Hyland v. New Haven Radiology Associates

MINER, Circuit Judge:

Plaintiff-appellant, John Hyland, M.D., claiming a violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1), alleges that he was forced to resign as an employee, officer and director of defendant-appellee, New Haven Radiology Associates, P.C. (“NHRA”) because he was fifty-one years of age. Following extensive discovery, NHRA, a professional corporation, moved for summary judgment, asserting that Hy-land lacked the necessary standing to invoke the protections afforded by the ADEA. Applying an “economic realities” test, the District Court for the District of Connecticut (Dorsey, J.) granted the motion, finding that NHRA “amounts to a partnership in all but name,” Hyland v. New Haven Radiology Associates, 606 F.Supp. 617, 621 (D.Conn.1985), and that Hyland was, in effect, a partner in the enterprise. According to the district court, Hyland therefore was not an employee entitled to claim the benefits provided by the ADEA. Because we find that there is no basis for a finding that NHRA is a partnership, and that Hyland was in fact a corporate employee, we reverse and remand.1

I.

Appellant and four other radiologists organized NHRA in 1972 as a professional services corporation under the laws of the State of Connecticut to conduct the practice of radiology. Pursuant to the terms of a stockholders’ agreement,2 each of the five founding members contributed the same amount of capital for equal shares in the corporation and an equal voice in management. Profits and losses were divided evenly among the members, all of whom served as corporate officers and directors. The stockholders agreed that stock could be held only by shareholder-members, who were required to be licensed physicians. Upon the death, withdrawal or termination of any member, the member or his estate was required to sell, and NHRA to purchase, that shareholder’s stock at a price fixed in accordance with the valuation provisions of the agreement. No stock could be held in the corporation by a non-member or non-employee. The stockholders’ agreement provided for the admission to membership of additional “Stockholder-Employees,” who would enjoy the benefits of the corporation and participate in the manage*795ment of its affairs equally with the other shareholders.3

Each shareholder also signed a separate two-year renewable employment agreement with the corporation, and the terms of these agreements were substantially identical. All members were compensated at the rate of $60,000 annually, subject to withholding of applicable taxes. A further provision in each doctor’s employment agreement allowed for the payment of bonuses to members in the sole discretion of the Board of Directors. Each physician was required to be “a full time employee of the company during the term of this agreement,” with a duty to devote his best efforts in rendering services to NHRA’s patients. He also was required to comply with all company policies and regulations, to turn over to the corporation all compensation earned from rendering professional services of any kind, and to maintain membership in medical societies as required by the Board of Directors. The agreement also entitled each member to a four-week paid vacation; disability payments from the corporation; leave to attend, and reimbursement for the cost of, educational programs; and certain payments upon termination of employment.

The corporation performed all radiological services for St. Raphael Hospital. Each member agreed that he would not work in any radiological capacity for St. Raphael Hospital during the two-year period following termination of his corporate employment. No individual shareholder-member could be terminated without cause from NHRA unless by the vote of three-fourths of all stockholder-members. Hyland’s employment agreement differed from those signed by the other co-founders in that he was required to give six-months’ written notice of his intention to leave the corporation’s employ. The agreement entered into between NHRA and Robert Shapiro, the corporation’s president, also was somewhat different from the others in that it called for a payment of $500 a month to a deferred compensation account to replace a benefit Dr. Shapiro lost from another source when he joined NHRA.

On July 22, 1980, upon the unanimous consent of all the other members, Hyland, then fifty-one years of age, was asked to resign his position as a member and employee of NHRA. According to NHRA, the request was prompted by complaints of appellant’s unavailability, lack of cooperation and abusive conduct. Thereafter, appellant entered into an agreement with the corporation relating to the conditions of his termination as an employee, shareholder, director and officer in the corporation. This agreement dealt with the repurchase of Hyland’s stock, severance pay and the lump-sum withdrawal of a profit-sharing account balance, among other things.

As a result of his termination, appellant brought this action, claiming NHRA discriminated against him in violation of section 623(a)(1) of the ADEA. Hyland argued that the corporation may be classified as an employer under the Act, and that he and its staff were employees protected by the ADEA. The corporation moved for summary judgment on the grounds that it was not an employer and that Hyland was not an employee as defined by the ADEA. It contended that because NHRA is more like a partnership than a corporation, Hy-land should be considered a partner and not an employee. The district court granted the motion. In doing so, the court decided that NHRA chose to do business in the corporate form merely “to gain advantageous tax and civil liability treatment,” 606 F.Supp. at 621, and that although the corporation could be classified as an employer, Hy-land could not be classified as an employee. Judge Dorsey found that NHRA was actually managed and operated like a partnership and held that Hyland, as a member of this common enterprise, could not separate himself from his management and ownership role so as to be considered an “employee.”

*796II.

