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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10763
Non-Argument Calendar
________________________
D.C. Docket No. 8:14-cv-01762-JSM-TBM
DR. MICHELLE G. SCOTT,
Plaintiff-Appellant,
versus
SARASOTA DOCTORS HOSPITAL, INC.,
a Florida corporation,
d.b.a. Doctors Hospital of Sarasota,
EMCARE, INC.,
a Foreign Profit Corporation doing business in the
State of Florida,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 8, 2017)
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Before JORDAN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
Dr. Michelle Scott appeals the district court’s grant of summary judgment in
favor of EmCare, Inc. and denial of her motion for a new trial following a jury
verdict in favor of Sarasota Doctors Hospital, Inc. (“the Hospital”). After careful
review, we affirm the district court’s grant of summary judgment and denial of
Scott’s motion for a new trial.
Scott sued the Hospital for sex discrimination and both the Hospital and
EmCare for retaliation under both federal and Florida law. See 42 U.S.C.
§§ 2000e–2(a) and 2000e–3 (Title VII of the Civil Rights Act of 1964); Fla. Stat.
§ 760.10 (Florida Civil Rights Act). 1 The district court granted EmCare summary
judgment on all Scott’s claims against it, but the court allowed the claims against
the Hospital to go to trial. At trial, the jury determined that the Hospital was not
Scott’s joint employer, ending the case.
On appeal, Scott argues that the district court erred by granting summary
judgment to EmCare on her retaliation claim. We cannot agree because she failed
to demonstrate that EmCare’s legitimate nondiscriminatory reason for terminating
her was pretextual. Scott also contends that the district court erred by denying her
1
Scott also filed a sex discrimination claim against EmCare, but she abandoned this
claim at her deposition and in any event does not appeal the district court’s grant of summary
judgment to EmCare on it.
2
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motion for a new trial against the Hospital because the jury’s verdict that the
Hospital was not her joint employer went against the great weight of the evidence.
But there was enough evidence supporting the verdict that the district court did not
abuse its discretion in denying Scott’s motion. Finally, she asserts that the district
court abused its discretion by excluding the testimony of Dr. Tracy Vasile, a
female doctor who alleged sex discrimination by the Hospital’s CEO. Vasile’s
testimony would have had no effect on the jury’s verdict, however, so any error by
the district court was harmless. Accordingly, we affirm.
I. BACKGROUND
A. Facts Related to EmCare’s Summary Judgment Motion
We begin by setting forth the facts relevant to EmCare’s summary judgment
motion. Scott is a hospitalist—a hospital-based primary care physician—who
worked at the Hospital from November 2011 until she was removed in October
2013. 2 Although she worked at the Hospital, Scott was officially employed by
EmCare, 3 a corporation that manages physician practice groups and contracts to
provide hospitals with physicians.
2
We set forth the facts regarding EmCare’s decision to terminate Scott in the light most
favorable to Scott on review of the district court’s decision granting summary judgment to
EmCare.
3
Technically, Scott was employed by yet another entity, Inpatient Services of Florida,
Inc., but the evidence taken in the light most favorable to Scott established that EmCare was also
her employer.
3
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Scott claimed that she was discriminated against on the basis of her gender.
She asserted that after a vague complaint about her behavior and a disagreement
with a colleague over the proper course of treatment for a terminally-ill cancer
patient, the Hospital began looking to replace her. After the disagreement with her
colleague, Scott was informed she would be replaced by a male doctor. He
eventually reneged on his contract, and she was told she could stay. But Dr.
Michael Schandorf, Scott’s supervisor, later introduced her to another male doctor
interviewing for her position. Schandorf explained to Scott that Bob Meade, the
hospital’s CEO, thought she did not fit the Hospital’s culture.
Scott asserted that the real reason she was being treated unfavorably was
because of her gender. Vasile, another female doctor, had been subject to similarly
vague behavioral complaints. Vasile was then fired, apparently in part because she
had not greeted Meade twice in the doctors’ lounge. In contrast, a male doctor
with reported behavior problems was given warnings and anger management
classes to change his behavior before being fired with several months’ notification.
