Bluestein v. Central Wisconsin Anesthesiology, S.C.

In the

United States Court of Appeals
For the Seventh Circuit
Nos. 13-3724, 14-1256 & 14-1257

LINDA BLUESTEIN, M.D.,
Plaintiff-Appellant,

v.

CENTRAL WISCONSIN
ANESTHESIOLOGY, S.C.,
Defendant-Appellee.
and

APPEAL OF: JANET L. HEINS,
Attorney.

Appeals from the United States District Court for the
Western District of Wisconsin.
No. 3:12-cv-00322-bbc— Barbara B. Crabb, Judge.

ARGUED SEPTEMBER 17, 2014 — DECIDED OCTOBER 15, 2014

Before FLAUM, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Linda Bluestein, M.D., sued Central
Wisconsin Anesthesiology, S.C. (“Central Wisconsin”), for
2 Nos. 13-3724, 14-1256 & 14-1257

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 judg-
ment 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.
I.
Central Wisconsin is a service corporation organized under
Wisconsin law to engage in the practice of providing anesthe-
sia 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
Nos. 13-3724, 14-1256 & 14-1257 3

comprised of all of the physician-shareholders. As a share-
holder, 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,

1
Although Bluestein denies in her briefs that profits were shared equally,
a review of her citations to the record reveals that she has no evidence to
support this assertion. Federal Rule of Civil Procedure 56 requires that a
party genuinely disputing a fact must support that assertion by citing to
particular parts of the record. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(in cases where the nonmoving party will bear the burden of proof at trial
on a dispositive issue, when a summary judgment motion was properly
made in reliance on the pleadings, depositions, answers to interrogatories,
and admissions on file, Rule 56(e) requires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial). Majors v. General Elec. Co.,
714 F.3d 527, 540 (7th Cir. 2013) (conclusory statements unsupported by the
record are insufficient to defeat summary judgment). We will not credit
those parts of Bluestein’s version of the facts that are not supported by any
evidence in the record.
4 Nos. 13-3724, 14-1256 & 14-1257

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:
Dear colleagues:
As you are probably aware, I am continuing to
struggle with a condition with my hamstring ten-
don.
I have just finished my recommended month off to
allow for healing and recovery. Unfortunately, this
has not led to the improvement we had hoped for. I
have been advised by my treating doctor that the
best course of action at this time would be for me to
take an open ended medical leave of absence in
order that I may continue to pursue the necessary
Nos. 13-3724, 14-1256 & 14-1257 5

treatment options without exacerbating my condi-
tion further. At this time, my treating doctor and I
share in the realization that I am unable to meet the
physical demands of practicing anesthesia. 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 termi-
nated 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 Wiscon-
sin’s motion for summary judgment on multiple grounds.
First, the court concluded that Bluestein was an employer at
6 Nos. 13-3724, 14-1256 & 14-1257

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 individ-
ual with a disability unless there was a reasonable accommo-
dation 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 Wiscon-
sin 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 founda-
tion.” Bluestein v. Central Wisconsin Anesthesiology, P.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
Nos. 13-3724, 14-1256 & 14-1257 7

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.
II.
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 (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.
8 Nos. 13-3724, 14-1256 & 14-1257

§ 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 (1978); Munson v. Milwaukee Bd. of School Directors,
969 F.2d 266, 269 (7th Cir. 1992) (district courts are given wide
latitude to determine whether an award of fees to prevailing
defendants is appropriate in a given case, and we will reverse
a decision to award fees to a prevailing defendant only upon
a showing of abuse of discretion by the district court).
A.
The threshold question for Bluestein’s claims is whether she
is an “employee” protected by the statutes at issue. Each of the
statutes invoked by Bluestein protects employees (and others
not at issue here, such as job applicants) from discrimination
by employers. See 42 U.S.C. § 12112(a);3 29 U.S.C. § 794(d);4

2
That subsection provides, in relevant part: “In any action or proceeding
under this subchapter the court, in its discretion, may allow the prevailing
party … a reasonable attorney's fee … as part of the costs[.]”

3
The statute provides: “No covered entity shall discriminate against a
qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment.”

