             Case: 16-10763    Date Filed: 06/08/2017   Page: 1 of 23


                                                             [DO NOT PUBLISH]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)
                Case: 16-10763       Date Filed: 06/08/2017       Page: 2 of 23


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
                Case: 16-10763         Date Filed: 06/08/2017     Page: 3 of 23


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
              Case: 16-10763    Date Filed: 06/08/2017   Page: 4 of 23


      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



                                          4
                Case: 16-10763        Date Filed: 06/08/2017       Page: 5 of 23


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
              Case: 16-10763      Date Filed: 06/08/2017    Page: 6 of 23


      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
              Case: 16-10763    Date Filed: 06/08/2017    Page: 7 of 23


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




                                           7
              Case: 16-10763     Date Filed: 06/08/2017   Page: 8 of 23


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



                                          8
              Case: 16-10763    Date Filed: 06/08/2017    Page: 9 of 23


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



                                          9
             Case: 16-10763      Date Filed: 06/08/2017    Page: 10 of 23


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




                                           10
               Case: 16-10763       Date Filed: 06/08/2017      Page: 11 of 23


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
               Case: 16-10763        Date Filed: 06/08/2017       Page: 12 of 23


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).


                                                12
              Case: 16-10763       Date Filed: 06/08/2017      Page: 13 of 23


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).


                                              13
             Case: 16-10763      Date Filed: 06/08/2017    Page: 14 of 23


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



                                           14
             Case: 16-10763     Date Filed: 06/08/2017    Page: 15 of 23


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



                                          15
             Case: 16-10763     Date Filed: 06/08/2017    Page: 16 of 23


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



                                          16
             Case: 16-10763      Date Filed: 06/08/2017    Page: 17 of 23


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;

                                           17
               Case: 16-10763        Date Filed: 06/08/2017        Page: 18 of 23


               (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


                                                 18
              Case: 16-10763       Date Filed: 06/08/2017      Page: 19 of 23


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).


                                              19
             Case: 16-10763     Date Filed: 06/08/2017    Page: 20 of 23


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



                                          20
               Case: 16-10763       Date Filed: 06/08/2017       Page: 21 of 23


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.


                                               21
             Case: 16-10763     Date Filed: 06/08/2017   Page: 22 of 23


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.



                                          22
    Case: 16-10763   Date Filed: 06/08/2017   Page: 23 of 23


AFFIRMED.




                              23