Appellant advances his claim under section 623(a)(1) of the ADEA, which provides:

It shall be unlawful for an employer — to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age____4

The statute is considered remedial in nature and must be given a liberal interpretation in order to effectuate its purposes, Zimmerman v. North American Signal Co., 704 F.2d 347, 353 (7th Cir.1983); E.E.O.C. v. First Catholic Slovak Ladies Association, 694 F.2d 1068, 1070 (6th Cir.1982), cert. denied, 464 U.S. 819, 104 S.Ct. 80, 78 L.Ed.2d 90 (1983). Its language demonstrates a single congressional aim — to prohibit- “age discrimination by employers against employees and applicants for employment.” Levine v. Fairleigh Dickinson University, 646 F.2d 825, 828 (3d Cir.1981). A plain reading of the Act indicates that its protection extends only to those individuals who are in a direct employment relationship with an employer, and that a claim under its provisions lies solely in favor of a person who is an employee at the time of termination. See Garrett v. Phillips Mills, Inc., 721 F.2d 979, 980-81 (4th Cir.1983).

The Act defines employer in general terms as “a person engaged in an industry affecting commerce who has twenty or more employees____” 29 U.S.C. § 630(b). “Person” is defined as “one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.” 29 U.S.C. § 630(a). The ADEA definition of employee, “an individual employed by any employer,” 29 U.S.C. § 630(f), excludes only elected officials and their personal staff members, id.

The Fair Labor Standards Act of 1938, 29 U.S.C. § 203(a), (d), (e)(1) (1982) (“FLSA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(a), (b), (f) (1982) (“Title VII”), and the ADEA carry nearly identical provisions defining “employer” and “employee.” Since all three statutes have a similar purpose — to stamp-out discrimination in various forms — cases construing the definitional provisions of one are persuasive authority when interpreting the others. See Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978); Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). In various situations calling for the application of these statutes, an individual’s status as a major stockholder, officer or director of a corporation has been found to be compatible with his or her status as an employee. See, e.g., Zimmerman, 704 F.2d at 350-54 (ADEA plaintiff, a corporate vice president and one-third shareholder, considered as employee); First Catholic Slovak Ladies Association, 694 F.2d at 1070 (officer-directors held entitled to ADEA protections); Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 920 (2d Cir.1981) (high level executive employee protected by ADEA); Novotny v. Great American Federal Savings & Loan Association, 584 F.2d 1235, 1261 (3d Cir.1978) (person holding positions of secretary and director held an employee for Title VII purposes), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); Hoy v. Progress Pattern Co., 217 F.2d 701, 704 (6th Cir.1954) (one-eighth shareholder, vice president, director and chairman of board may be employee within purview of FLSA). This is so because “[tjhere is nothing inherently inconsistent between the coexistence of a proprietary and an employment relationship.” Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 32, 81 S.Ct. 933, 936, 6 L.Ed.2d 100 (1961) (shareholders in knitwear cooperative held to be employees under FLSA). *797“Once a contractual relationship of employment is established, the provisions of [the ADEA] attach and govern certain aspects of that relationship.” Hishon v. King & Spaulding, 467 U.S. 69, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984) (Title VII case) (footnote omitted).

III.

It is generally accepted that the benefits of the antidiscrimination statutes referred to in Part II, supra, do not extend to those who properly are classified as partners. In Hishon, 104 S.Ct. at 2236, where the Supreme Court held that a law partnership’s decision to deny admission into the partnership of a female associate/employee was covered by the provisions of Title VII, Justice Powell’s concurring opinion expressed the view that Title VII does not cover the members of a partnership. The concurrence noted, however, that “an employer may not evade the strictures of Title VII simply by labeling its employees as ‘partners.’ ” Id. at 2236 n. 2. It is by reason of their unique status as business owners and managers that true partners cannot be classified as employees. Burke v. Friedman, 556 F.2d 867, 869 (7th Cir.1977).

The Equal Employment Opportunity Commission (“EEOC”), charged with the interpretation and enforcement of both Title VII and the ADEA, examined an eight-member law firm and found that the partners could not be classified as employees for Title VII purposes, EEOC decision No. 85-4, Emp. Prac. Guide (CCH) ¶ 6840, at 7040 (Mar. 18, 1985). The EEOC established the following standard for distinguishing between partners and employees: “In determining whether the individual is a partner or an employee in a particular case, the Commission will consider relevant factors including, but not limited to, the individual’s ability to control and operate the business and to determine compensation and the administration of profits and losses.” Id. at 7041 n. 4. In the performance of its statutory duty to investigate possible violations of the ADEA, the EEOC did not exceed its authority by issuing a subpoena duces tecum to an accounting firm claiming to be a partnership when “the information sought may be relevant to a legitimate purpose because it is possible [the firm] may label some of its members as ‘partners’ when, in fact, those members may not fit within the traditional definition of the term.” E.E.O.C. v. Peat, Marwick, Mitchell & Co., 589 F.Supp. 534, 539 (E.D.Mo.1984), aff'd, 775 F.2d 928 (8th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986).

