Argued September 17, 2014
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeals from the United States District Court for the Western District of Wisconsin. No. 3:12-cv 00322-bbc -- Barbara B. Crabb, Judge.
For LINDA BLUESTEIN, Doctor, M.D., Plaintiff - Appellant (13-3724, 14-1256, 14-1257): Janet L. Heins, Attorney, HEINS & MINKO LLC, Mequon, WI.
For CENTRAL WISCONSIN ANESTHESIOLOGY, S.C., Defendant - Appellee (13-3724, 14-1256, 14-1257): Edward Everett Robinson, Attorney, CANNON & DUNPHY, Brookfield, WI.
For JANET L. HEINS, Appellant (14-1257): Janet L. Heins, Attorney, HEINS & MINKO LLC, Mequon, WI.
Before FLAUM, KANNE, and ROVNER, Circuit Judges.
Rovner, Circuit Judge.
Linda Bluestein, M.D., sued Central Wisconsin Anesthesiology, S.C. (" Central Wisconsin" ), for 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 judgment 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.
Central Wisconsin is a service corporation organized under Wisconsin law to engage in the practice of providing anesthesia 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 comprised of all of the physician-shareholders. As a shareholder, 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. 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, 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:
As you are probably aware, I am continuing to struggle with a condition with ...