4
That section of the Rehabilitation Act directs that courts employ the
standards applied under the ADA to determine whether the Rehabilitation
Act has been violated in a complaint alleging employment discrimination.
Nos. 13-3724, 14-1256 & 14-1257 9

42 U.S.C. 2000e-2.5 But the definition of “employee” in each
statute is vague and circular. See 42 U.S.C. § 12111 (“The term
‘employee’ means an individual employed by an employer.”);
42 U.S.C. § 2000e(f) (same). See also Clackamas Gastroenterology
Associates, P.C. v. Wells, 538 U.S. 440, 444 (2003) (noting that the
definition of “employee” in the ADA is circular). “Employer”
is defined in the ADA as “a person engaged in an industry
affecting commerce who has 15 or more employees for each
working day in each of 20 or more calendar weeks in the
current or preceding calendar year, and any agent of such
person.” 42 U.S.C. § 12111(5)(A).
When faced with the question of determining the meaning
of the term “employee” in the context of the ADA, the Su-
preme Court reasoned that, when a statute does not provide a
working definition, the courts should turn to the common law
test for determining who qualifies as an employee. Clackamas,
538 U.S. at 444-45. Clackamas presented a scenario that was
remarkably similar to the circumstances at Central Wisconsin.
In that case, a bookkeeper sued a medical clinic for disability
discrimination under the ADA. Because the ADA applies only
to employers whose workforce includes fifteen or more

5
The statute provides: “It shall be an unlawful employment practice for an
employer– (1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin; or (2) to limit,
segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee,
because of such individual's race, color, religion, sex, or national origin.”
10 Nos. 13-3724, 14-1256 & 14-1257

employees, it was necessary to determine how many “em-
ployees” the clinic employed during the relevant time period.
This in turn depended on whether the “four physicians
actively engaged in medical practice as shareholders and
directors of a professional corporation should be counted as
‘employees.’” 538 U.S. at 442. The Court noted that it had
previously adopted the common law test to determine who
qualifies as an employee for the purposes of the Employee
Retirement Income Security Act of 1974 (“ERISA”). But the
defendant-clinic in Clackamas encouraged the Court to reject
the common law analysis in the ADA context and instead
conclude that the shareholder-directors were more analogous
to partners in a partnership than to shareholders in a corpora-
tion. Partners, the clinic argued, were employers rather than
employees. The Court rejected the clinic’s assertion, noting that
partnerships sometimes include hundreds of members, some
of whom would easily qualify as employees when control is
concentrated in a small number of managing partners. 538 U.S.
at 445-46.
Instead, the Court returned to the common law definition
of “servant” in determining whether an individual is an
employee. Clackamas, 538 U.S. at 448. Under the common law
definition, a servant is a person whose work is controlled or is
subject to a right to control by the master. Based on the
Restatement (Second) of Agency, §§ 2(2) and 220(2)(a), the
Court remarked that the element of control should be the
principal guidepost in assessing whether a person is an
employee. 538 U.S. at 448. The Court then adopted a non-
exclusive list of six factors designed to reflect the common law
element of control:
Nos. 13-3724, 14-1256 & 14-1257 11

Whether the organization can hire or fire the indi-
vidual or set the rules and regulations of the individ-
ual'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; and
Whether the individual shares in the profits, losses,
and liabilities of the organization.
Clackamas, 538 U.S. at 449-50. In contrast,
an employer is the person, or group of persons, who
owns and manages the enterprise. The employer can
hire and fire employees, can assign tasks to employ-
ees 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 partic-
ular title—such as partner, director, or vice
president—should not necessarily be used to deter-
mine whether he or she is an employee or a propri-
etor. … Nor should the mere existence of a docu-
ment styled “employment agreement” lead inexora-
bly to the conclusion that either party is an em-
ployee.
12 Nos. 13-3724, 14-1256 & 14-1257

