United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED March 10, 2021 No. 20-50356 Lyle W. Cayce Clerk

Doctor Melvin G. Perry, Jr.,

Plaintiff—Appellant,

versus

VHS San Antonio Partners, L.L.C., doing business as North Central Baptist Hospital,

Defendant—Appellee.

Appeal from the United States District Court for the Western District of Texas USDC No. 5:18-CV-404

Before Jolly, Stewart, and Oldham, Circuit Judges. E. Grady Jolly, Circuit Judge: The man at the center of this employment-discrimination appeal is Dr. Melvin G. Perry, Jr., an African-American pediatric intensivist. Dr. Perry treated children in the pediatric intensive care unit of a hospital owned by VHS San Antonio Partners, L.L.C. under his professional services agreement with Pediatric Inpatient Critical Care Services (PICCS), which itself operated under a separate coverage agreement with VHS. PICCS eventually terminated its professional services agreement with Dr. Perry at VHS’s request. In response, Dr. Perry sued claiming race discrimination Case: 20-50356 Document: 00515774519 Page: 2 Date Filed: 03/10/2021

No. 20-50356

under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court granted summary judgment dismissing his claims against VHS, dismissing his Title VII claim for lack of an employment relationship with VHS, and his § 1981 claim for lack of a contractual relationship with VHS. Dr. Perry appeals to us. We hold that Dr. Perry’s Title VII claim fails for lack of an employment relationship with VHS under either integrated- enterprise or joint-employment theories. And we further hold that Dr. Perry’s § 1981 claim fails because Dr. Perry cannot identify an impaired contractual right enforceable against VHS. Consequently, we affirm the district court’s partial final judgment. (Dr. Perry’s § 1981 claim against PICCS is still pending before the district court.) 1 I VHS is an entity that owns and operates North Central Baptist Hospital. North Central Baptist is located in San Antonio, Texas and is the hub for pediatric care for the Baptist Health System in the area. The pediatric intensive care unit is at the center of this dispute. In December 2014, North Central Baptist needed physicians to treat patients in that unit. To fill that need, VHS contracted with PICCS, a professional association owned by three physicians: Dr. Thomas Gowan, Dr. Hugo Carvajal, and Dr. Nelson Pedro Chavez. The parties call this agreement the “coverage agreement,” and we will do the same. The purpose of the coverage agreement is to ensure that VHS has enough pediatric intensivists to treat the children in North Central Baptist’s pediatric intensive care unit. The agreement achieves that goal by making

1 The district court entered a Federal Rule of Civil Procedure 54(b) partial final judgment authorizing this interlocutory appeal.

2 Case: 20-50356 Document: 00515774519 Page: 3 Date Filed: 03/10/2021