Employer – Employee : Professional Contract – Independent Contractor – FMLA Claim

(1)Where a hospital and a pathologist who were parties to a professional services contract agreed that the hospital would have no right to control the specific manner in which the doctor rendered services, he did not receive benefits or malpractice insurance and did not have taxes withheld, the district court did not err in granting summary judgment dismissing the pathologist’s ADA and ADEA claims based on the finding that the relationship between the parties was that of an independent contractor rather than employee-employer.

(2)Where a pathologist brought a claim under the Family and Medical Leave Act against a hospital after his termination, the appellate court finds in a case of first impression that the hybrid test applied for determining whether a plaintiff is an employee under Nationwide Mutual Insurance v. Darden is the appropriate test to determine who is an employee for FMLA purposes, and the district court properly dismissed the plaintiff’s FMLA claim.

Judgment is affirmed.

Alexander v. Avera St. Luke’s Hospital (MLW No. 66983/Case No. 13-2592 – 13 pages) (U.S. Court of Appeals, 8^th Circuit, Loken, J.) Appealed from U.S. District Court, District of South Dakota, Kornmann, J. ( Ronald A. Parsons Jr., Sioux Falls, South Dakota, for appellant; Steven M. Johnson, Shannon Rae Falon and Pamela Bollweg appeared on the brief) (Reed Alan Rasmussen, Aberdeen, South Dakota, argued for appellee).

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