING, M.D.,
:
:
Plaintiff,
:
:
v.
:
:
STAMFORD ANESTHESIOLOGY
:
SERVICES, P.C.,
:
:
Defendant.
:
-------------------------------- x

Civil No. 3:17-cv-642(AWT)

ORDER RE MOTION FOR SUMMARY JUDGMENT
The Defendant’s Motion for Summary Judgment (ECF No. 207)
is hereby DENIED.
Summary judgment is appropriate only when there are no
genuine issues of material fact and the moving party is entitled
to judgment as a matter of law.

In ruling on a summary judgment

motion, the district court must “resolve all ambiguities, and
credit all factual inferences that could rationally be drawn, in
favor of the party opposing summary judgment” and determine
whether there is a genuine dispute as to a material fact,
raising an issue for trial.

Kessler v. Westchester Cty. Dep’t

of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006) (quoting Cifra
v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)).

A fact is

“material” when it “might affect the outcome of the suit under
governing law.”

Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d

Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
Theresa Bowling, M.D., brings claims against Stamford
Anesthesiology Services, P.C. (“SAS”), for disability
discrimination in violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12112(a), and the Connecticut Fair
Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60.
She also brings claims for retaliatory discharge in violation of
the ADA, 42 U.S.C. § 12203, and the CFEPA, Conn. Gen. Stat.
§ 46a-60(b)(4).

The analysis with respect to the ADA claims and

the CFEPA claims is the same.

See Curry v. Allan S. Goodman,

Inc., 286 Conn. 390, 407 (2008) (“Connecticut antidiscrimination
statutes should be interpreted in accordance with federal
antidiscrimination laws.”).
To establish a prima facie case for the disability
discrimination claims, Bowling is required to show: “(1) [her]
employer is subject to the ADA; (2) [she] was disabled within
the meaning of the ADA; (3) [she] was otherwise qualified to
perform the essential functions of [her] job, with or without
reasonable accommodation; and (4) [she] suffered adverse
employment action because of [her] disability.”

Fox v. Costco

Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (quoting
McMillan v. City of N.Y., 711 F.3d 120, 125 (2d Cir. 2013)).
establish a prima facie case for the retaliatory discharge

-2-

To

claims, Bowling must show: “(1) [she] was engaged in an activity
protected by the ADA, (2) [SAS] was aware of that activity, (3)
an employment action adverse to [her] occurred, and (4) there
existed a causal connection between the protected activity and
the adverse employment action.”

Weissman v. Dawn Joy Fashions,

Inc., 214 F.3d 224, 234 (2d Cir. 2000) (quoting Sarno v. Douglas
Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)).
With respect to all claims, Bowling must also show that she was
an “employee” of SAS within the meaning of the ADA.

See 42

U.S.C. §§ 12111(8), 12112(a).
A.

Whether Bowling was an employee

SAS argues that Bowling was not an employee of SAS for
purposes of the ADA because she was a shareholder of the
professional corporation.

Determining whether an individual is

an employee under the ADA requires the application of the factintensive test set out in Clackamas Gastroenterology Associates
v. Wells, 538 U.S. 440 (2003).

Before stating its conclusion

that “the common-law element of control is the principal
guidepost that should be followed,” id. at 448, the Court
cautioned that “[t]he question whether a shareholder-director is
an employee, however, cannot be answered by asking whether the
shareholder-director appears to be the functional equivalent of
a partner,” id. at 446.

The Court held that the following six

-3-

factors are relevant to determine whether a shareholder-director
is an employee:
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 449-50 (quoting 2 Equal Emp. Opportunity Comm’n,
Compliance Manual § 605.0009).
“[A]n employer is the person, or group of persons, who owns
and manages the enterprise.”

Id. at 450.

The employer can hire and fire employees, can assign
tasks to employees and supervise their performance,
and can decide how the profits and losses of the
business are to be distributed. The mere fact that a
person has a particular title--such as partner,
director, or vice president--should not necessarily be
used to determine whether he or she is an employee or
a proprietor. . . . Nor should the mere existence of
a document styled “employment agreement” lead
inexorably to the conclusion that either party is an
employee. . . . Rather, as was true in applying
common-law rules to the independent-contractor-versusemployee issue confronted in Darden, the answer to
whether a shareholder-director is an employee depends
on “all of the incidents of the relationship . . .
with no one factor being decisive.”