538 U.S. at 450. When deciding whether shareholder-directors
were employees, no one factor should be decisive, the Court
emphasized, but all aspects of the relationship should be
considered. 538 U.S. at 451. See also Smith v. Castaways Family
Diner, 453 F.3d 971, 977 (7th Cir. 2006) (no one factor is disposi-
tive and a court must look to all aspects of the relationship
between the shareholder-director and the organization to
decide whether the shareholder-director exerts control or has
the right to exert control over the organization).
With those standards in mind, the question for Bluestein is
whether she raised a genuine issue of material fact on the issue
of her status as an employee. As we noted above, she was a
shareholder and member of the board of directors at Central
Wisconsin, entitled to vote on all issues coming before the
board and subject to the same board-and committee-approved
policies as every other physician-shareholder of the service
corporation. There were approximately sixteen physician-
shareholders at the time of Bluestein’s termination. Turning to
the first part of the first factor, whether the organization can
hire or fire the individual, the record demonstrated that hiring
and firing decisions were made collectively by the shareholder-
board members. Indeed, Bluestein herself voted on her own
termination. Clackamas, 538 U.S. at 450 (an employer can hire
and fire employees). That she was in the minority of that vote
does not diminish her right of control on hiring and firing; the
right to cast a vote equal to that of any other board member
unequivocally indicates that Bluestein was an employer rather
than an employee for the purposes of hiring and firing. Solon
v. Kaplan, 398 F.3d 629, 634 (7th Cir. 2005) (shareholder’s
contention that he was outvoted does not undermine conclu-
Nos. 13-3724, 14-1256 & 14-1257 13

sion that he was an employer when he had an equal right to
vote); Schmidt v. Ottawa Medical Center, P.C., 322 F.3d 461, 467
(7th Cir. 2003) (physician-shareholder with equal vote is
employer notwithstanding his repeated inability to secure the
majority opinion of his fellow shareholders).
Bluestein fares no better on the second part of the first
factor, namely, whether the organization set the rules and
regulations of the individual's work. Bluestein complains that,
under various policies adopted by the board and its subcom-
mittees, she could not unilaterally take a vacation day, set her
own schedule, assign cases to herself, or decide when she
could take her lunch or a break. Again, the undisputed record
demonstrates that it was not the “organization” but the
physician-shareholders who collectively voted at board
meetings on the rules and regulations that governed all of the
staff. Bluestein herself participated in board meetings and
committee meetings where she voted on issues relating to
compensation, vacation policy and other workplace issues.
Unlike the non-physician staff members at Central Wisconsin,
as a full board member, Bluestein was one of the decision-
makers who determined the rules and regulations that gov-
erned her own work and the work of others at the organiza-
tion. Moreover, under the bylaws, any physician-shareholder
who could secure the support of a sufficient number of board
members could challenge and change those policies.
Turning to the second factor, whether the organization
supervises the individual's work, Bluestein presented no
evidence that anyone at Central Wisconsin supervised her
work as an anesthesiologist. Bluestein asserts as evidence of
supervision that she could not change her part-time work
14 Nos. 13-3724, 14-1256 & 14-1257

schedule from 80% to 90% without board approval. Nor could
she unilaterally take a leave of absence or decide upon and
implement her own disability accommodations. We note first
that these are not matters relating to the supervision of her
work as an anesthesiologist but are more in the nature of the
general office rules and policies that we addressed in the first
factor. The salient point is that Bluestein could point to no
supervisor at Central Wisconsin who dictated how Bluestein
practiced anesthesiology. As a physician, she determined how
to complete the specific tasks of her work. Bluestein has
produced no evidence that anyone at Central Wisconsin had a
right to control the details of her work. See Clackamas, 538 U.S.
at 448 (in distinguishing between servants and independent
contractors, the extent of control one may exercise over the
details of the work of the other is a primary consideration);
Schmidt, 322 F.3d at 467 (where service corporation’s board
assigns patients to physicians, and physician then has absolute
authority for the treatment of those patients, the physician is an
employer rather than an employee, especially where the
physician exercises as much control over his employment as
any other member of the physician-shareholder board).
Bluestein thus fails to raise a genuine issue of material fact on
the question of supervision.
Bluestein treats the third factor—whether the individual
reports to someone higher in the organization—as essentially
co-extensive with the test for supervision. She asserts that one
physician, Dr. Mason, was the chair of the board for eleven
years, that he intimidated and discouraged others from
running for the post of chair, and that he failed to follow the
bylaws requirement of holding an election every two years.
Nos. 13-3724, 14-1256 & 14-1257 15