Based on these interactions, Scott filed a Charge of Discrimination with the
EEOC on September 23, 2013. Just ten days later—on October 3, 2013—
Schandorf approached Scott and suggested she take an open position at a different
hospital. When Scott asked Schandorf if he was aware of her Charge of
Discrimination, he responded that he was not. Scott then went to the Hospital’s
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Human Resources (HR) department and asked a staffer if she was aware of the
EEOC Charge. The HR staffer was not aware of the complaint, and Scott told her
to investigate it. Scott acknowledged that she was upset during this meeting and
might have raised her voice and spoken quickly.
After the visit from Scott, the HR staffer contacted her boss, who told Meade
about Scott’s visit. According to Meade, the staffer reported that Scott went on a
“tirade” and “absolutely explod[ed]” in HR. Dep. of Robert Meade 70–72 (Doc.
66-13).4 Meade was already aware of the EEOC complaint. Meade then called
Joel Stern, EmCare’s regional director, and insisted that Scott be terminated
because Scott had screamed and acted hostile to an HR employee. On the same
call, Meade informed Stern of Scott’s Charge of Discrimination.5 Shortly
thereafter, Schandorf told Scott of Meade’s decision and escorted her out of the
Hospital. Scott received a call the following day from an EmCare administrator
informing her that she was terminated. 6
4
References to “Doc. __” refer to the numbered docket entries in the district court record
of the case.
5
Meade then sent Stern an email reflecting his request that Scott be terminated because
of her behavior.
6
EmCare has contended that it did not, in fact, terminate Scott because the company
expected that she could continue to work at other EmCare facilities. But given that EmCare sent
Scott a letter stating that it was terminating their agreement and wishing Scott well in her future
endeavors, the evidence viewed in the light most favorable to Scott shows that she was
terminated from EmCare’s employment.
5
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EmCare claimed that it was required to remove Scott upon Meade’s demand.
EmCare’s contract with the Hospital provided that EmCare must remove an
employee from the Hospital immediately upon request by the Hospital’s CEO.
And under Scott’s contract with EmCare, she could be terminated immediately if
hospital authorities requested that she no longer provide services at their hospital.
B. Evidence Related to Scott’s Motion for a New Trial
We now set forth the evidence elicited at trial relevant to Scott’s motion for
a new trial, which centers on her claim that the jury erred in finding that the
Hospital was not her joint employer. There was evidence supporting that outcome.
Scott’s employment contract was with EmCare, 7 and EmCare was responsible for
setting and remitting her pay, providing her benefits, and withholding her taxes.
She was supervised by Schandorf, an EmCare employee. But Schandorf was also
the Hospital’s medical director and served on its medical executive committee.
Patients were billed separately for services provided by the Hospital and Scott, and
EmCare received the money for the services provided by Scott and other EmCare
physicians. In addition, EmCare provided her malpractice insurance as well as her
uniform.
But Scott introduced other evidence to show that she also had a relationship
with the Hospital. Her practice was limited to the Hospital and used the Hospital’s
7
The Hospital employed only one doctor—a psychiatrist—and contracted out to
companies like EmCare to provide all the other doctors.
6
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facilities as well as its diagnostic and treatment equipment. Scott also served on
several of the Hospital’s committees including the patient care review committee.
In addition, Scott regularly had contact with Hospital employees but claims that
she had contact with only one EmCare employee, Schandorf.
EmCare and the Hospital shared responsibility for hiring and overseeing
Scott’s work. Schandorf, an EmCare employee, initially reviewed Scott’s
qualifications and recommended that the Hospital interview her for a position. But
only Hospital administrators interviewed Scott for the position. Hospital
administrators and Schandorf worked together to handle complaints against
EmCare employees like Scott. Scott once was removed from the case of a
leukemia patient at a non-EmCare doctor’s request after she disagreed with the
doctor’s treatment plan. But a Hospital administrator testified that the Hospital
lacked the authority to terminate Scott.