-4-

Id. at 450-51 (citations omitted) (quoting Nationwide Mut. Ins.
Co. v. Darden, 503 U.S. 318, 324 (1992)).

Also, it should be

kept in mind that a person can be an employee for purposes of
one statute but not for purposes of another.

See id. at 453

(Ginsburg, J., dissenting).
Although it is true, as SAS argues, that the question of
whether Bowling was an employee under the ADA is one of law and
not fact, the question must be decided at summary judgment based
on only undisputed facts.

See Bluestein v. Cent. Wis.

Anesthesiology, S.C., 769 F.3d 944, 953 (7th Cir. 2014) (“the
question for [the plaintiff] is whether she raised a genuine
issue of material fact on the issue of her status as an
employee”); Mann v. Est. of Meyers, 61 F. Supp. 3d 508, 531
(D.N.J. 2014) (applying the Clackamas test and concluding that
the court “cannot find, on summary judgment, that [the
plaintiff] is not an employee” because of “issues of fact . . .
[that] remain highly relevant”).
Here, Bowling has created genuine issues of material fact
with respect to whether she was an employee for purposes of the
ADA.

First, Bowling has created a genuine issue of fact as to

whether she was able to influence the organization.

For

example, there are issues as to whether Bowling was provided
with notice of all shareholder meetings while she was on medical
leave, (see Theresa Bowling, M.D.’s, Local Rule 56(a)(2)

-5-

Statement of Facts (“Bowling 56(a)(2) Statement”), ECF No. 238,
Ex. 13, at 40:9-41:16) (Dr. Robustelli testifying that she
organized a meeting with all Class A shareholders except
Bowling)); as to whether Bowling was afforded any opportunity to
influence or participate in the decision regarding whether she
would be reimbursed for her attorneys’ fees under the By-Laws,
(see Aff. of Theresa Bowling M.D. Supp. Opp’n Summ. J. ¶ 27, ECF
No. 51); and as to whether SAS refused to provide her with
information regarding the financial status of the business or
business affairs, (see id. ¶ 17; Aff. of Theresa Bowling, M.D.
Supp. March 18, 2020 Opp’n Summ. J. (“2020 Bowling Aff.”), ECF
No. 236, Ex. I, at 1 (“she can’t have our financial information
which will not do her any good”)).
Second, Bowling has created a genuine issue as to whether
she shared in SAS’s profits in 2016 because Dr. Finkel testified
that although Form K-1 profit distributions were not paid to any
shareholders in 2016, the Form W-2 income of the partners
working during 2016 was correspondingly higher due to the lack
of profit distributions.

(Pl.’s Local Rule 56(a)(2) Statement

of Facts, ECF No. 50, Ex. 1, at 179:17-42.)
Moreover, SAS’s shareholders recognized the distinction
between Bowling’s status as a shareholder and her status as an
employee.

(See 2020 Bowling Aff. Ex. H, at 1 (“Her status as a

-6-

shareholder should not be protected by Haven only her
employment.”).)
B.

Whether Bowling was qualified to perform the essential
functions with or without reasonable accommodation

SAS argues that Bowling was not qualified to perform the
essential functions of the position with or without reasonable
accommodation.

Determination of whether a job function is

essential requires “a fact-specific inquiry into both the
employer’s description of a job and how the job is actually
performed in practice.”

McMillan, 711 F.3d at 126.

Considerations include “the employer’s judgment, written job
descriptions, the amount of time spent on the job performing the
function, the mention of the function in a collective bargaining
agreement, the work experience of past employees in the
position, and the work experience of current employees in
similar positions.”

Stevens v. Rite Aid Corp., 851 F.3d 224,

229 (2d Cir. 2017) (quoting McMillan, 711 F.3d at 126).
A “reasonable accommodation” may include, inter alia,
“[j]ob restructuring[,] part-time or modified work schedules[,
and] reassignment to a vacant position.”
§ 1630.2(o)(2)(ii).

29 C.F.R.

“To determine the appropriate reasonable

accommodation it may be necessary for the covered entity to
initiate an informal, interactive process with the individual
with a disability in need of the accommodation” to “identify the

-7-

precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those
limitations.”

Id. § 1630.2(o)(3).

“[T]he question of whether a

proposed accommodation is reasonable is ‘fact-specific’ and must
be evaluated on ‘a case-by-case basis.’”