Bluestein claims that she was required to seek approval from
Mason or another physician for days off, and that a committee
of which she was not a member determined doctors’ schedules
and patient assignments. But all of this was the result of the
collective action (or inaction) of Bluestein’s fellow physician-
shareholders. That Bluestein was in a minority position on how
the service corporation organized schedules, patient assign-
ments and time off is irrelevant to her right to an equal vote on
these issues as a shareholder. None of this evidence addresses
whether she “reported to” someone higher in the organization.
Instead, the evidence demonstrates that each physician-
shareholder had an equal vote in matters affecting the organi-
zation. That some functions or control may have been dele-
gated to the board chair is irrelevant because Bluestein had an
equal vote in the delegation. Nor does it matter for the pur-
poses of determining her status as an employee that Dr. Mason
appeared to have great influence with his colleagues. Under
the bylaws, the shareholders were free to delegate authority to
one of their members and just as free to retract that delegation.
But each shareholder, including Bluestein, had an equal vote.
Once again, that she was in the minority view does not detract
from her right of control.
The fourth factor is whether and to what extent an individ-
ual is able to influence the organization. Bluestein asserts that
she had no authority, control or influence over the board. But
she bases this assertion on the same evidence that we found
inadequate above. She does not dispute on appeal that she was
a full member of the board and an equal shareholder entitled
to vote on all matters coming before the board. Instead, she
essentially alleges that she frequently found herself in the
16 Nos. 13-3724, 14-1256 & 14-1257

minority position on how her colleagues decided to run the
business. Not winning the vote is not the same as not having
a vote, however, and it is her opportunity for shared control
that counts when determining whether she was an employer
or employee. See Schmidt, 322 F.3d at 468 (“when an individual
claimant-shareholder enjoys the opportunity for shared control
of the closely held professional corporation, including the
opportunity to share in its profits, we will treat him or her as
a bona fide employer for purposes of the ADEA.”).
As the district court noted, Bluestein’s situation was
markedly different from that of the thirty-two partners
demoted from full partnership in EEOC v. Sidley Austin Brown
& Wood, 315 F.3d 696 (7th Cir. 2002). In that case, a large law
firm consisting of more than 500 partners demoted thirty-two
partners who then sued the firm under the Age Discrimination
in Employment Act. Unlike Central Wisconsin, the law firm
was controlled by a small, self-perpetuating executive commit-
tee that held the power to hire, fire, promote and determine the
compensation of the partners who were not on the committee.
Although all partners shared the firm’s liabilities in proportion
to their share of capital in the firm, profits were distributed
according to a formula determined by the executive committee.
All of the firm’s committees were subject to the control of the
executive committee, which appointed all of the members of
other committees. The partners did not elect the members of
the executive committee; instead, the executive committee
determined its own membership. The thirty-two demoted
partners thus had no voting power and no control over their
fate at the firm. The only issue on which the entire partnership
voted related to a merger with another firm. Otherwise, the
Nos. 13-3724, 14-1256 & 14-1257 17

executive committee controlled the running of the firm. We
held that not all partners should be deemed employers as a
matter of law. 315 F.3d at 702. Rather, some shareholders of a
professional corporation may be considered employees for the
purposes of federal anti-discrimination law. 315 F.3d at 703.
The manner of sharing profits and liabilities, the partners’
ability to control their own fates, and the amount of control
partners had to conduct their own work all contributed to the
analysis of whether these thirty-two partners were employers
or employees. We remanded to the district court to allow for
discovery on those issues.
In contrast, Central Wisconsin was run by a sixteen-
member board that consisted of all of the physician-sharehold-
ers, not some exclusive subset of them. All major decisions
were put to a vote and each shareholder had an equal vote.
Both profits and losses were shared equally. Bluestein enjoyed
the same right of control that every other physician-share-
holder possessed. She possessed no more or less of a right to
influence the organization than any other partner.
Turning to the fifth factor—whether the parties intended
the individual to be an employee, as expressed in written
agreements or contracts—we will assume that the contract
Bluestein signed before she became a full shareholder was still
in effect at the time of her termination from the service
corporation. That contract referred to Bluestein as an em-
ployee. Bluestein also notes that she received a W-2 form
indicating her wages annually. But the Clackamas Court
cautioned that “the mere existence of a document styled
‘employment agreement’ [should not] lead inexorably to the
conclusion that either party is an employee.” Clackamas, 538
18 Nos. 13-3724, 14-1256 & 14-1257