There was additional evidence at trial about Scott’s termination, which, like
the evidence at summary judgment, showed that EmCare terminated Scott at the
request of the Hospital. Scott’s behavior had been a topic at prior Hospital staff
meetings. The concern was not with her clinical treatment but rather the way she
was interacting with patients and Hospital employees. Meade had previously
directed his concerns over Scott’s behavior to Schandorf. After Scott’s contentious
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meeting in HR, Meade called and then wrote an email to EmCare requesting that
Scott be removed from the Hospital.
C. Procedural History
After discovery, EmCare and the Hospital moved for summary judgment.
The district court granted EmCare summary judgment because even viewing the
evidence in the light most favorable to Scott, Scott had failed to demonstrate that
EmCare’s nondiscriminatory reason for firing her was pretextual. But the district
court denied the Hospital’s motion for summary judgment, so Scott’s claims
against the Hospital went to trial.
During trial, Scott attempted to offer testimony by Vasile, a former doctor at
the Hospital who would testify to her belief that she was mistreated by Meade
because of her gender. The Hospital argued this testimony was irrelevant to
Scott’s claims that she was discriminated and retaliated against by the Hospital.
The district court excluded the testimony on relevance grounds.
Ultimately, the jury found that the Hospital was not Scott’s employer and
returned a verdict in favor of the Hospital. Because the jury determined that the
Hospital was not Scott’s employer, it did not proceed to consider Scott’s
discrimination and retaliation claims.
Thereafter, Scott moved for a new trial under Federal Rule of Civil
Procedure 59. She alleged that the jury’s verdict was against the great weight of
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the evidence that the Hospital was her joint employer. She also asserted that the
district court’s exclusion of Vasile’s testimony warranted a new trial. The district
court denied her motion.
II. STANDARDS OF REVIEW
We review a district court’s grant of summary judgment de novo. Kernel
Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). Summary judgment
is appropriate when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
factual dispute exists where a reasonable fact-finder could find by a preponderance
of the evidence that the non-moving party is entitled to a verdict. Kernel Records,
694 F.3d at 1300. In determining whether evidence creates a factual dispute, a
court should draw reasonable inferences in favor of the non-moving party, but
“inferences based upon speculation are not reasonable.” Id. at 1301 (quotation
omitted).
A district court’s denial of a new trial is reversed only for abuse of
discretion. Ramsey v. Chrysler First, Inc., 861 F.2d 1541, 1544 (11th Cir. 1988).
Reversal under this standard is proper only when the court so clearly abused its
discretion that its action could be deemed arbitrary. FN Herstal SA v. Clyde
Armory Inc., 838 F.3d 1071, 1080 (11th Cir. 2016). The denial of a new trial is
proper when, after weighing the evidence, the district court cannot find that the
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verdict is contrary to the great weight of the evidence. Ramsey, 861 F.2d at 1544.
Deference must be given to the judgment of the trial judge, who observed the
witnesses and considered the evidence “in the context of a living trial.” Id.
Finally, we review a district court’s evidentiary rulings for an abuse of
discretion. Proctor v. Fluor Enter., Inc., 494 F.3d 1337, 1349 n.7 (11th Cir. 2007).
“To gain a reversal based on a district court’s evidentiary ruling, a party must
establish that (1) its claim was adequately preserved; (2) the district court abused
its discretion in interpreting or applying an evidentiary rule; and (3) this error
affected a substantial right.” Id. at 1349.
III. DISCUSSION
A. Summary Judgment
Scott appeals the district court’s grant of summary judgment to EmCare on
her retaliation claim. The court concluded that Scott had produced no evidence
that EmCare’s legitimate, nondiscriminatory reason for removing her from her
position at the hospital and terminating her were pretextual. We agree and affirm
the district court’s grant of summary judgment.
Title VII prohibits an employer from retaliating against an employee
because the employee “opposed any practice” made unlawful by Title VII. 42
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U.S.C. § 2000e–3(a). 8 Absent direct evidence of discrimination, when analyzing
claims for retaliation, we employ the framework set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Bryant v. Jones,
575 F.3d 1281, 1307 (11th Cir. 2009). Under this framework, the plaintiff must
first establish a prima facie case of retaliation. Id. In order to establish a prima
facie case of retaliation, a plaintiff may show that: (1) she engaged in a statutorily
protected activity; (2) she suffered a materially adverse action; and (3) she
established a causal link between the protected activity and the adverse action. Id.
at 1307–08. Once a plaintiff establishes a prima facie case of retaliation, the
burden shifts to the defendant to rebut the presumption by articulating a legitimate,
non-discriminatory reason for the adverse employment action. Id. at 1308. The
plaintiff then has an opportunity to demonstrate that the defendant’s proffered
reason was pretext for discrimination. Id. The plaintiff must also show that the
protected activity was a “but-for” cause of the adverse employment action. Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).
