Deborah Anne Wells v. Clackamas Gastroenterology Associates, P.C., an Oregon Corporation

271 F.3d 903 (9th Cir. 2001) DEBORAH ANNE WELLS, PLAINTIFF-APPELLANT, v. CLACKAMAS GASTROENTEROLOGY ASSOCIATES, P.C., AN OREGON CORPORATION, DEFENDANT-APPELLEE. No. 00-35545 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 13, 2001 Filed November 26, 2001 Craig A. Crispin, Portland, Oregon, for the plaintiff-appellant. Steven W. Seymour, Portland, Oregon, for the defendant-appellee. Appeal from the United States District Court for the District of Oregon; Owen M. Panner, District Judge, Presiding. D.C. No. CV 99-0406 OMP Before: Thompson, Tashima, and Graber, Circuit Judges. Opinion by Judge Tashima; Dissent by Judge Graber TASHIMA, Circuit Judge: 1 Plaintiff-Appellant Deborah Anne Wells appeals from the order of the district court granting summary judgment in favor of Defendant-Appellee Clackamas Gastroenterology Associates, P.C. (Clackamas) on her claim under the Americans With Disabilities Act of 1990 (ADA). The district court held that Clackamas was not an "employer," and therefore not a "covered entity," within the meaning of the ADA because it did not have 15 or more employees during the relevant time periods. We must decide whether…

Opinion by Judge TASHIMA; Dissent by Judge GRABER.

Plaintiff-Appellant Deborah Anne Wells appeals from the order of the district court granting summary judgment in favor of Defendant-Appellee Clackamas Gastroen-terology Associates, P.C. (Clackamas) on her claim under the Americans With Disabilities Act of 1990 (ADA). The district court held that Clackamas was not an “employer,” and therefore not a “covered entity,” within the meaning of the ADA because it did not have 15.or more employees during the relevant time periods. We must decide whether Clackamas’ physician-shareholders were “employees” within the meaning of the ADA. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse.

I. BACKGROUND

Wells was an employee of Clackamas, an Oregon professional corporation, from 1986 until her termination in May 1997. During the relevant time period, four phy *904 sician-shareholders, all of whom participated in the management and operations of the medical practice, were the shareholders and directors of Clackamas. In addition to the physician-shareholders, 12-15 other persons were employed by Clacka-mas during this time period.

When Clackamas terminated Wells’ employment,…

dissenting:

I respectfully dissent. For three reasons, EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177 (7th Cir.1984), expresses the more persuasive approach in the context of this case: 1 (1) our circuit has cautioned against being governed by labels, rather than realities; (2) a physicians’ professional corporation in Oregon has many attributes of a partnership as a matter of law and is not merely an ordinary commercial corporation; and (3) the purpose of the numerical requirement in the ADA is to separate small from large enterprises, not to adhere to the vagaries of tax law or tort liability. Like the district court, I would apply the “economic realities” test and would conclude that Defendant’s physician-shareholders were not “employees” within the meaning of the ADA.

1. The Significance of Strother

In Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 865-68 (9th Cir.1996), we held that “partners” can be considered “employees” under a state anti-discrimination statute that borrowed concepts from federal [aw. There, a partner in a medical partnership consisting of more than 2,000 partners had sued the medical partnership. The district court held that the…