U.S. at 450-51. And we found that the physician-shareholder in
Schmidt was an employer even though he had an employment
agreement with the professional corporation that described
him repeatedly as an employee and even though he received
a base salary reported on a W-2. Schmidt was an employer, we
found, because he shared in the management and control of
the professional corporation throughout his career, and was a
shareholder, a corporate officer, a board member and a director
throughout his tenure. As a shareholder, he possessed an equal
vote in all matters put to a shareholder vote and had a voice in
all matters put before the board. 322 F.3d at 467. Like Bluestein,
he frequently found himself in the minority position on the
votes of his fellow shareholders but that did not alter the fact
that he had the right to exercise control with each vote and had
an opportunity to participate in revising and voting on board
plans with which he disagreed. Id. Like Bluestein, Schmidt did
not possess sole authority over the conditions of his employ-
ment but rather shared that authority in equal parts with other
members of the board. Like Bluestein, Schmidt exercised as
much control over his employment as any other shareholder.
322 F.3d at 467. These factors, considered as a whole, overcame
the simple labeling of Schmidt as an employee in the employ-
ment agreement. 322 F.3d at 468 (“when an individual claim-
ant-shareholder enjoys the opportunity for shared control of
the closely held professional corporation, including the
opportunity to share in its profits, we will treat him or her as
a bona fide employer for purposes of the ADEA”). Under our
reasoning in Schmidt, the language in Bluestein’s contract
cannot overcome the reality of her position in the professional
corporation.
Nos. 13-3724, 14-1256 & 14-1257 19

Finally, Bluestein failed to raise a genuine issue of material
fact on the sixth factor, whether an individual shares in the
profits, losses and liabilities of the organization. In addressing
the sixth factor, Bluestein baldly asserts in her brief that she did
not share equally in the profits and losses of Central Wisconsin.
But a review of her citations to the record reveals no evidence
in support of that assertion. She therefore raises no genuine
issue of material fact on the sixth factor. See supra note 1.
Taking all six factors as a whole, we conclude that Bluestein
was an employer as a matter of law. In sum, she was a full
physician-shareholder and board member in a small medical
professional corporation. She had an equal right to vote on all
matters coming before the board, shared equally in the firm’s
profits and liabilities, and participated in decisions to hire and
fire employees. She even voted on her own termination.
Although she was subject to general workplace policies
regarding her hours, vacation, scheduling and patient assign-
ments, all the physician-shareholders were subject to the same
policies, and all had an equal right to influence those policies.
She reported to no one and the details of her work as an
anesthesiologist were not supervised or controlled by anyone
at the firm. Although she often found herself in the minority
position among her fellow physician-shareholders, it is her
right of control that matters to the analysis. Our conclusion that
she was an employer is fatal to all of her discrimination claims.
We therefore need not consider the merits of the individual
discrimination claims and we affirm summary judgment in
favor of Central Wisconsin.
20 Nos. 13-3724, 14-1256 & 14-1257

B.
Bluestein and her lawyer also appeal the district court’s
award of attorneys’ fees pursuant to 42 U.S.C. § 2000e-5(k), a
determination that we review for abuse of discretion.
Christiansburg Garment, 434 U.S. at 421; Munson, 969 F.2d at
269. “[A] district court may in its discretion award attorney's
fees to a prevailing defendant in a Title VII case upon a finding
that the plaintiff's action was frivolous, unreasonable, or
without foundation, even though not brought in subjective bad
faith.” Christiansburg Garment, 434 U.S. at 421.
In analyzing the request for fees, the district court re-
counted its conclusions on summary judgment: (1) that the
undisputed facts demonstrated that Bluestein was an employer
rather than an employee; (2) that she failed to produce any
evidence that Central Wisconsin received financial assistance
from the federal government, a requirement for suits under the
Rehabilitation Act; (3) that she did not demonstrate that she
was disabled within the meaning of the ADA because she
produced no evidence of a substantial limitation in a major life
activity; (4) that she did not show what reasonable accommo-
dation the defendant could have provided her; (5) that she did
not demonstrate that she was a “qualified individual” under
the ADA and instead failed to acknowledge her admission to
her fellow shareholders that she was unable to meet the
physical demands of practicing anesthesia; (6) that she did not
establish that the extended or indefinite leave of absence she
requested was a reasonable accommodation in light of circuit
law to the contrary; and (7) that she did not raise a genuine
issue of material fact on her claim of sex discrimination. The
court also noted that a reasonable amount of legal research
Nos. 13-3724, 14-1256 & 14-1257 21