Here, Scott made out a prima facie case of retaliation against EmCare. 9 We
conclude that Scott engaged in a statutorily protected activity by filing a sex
discrimination charge against the Hospital with the EEOC. EmCare contends that
8
Decisions construing Title VII guide the analysis under the Florida Civil Rights Act.
Holland v. Gee, 677 F.3d 1047, 1054 n.1 (11th Cir. 2012).
9
There is no question that Scott suffered a materially adverse action when EmCare
terminated her employment.
11
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the Hospital was not Scott’s employer, so filing a charge against it was not a
protected activity. But Title VII makes it unlawful for an employer to
“discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment.” 42 U.S.C. § 2000e–2(a) (emphasis
added). Citing this language, we have extended Title VII to situations where a
defendant has interfered with an individual’s employment relationship with a third
party. See Pardazi v. Cullman Med. Ctr., 838 F.2d 1155, 1156 (11 Cir. 1988)
(concluding that Title VII covered a doctor’s claim that a hospital discriminated
against him in denying him privileges which interfered with his employment at a
separate corporation). Thus, Scott’s Charge of Discrimination against the
Hospital—even if ultimately unsuccessful at trial—was cognizable under Title VII,
so filing it was certainly a protected activity. See Rollins v. State of Fla. Dep’t of
Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (recognizing that Title VII
protects individuals from retaliation “regardless of the merit of [their] complaints
so long as [they] can show a good, faith, reasonable belief that the challenged
practices violate Title VII”). 10
We also conclude that Scott established a causal link between filing the
charges of discrimination and being terminated by EmCare. Close temporal
10
Nor does it matter that Scott’s “protected activity” related to the Hospital rather than
EmCare because Title VII covers all protected activity. See McMenemy v. City of Rochester, 241
F.3d 279, 284–85 (2d Cir. 2001) (concluding that Title VII protected an employee from
retaliation by a future employer for protected activity relating to his former employer).
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proximity between an employee’s protected conduct and the adverse action is
generally sufficient to create a genuine issue as to whether there is a causal
connection. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298
(11th Cir. 2006). The Supreme Court has indicated that the temporal proximity
between an employer’s knowledge of protected activity and an adverse action must
be very close. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Here,
Scott filed her Charge of Discrimination on September 23 and she informed her
EmCare supervisor of the charge ten days later on October 3. EmCare terminated
her employment the following day. The very close temporal proximity between
EmCare learning of Scott’s complaint and firing her sufficed to establish a causal
link.
Because Scott established a prima facie case of discrimination, the burden
shifted to EmCare to articulate a legitimate, non-discriminatory reason for firing
Scott. Bryant, 575 F.3d at 1308. EmCare explained that it terminated Scott at the
request of the Hospital because she acted inappropriately in HR. On October 3,
Meade called (and subsequently emailed) Stern requesting that Scott be removed
from the Hospital because of the way she treated an HR staffer.11 Pursuant to
11
Whether Scott actually behaved inappropriately in HR and mistreated an HR staffer is
disputed, but Scott does not dispute that Meade told Stern as much and requested her
termination. Nor does she dispute that Stern believed Meade’s explanation. We are not entitled
to second-guess non-discriminatory business judgments, even those potentially based on
erroneous facts. Flowers v. Troup Cty. Ga., Sch. Dist., 803 F.3d 1327, 1338 (11th Cir. 2015).
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EmCare’s contract with the Hospital, the company was required to accede to that
request. And pursuant to EmCare’s contract with Scott, EmCare was entitled to
terminate her at that time. The burden thus shifted back to Scott to demonstrate
that this reason was pretextual. Id. The district court concluded that she failed to
carry this burden.