Kennedy v. Dresser

Rand Co., 193 F.3d 120, 122 (2d Cir. 1999) (quoting Wernick v.
Fed. Reserve Bank, 91 F.3d 279, 385 (2d Cir. 1996)).
Genuine issues of material fact also exist with respect to
this element.

For example, there is evidence that SAS made

accommodations for other physician-shareholders who similarly
could not take call or practice at TSH or Tully, such as Dr.
Jankelovits, who could do neither during a two-week suspension.
(Bowling 56(a)(2) Statement Ex. 10, at 79:24.)

But

Jankelovits’s employment was not terminated, and to his memory,
no one at SAS suggested that it should have been terminated.
(Id. Ex. 10, at 93:6-17.)

Also, Dr. Crane, a Class B

shareholder, was permitted to go on medical leave, during which
she neither practiced medicine nor took call.

But upon return

from her leave, she was allowed to relinquish her status as
shareholder, became a part-time employee, and now does not take
call.

(Consol. Rule 56(a) Statement, ECF No. 247, Ex. 61, at

121:16-20.)
With respect to Bowling’s privileges to practice at TSH and
Tully, there is a genuine issue as to whether Bowling could have

-8-

regained those privileges on a temporary basis in an expedited
manner.

(See 2020 Bowling Aff. ¶¶ 46-48.)

With respect to

taking call, Bowling avers that when she was actively practicing
as a Class A shareholder at SAS, she sold most of her call
responsibilities to other shareholders, and that this was a
common and accepted practice at SAS.
C.

Whether Bowling had a good-faith belief in the basis
of her CHRO complaint

SAS argues that Bowling was not engaged in protected
activity because she did not have a good-faith basis to believe
the veracity of her CHRO complaint.

Complaints that an employer

violated the ADA are protected by the ADA as long as the
plaintiff can establish that she “possessed a good faith,
reasonable belief that the underlying challenged actions of the
employer violated that law.”

Weissman, 214 F.3d at 234 (quoting

Sarno, 183 F.3d at 159).
SAS contends that Bowling’s April 2016 CHRO Complaint was
“objectively false” because Bowling stated “that she could
perform her job and that SAS forced her to take an indefinite
leave.”

(Mem. Supp. Def.’s Mot. Summ. J. at 30, ECF No. 209.)

SAS states that it is undisputed that Bowling requested the
medical leave and that HAVEN restricted her ability to practice
anesthesiology.

SAS points out that when HAVEN learned of

Bowling’s CHRO Complaint, it referred Bowling to the Department

-9-

of Public Health to determine if the CHRO Complaint warranted
Bowling’s dismissal from HAVEN.
However, Bowling has created a genuine issue of fact as to
whether she had a good-faith belief that actions by SAS as
described in the CHRO Complaint (i.e., that SAS required her to
take an indefinite medical leave, ignored her requests for
financial information, and breached her employment agreement by
paying her $10,000 per month instead of $50,000 per month)
violated the ADA.

Although there may be certain inaccuracies in

the factual background alleged in the CHRO Complaint, the court
cannot conclude on this record that, as a matter of law, Bowling
lacked a good faith, reasonable belief that SAS’s actions which
formed the basis of the CHRO Complaint violated the ADA.
Bowling has argued in this litigation that she was qualified to
perform the essential functions of her job with reasonable
accommodation because she could have performed certain nonclinical functions.

Bowling drafted the CHRO Complaint without

the assistance of counsel and with the assistance of a CHRO
representative.

HAVEN ultimately did not take any action

against Bowling as a result of her CHRO Complaint.
D.

Whether SAS terminated Bowling’s employment because of
her disability

SAS argues that there is no genuine issue of material fact
as to whether Bowling’s disability was the but-for cause of the

-10-

termination of her employment.

However, there is ample evidence

that could support a conclusion that SAS’s proffered reasons for
terminating Bowling’s employment were pretextual.

(See, e.g.,

Bowling 56(a)(2) Statement Ex. 7, at 88:6-23 (Dr. Finkel
testifying that the shareholders discussed Bowling’s psychiatric
health with respect to her returning to SAS); id. Ex. 8, at
113:12-21 (Dr. Morgoulis testifying that Bowling’s employment
was terminated due to “ill will” generated by her complaints of
discrimination); id. Ex. 9, at 78:1-19 (Dr. D’Agosto testifying
that Bowling’s employment was terminated because she “attacked
the group” and “didn’t think there was any fault from her
side”).)
It is so ordered.
Dated this 24th day of August 2020, at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

-11-