should have alerted counsel to the implausibility of success on
the merits of any of her claims. The combination of these
factors led the court to conclude that Bluestein’s suit was
frivolous, unreasonable and without foundation, and that an
award of fees was appropriate in this instance.
Bluestein cites “two glaring features” of the district court
record that she contends require reversal of the award of fees.
First, the district court denied Central Wisconsin’s motion to
dismiss the case, and second, neither the court nor the defen-
dant ever hinted prior to summary judgment that they consid-
ered the case frivolous. The motion to dismiss, however, was
based not on the merits of the suit but on the plaintiff’s failure
to cooperate with discovery. The court denied that motion
because it concluded that lesser sanctions would be adequate
to remedy the plaintiff’s discovery violations. There was no
reason for the court to address the merits of the suit at that
time. And Bluestein does not explain why it was improper for
the defendant to await the factual development of the case and
summary judgment before seeking fees. In any case, the
defendant alerted the plaintiff that it considered the suit
frivolous when it filed its answer to the complaint early in the
litigation. “Abuse of discretion exists only where the result is
not one that could have been reached by a reasonable jurist or
where the decision of the trial court strikes us as fundamen-
tally wrong or is clearly unreasonable, arbitrary, or fanciful.”
Greviskes v. Universities Research Ass'n, Inc., 417 F.3d 752, 758
(7th Cir. 2005). A reasonable jurist could conclude that
Bluestein’s suit was frivolous, unreasonable and without
foundation, and we therefore affirm the award of attorneys’
fees.
22 Nos. 13-3724, 14-1256 & 14-1257

C.
Finally, Central Wisconsin has moved for attorneys’ fees on
appeal pursuant to Federal Rule of Appellate Procedure 38.
That rule provides that if “a court of appeals determines that
an appeal is frivolous, it may, after a separately filed motion or
notice from the court and reasonable opportunity to respond,
award just damages and single or double costs to the appel-
lee.” Fed. R. App. P. 38. An appeal is frivolous within the
meaning of Rule 38 when it is prosecuted with no reasonable
expectation of altering the district court's judgment and for
purposes of delay or harassment or out of sheer obstinacy.
Wachovia Securities, LLC v. Loop Corp., 726 F.3d 899, 909-10 (7th
Cir. 2013); Giannopoulos v. Brach & Brock Confections, Inc., 109
F.3d 406, 412 (7th Cir. 1997); Flexible Mfg. Systems Pty. Ltd. v.
Super Products Corp., 86 F.3d 96, 101 (7th Cir. 1996). See also
Lorentzen v. Anderson Pest Control, 64 F.3d 327, 331 (7th Cir.
1995) (an appeal is frivolous for the purposes of Rule 38 when
the result is obvious or when the appellant's arguments are
wholly without merit; at times, we have also required some
evidence of bad faith before finding that sanctions should be
imposed). Rule 38 is permissive rather than mandatory, and so
we may decline to impose fees even if we find that an appeal
is frivolous. See e.g. Lorentzen, 64 F.3d at 331. Poor judgment
may have driven the appeal here but we see no evidence of
bad faith, harassment or obstinacy. Lorentzen, 64 F.3d at 331.
The sanctions below were substantial and no useful purpose
would be served in ordering the plaintiff to pay further
attorneys’ fees to Central Wisconsin. The plaintiff shall bear the
defendant’s costs on appeal. AFFIRMED.