On appeal, Scott raises two arguments why the district court was incorrect.
First, she points to a case in which the Seventh Circuit held that an Indiana law
permitting long term care residents to choose their providers did not override a
long term care facility’s obligation to follow federal nondiscrimination law where
the residents made race-based provider requests. See Cheney v. Plainfield
Healthcare Ctr., 612 F.3d 908, 914 (7th Cir. 2010). By analogy, she argues, a
contractual provision requiring EmCare to accede to the Hospital’s request to
remove her did not relieve it of the obligation not to retaliate against Scott for
engaging in a protected activity, especially since EmCare knew of the protected
activity here. Second, Scott directs our attention to a recent Fifth Circuit case
applying a Supreme Court decision on “cat’s paw” discrimination in the retaliation
context. See Fisher v. Lufkin Indus., Inc., 847 F.3d 752 (5th Cir. 2017) (citing
Staub v. Proctor Hosp., 562 U.S. 411 (2011)). Under a cat’s paw theory, which
this Court has recognized in other contexts, “an employer could be liable when the
decision-maker has no [retaliatory] animus but is influenced by a subordinate
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supervisor’s action that is the product of such [retaliatory] animus.” Sims v. MVM,
Inc., 704 F.3d 1327, 1335 (11th Cir. 2013). Here, Scott argues that EmCare was
essentially a cat’s paw for the Hospital and its retaliatory animus against her.
While these arguments are intriguing, Scott did not raise them or anything
resembling them before the district court, so she waived them. See Stavropoulos v.
Firestone, 361 F.3d 610, 616 n.6 (11th Cir. 2004) (“[Plaintiff] did not present this
theory to the district court when summary judgment motions were pending. . . .
Because [plaintiff] failed to properly present her [new] theory to the district court,
we decline to consider it on appeal.”), abrogated on other grounds by Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
Instead, Scott argued in her response to the summary judgment motion that
the close temporal proximity between her complaint and termination demonstrated
that EmCare’s reason was pretextual. Like the district court, we cannot agree in
light of EmCare and the Hospital’s contract and absent the cat’s paw theory Scott
brought up on appeal. “Provided that [an employer’s] proffered reason is one that
might motivate a reasonable employer, an employee must meet that reason head on
and rebut it.” Alvarez v. Royal Atl. Dev., Inc., 610 F.3d 1253, 1265–66 (11th Cir.
2010). “To show pretext, [an employee] must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could find
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them unworthy of credence.” Id. at 1265 (internal quotation marks omitted). In
relying on temporal proximity alone, Scott failed to adequately rebut EmCare’s
nondiscriminatory reason for firing her. Therefore, we affirm the district court’s
grant of summary judgment to EmCare.
B. Motion for a New Trial
Scott also appeals the district court’s denial of her motion for a new trial. In
this motion, she argued that the jury’s verdict that the Hospital was not her joint
employer was against the great weight of the evidence. The district court
disagreed, concluding that the verdict was supported by ample evidence. On
appeal, Scott contends that the district court abused its discretion in denying her
motion because the evidence at trial showed that the Hospital was responsible for
her hiring, supervision, and firing and that she performed integral hospital
functions. Although there was evidence at trial to support the conclusion that the
Hospital was Scott’s joint employer, there was also significant evidence to the
contrary. Thus, the district court did not abuse its discretion when it determined
that the jury’s verdict was not against the great weight of the evidence.
The first (and ultimately only) question before the jury was whether the
Hospital was Scott’s joint employer because only employers are subject to Title
VII liability. Cross v. Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995). Under Title
VII, an “employer” is defined as “a person engaged in an industry affecting
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commerce who has fifteen or more employees . . . and any agent of such a person.”
42 U.S.C. § 2000e(b). Title VII defines an “employee” merely as “an individual
employed by an employer[.]” 42 U.S.C. § 2000e(f). The Supreme Court has
recognized that Congress’s use of such a “nominal definition” to define the term
“employee” showed that Congress intended to “describe the conventional master-
servant relationship as understood by common-law agency doctrine.” Clackamas
Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444–45 (2003) (internal
quotation marks omitted).