Rather than accept the obvious contractual employment relationship voluntarily entered into by Hyland and the corporation, the district court found that NHRA “amounts to a partnership” by applying an economic realities test originally developed by the courts to distinguish corporate employees from independent contractors. Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C.Cir.1979) (Title VII case). The test entails consideration of numerous circumstances relating to the work relationship, with the most important factor being the extent of the employer’s right to control the means and manner of the employee’s performance. Id. A “hybrid” economic realities/right to control standard has been introduced to determine whether one claiming the benefits of the ADEA is an employee or an independent contractor. E.E.O.C. v. Zippo Manufacturing Co., 713 F.2d 32, 38 (3d Cir.1983); Hickey v. Arkla Industries, Inc., 699 F.2d 748, 752 (5th Cir.1983).

In only one reported case has the corporate form been disregarded in favor of a finding that the shareholders were in fact partners under the economic realities test. Without further analysis, the court in E.E.O.C. v. Dowd & Dowd, Ltd., 736 F.2d 1177, 1178 (7th Cir.1984) (Title VII case) found that “[t]he role of a shareholder in a professional corporation is far more analogous to a partner in a partnership than it is to the shareholder of a general corporation,” and that “[t]he economic reality of the professional corporation in Illinois is that the management, control and ownership of the corporation is much like the management, *798control and ownership of a partnership.” We disagree with the Seventh Circuit and hold that the use of the corporate form precludes any examination designed to determine whether the entity is in fact a partnership.

While it is true, as contended by NHRA, that shareholders of certain professional and other types of corporations have many of the attributes of partners, it also is true that partnerships frequently are organized in the manner of corporations. Bellis v. United States, 417 U.S. 85, 93-94, 94 S.Ct. 2179, 2185-86, 40 L.Ed.2d 678 (1974). The fact that certain modern partnerships and corporations are practically indistinguishable in structure and operation, however, is no reason for ignoring a form of business organization freely chosen and established. Concededly, the physician members of NHRA found that incorporation provided them with important tax advantages and employee benefits not available in any other type of business organization. Having made the election to incorporate, they should not now be heard to say that their corporation is “essentially a medical partnership among co-equal radiologists.” Affidavit of Gerald Fishbone, M.D., in Support of Defendant’s Motion for Summary Judgment at 5, para. 13 (Sept. 24, 1984).5

It is one thing to apply an economic realities test to distinguish an employee from an independent contractor or partner, but it is quite another to apply the test in an attempt to identify as partner one associated with a corporate enterprise. While those who own shares in a corporation may or may not be employees, they cannot under any circumstances be partners in the same enterprise because the roles are mutually exclusive. NHRA urges us to “develop a ... list of factors to be considered in determining if an individual is a ‘partner’ or a covered ‘employee.’ ” There is no need to develop such a list of factors where the individual involved is a corporate employee, for we hold that every such employee is “covered” for purposes of the ADEA and that any inquiry respecting partnership status would be irrelevant.

The status of Dr. Hyland is clear — not only was he an officer, director and shareholder of NHRA, he also was specifically designated as an employee of the corporation in an employment agreement containing detailed provisions relating to the terms and conditions of his employment. There was nothing inconsistent between his proprietary interest (whether or not it was exactly equal to the interests of each of his associates) and the corporate employment relationship he held. An analysis of his status need proceed no further. His fellow shareholders, officers and directors in NHRA simply are precluded from expelling him from the corporation on the statutorily disapproved basis of age discrimination.

Accordingly, the judgment of the district court is reversed and the matter is remanded for further proceedings consistent with the foregoing.

. By decision of Magistrate Smith dated January 12, 1983, adopted and approved by Judge Daly on February 4, 1983, pendent state claims of breach of contract, wrongful discharge and intentional infliction of emotional distress were dismissed. The same pendent claims, reasserted in the amended complaint, were dismissed by Judge Dorsey in an order dated January 23, 1984, which also dismissed the ADEA claim as against the individual defendants. No appeal is taken from any of these rulings.

. The stockholders’ agreement referred to consists of an original agreement dated October 3, 1972 and a "First Amendment” to the agreement dated February 3, 1976.

. The original shareholders were Drs. Robert Shapiro, Solomon Schwartz, Wayne Whitcomb, Gerald Fishbone and John Hyland. It appears that Dr. Whitcomb is now deceased.

. The discrimination complained of must be suffered by one between the ages of 40 and 70. 29 U.S.C. § 631(a).

. Dr. Fishbone, who has served as vice-president, treasurer and director of NHRA, attempts to secure the "best of both possible worlds” by alleging that the "choice, in 1972, to employ a corporate form was made for sound business and financial reasons but has not affected the conduct of our affairs as equal partners in this medical practice.” Affidavit of Gerald Fishbone, M.D., at 5, para. 14.