We have recognized that multiple entities can serve as “joint employers” for
Title VII purposes. See Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1359–
61 (11th Cir. 1994) (upholding district court’s determination after bench trial that
two entities were joint employers). And we have liberally interpreted the term
“employer” consistent with Title VII’s purposes. Id. at 1359. As jointly requested
by the parties, the district court instructed the jury using the Eleventh Circuit’s
pattern joint employers instruction, which laid out 11 factors for them to consider:
Was Dr. Scott an employee of Doctors Hospital as well as an
employee of EmCare, Inc.? You should answer this question in
light of the economic realities of the entire relationship between
the parties based on the evidence.
Consider all the following factors to the extent you decide that
each applies to this case:
(a) the nature and degree of control over the employee
and who exercises that control;
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(b) the degree of supervision, direct or indirect, over
the employee’s work and who exercises that
supervision;
(c) who exercises the power to determine the
employee’s pay rate or method of payment;
(d) who has the right, directly or indirectly, to hire,
fire, or modify the employee’s employment
conditions;
(e) who is responsible for preparing the payroll and
paying wages;
(f) who made the investment in the equipment and
facilities the employee uses;
(g) who has the opportunity for profit and loss;
(h) the employment’s permanence and exclusiveness;
(i) the degree of skill the job requires;
(j) the ownership of the property or facilities where
the employee works;
(k) the performance of a specialty job within the
production line integral to the business.
Consideration of all the circumstances surrounding the work
relationship is essential. No single factor is determinative.
Nevertheless, the extent of the right to control the means and manner
of the worker’s performance is the most important factor.
Eleventh Circuit Civil Pattern Jury Instruction 4.25 (2013).
Considering these factors,12 the jury’s verdict was not against the great
weight of the evidence. The Hospital elicited ample evidence at trial that it was
12
“[T]his Circuit’s pattern instructions, while a valuable resource, are not binding law.”
United States v. Carter, 776 F.3d 1309, 1324 (11th Cir. 2015). This Court has previously
articulated a somewhat different set of factors to determine whether an employment relationship
exists in the Title VII context. See Pardazi v. Ullman Med. Ctr., 838 F.2d 1155, 1156 (11th Cir.
1988). But both parties requested the pattern joint employer instruction given here and both
parties frame their argument about the jury’s verdict around the pattern instruction. Therefore,
we will consider the evidence in light of this instruction. In any event, we believe that the factors
listed in the pattern instruction fairly target “the economic realities of the [employment]
relationship viewed in light of the common law principles of agency and the right of the
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not Scott’s joint employer. Testimony established that Scott’s immediate
supervisor, Schandorf, was an EmCare employee, who exercised control over her
consistent with factors (a) and (b). Indeed, complaints about Scott’s behavior were
directed to Schandorf. Moreover, it was EmCare, rather than the Hospital, that was
responsible for Scott’s pay, benefits, malpractice insurance, and taxes under factors
(c) and (e). Relatedly, EmCare billed patients for its doctors’ services, so only
EmCare could profit from or lose money on its doctors’ services pursuant to factor
(g). And while the Hospital had the power to order Scott’s removal, only EmCare
had the power to actually terminate her employment under factor (d).
Scott correctly points out that she elicited plenty of evidence that the
Hospital was her joint employer. The incident with the leukemia patient
demonstrated that the Hospital supervised her and controlled her activities, such as
which patients she could treat, consistent with factors (a) and (b). Before she was
hired, Scott interviewed with the Hospital—not EmCare—administrators under
factor (d). Relevant to factor (k), Scott was in the core group of doctors at the
Hospital, caring for patients and serving on hospital committees, both of which
were integral to the Hospital’s functioning. And the Hospital invested in, owned,
and provided the vast majority of the equipment and facilities that Scott utilized
employer to control the employee,” which is the ultimate inquiry when determining whether an
employment relationship existed. Cobb v. Sun Papers, Inc., 673 F.2d 337, 341 (11th Cir. 1982).
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under factors (f) and (j). Although Scott’s evidence was substantial, we cannot say
that the jury’s verdict was contrary to the great weight of the evidence given the
Hospital’s conflicting evidence.
Scott argues that a recent Fourth Circuit case concerning joint employers
demonstrates how badly the jury here misconceived the evidence. In Butler v.
Drive Automotive Industries of America, Inc., the Fourth Circuit ruled that a
manufacturer was the plaintiff’s joint employer as a matter of law even though she
was technically employed by a staffing company. 793 F.3d 404, 415 (4th Cir.
2015). Butler is similar to Scott’s case. For example, the Fourth Circuit found it
significant that an employee of the manufacturer “sent an email to . . . a[] [staffing
company] employee, directing that [plaintiff] be added to the list for replacement.
[The staffing company] then, after a delay, terminated [the plaintiff]. Although
[the staffing company] was the entity that formally fired [the plaintiff], [the
manufacturer] had effective control over [her] employment.” Id. Those events are
akin to Meade’s email to EmCare, which resulted in Scott’s firing. Also similar to
Scott, the plaintiff in Butler used the same equipment as the manufacturer’s
employees and produced the goods that were the manufacturer’s core business.
See id.
But there are important differences between the two cases. For example, the
manufacturer’s employees supervised the Butler plaintiff on the factory floor. See
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id. Here, Scott was supervised by an EmCare employee. Further, the Butler
plaintiff performed the same tasks as the manufacturer’s employees, whereas all
hospitalists like Scott were EmCare employees. Given these differences, Butler
does not convince us that the jury here rendered a verdict against the great weight
of the evidence.13 Cf. Ling Nan Zheng v. Liberty Apparel Co. Inc., 617 F.3d 182,
185–86 (2d Cir. 2010) (holding that joint employment determination was a
complex mixed question of law and fact properly determined by jury).
The relationship between Scott and the Hospital was complex and difficult
to classify. Both parties marshalled convincing evidence in support of their
positions, and the jury reasonably could have come to the opposite conclusion. But
deciding these hard questions “is precisely what juries are for.” J & H Auto Trim
Co., Inc. v. Bellefonte Ins. Co., 677 F.2d 1365, 1376 (11th Cir. 1982). We agree
with the district court that the jury’s verdict was not against the great weight of the
evidence, so the court’s denial of Scott’s motion for a new trial was not an abuse of
discretion. Ramsey, 861 F.2d at 1544.
13
Scott also directs our attention to Browning-Ferris Industries of California, Inc., in
which the NLRB updated its joint employment framework and determined that Browning-Ferris
was a joint employer of a staffing company’s employees. 362 N.L.R.B. No. 186, 22 (2015).
Like Butler, this NLRB case shares similarities with Scott’s case but also has some important
differences. In any event, the NLRB’s decision does not convince us that the jury in Scott’s case
rendered a verdict against the great weight of the evidence.
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C. Evidentiary Challenge
Finally, Scott appeals the district court’s decision to exclude Vasile’s
testimony as irrelevant. Before the district court, Scott argued that Vasile’s
testimony was relevant to her discrimination claim because Vasile was another
female doctor whom the Hospital treated differently than her male colleagues. On
appeal, Scott repeats this argument but also contends that Vasile’s testimony was
relevant to Scott’s argument that the Hospital was her joint employer because
Vasile would testify about the control the Hospital exercised over Vasile’s
employment. Scott did not make this latter relevance argument below, however,
and she is not entitled to adopt a new theory of relevance on appeal. See F.D.I.C.
v. Verex Assur., Inc., 3 F.3d 391, 395 (11th Cir. 1993) (“By well settled
convention, appellate courts generally will not consider an issue or theory that was
not raised in the district court.”). As to Scott’s argument that Vasile’s testimony
was relevant to the Hospital’s disparate treatment of women, Scott cannot
demonstrate that excluding Vasile’s testimony affected her substantial rights in
light of the jury’s verdict that the Hospital was not Scott’s joint employer. See
Proctor, 494 F.3d at 1349. Accordingly, we affirm the district court’s ruling.
IV. CONCLUSION
Upon review of the entire record on appeal, and after consideration of the
parties’ briefs, we affirm.
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Case: 16-10763 Date Filed: 06/08/2017 Page: 23 of 23
AFFIRMED.
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