single integrated enterprise theory and the other is the doctrine of simply standing but all three can basically be boiled down to whether or not a v h s can control dr perry's work and under this court's decision in burton v free to tell him how to do it john they didn't tell him how to be a doctor but they did tell him how to behave in the hospital how to interact with other use of and i would also suggest the opposing counsel might be able to better that of v h s investigated complaints against dr perry about how he was behaving in conducting himself in the hospital in also said that if they received more complaints against him they would terminate him they also provided the burden the freescale semiconductor the most fundamental question is whether or not they have the right to decide and insists on terminations in here not ok but i'm asking you free your reason is that  i'm sorry you say are you say in that that is sufficient to determine that they had an employee employer relationship the mere fact that they could terminate i would say that under burton v freescale semiconductor that could be sufficient i would say that we have more evidence as well including the fact that v a just could and did require him to treat certain patients and the v a just could and did prohibit him from trillian certain patients as well as your honor has acknowledged the most fundamental one is the right to terminate would demand terminations which is the undisputed that they had the ability and did exercise that ability with regard to dr perry but the other issue i would three elements to simply stand the st is whether or not the defendant is an employer under title seven the nd is whether there was some sort of employment relationship between the plaintiff and a rd party in this case and the final element is whether the defendant interfered with honor we didn't use the term simply standing but we did make the argument that all of the elements of the standing on there and under the th circuit precedent you don't have the plaintiff doesn't have to use the same legal terms the legal authority on the same words with labels in arguing to the district court the issue is whether or not it was presented to the district court and whether it was nuts or whether or not it was sufficient to prevent the district courts rule on the essential argument to be you can look at that subsection subsection a while what it prohibits is employers from discriminating against any individual it doesn't use the word employees then and so what that means and what the courts across the country have back to me is that individuals means more than just employees or outcomes for employees and the evidence for that is actually pretty strong if you even look at subsection eight to which uses the word employees and applicants for employees therefore under that is people who have been discharged as the text of a once us well because it doesn't say that and we have clarity in the other sections of title some but i'm sorry it does say that it says discharge any individual right whereas a two doesn't apply to discharged anybody a two applies to people have been limited segregated or classified so there's a very obvious textual distinction between them has nothing to do with individual employee it has everything to do with the verbs that is it's you failed to refuse to hire were discharged any individual which is not simply employees or applicants for employment it's also former employees well your honor i would bet direct you to the next clause in that section which says or otherwise discriminate against any individual which respects his terms compensation conditions or privileges unemployment because of such individuals race color religion or national origin again that doesn't have to do with hiring or firing or even the current state of point what it has to do what it is discrimination in somebody else's in an individual's employment in their hiring in their discharge i mean that is interesting so then but what do we do that that's an interesting distinction but what do we do with the umbrella cause and i don't know if that's a widely used phrase but when i say  what i mean is the stuff that comes before the sections so it shall be an unlawful employment practice for an employer and ash that i think is that i call that the umbrella clause which applies obviously to a one in the two and seems to be pretty clearly limited to the employment practices of the employer right so that would be a v h s is employment practices in your case right and so that's where the st element of simply standing comes in and why it's so important is that the employer that i title seven of what so to use our example picks would not be subject to simply standing because they don't have fifteen points so they're not in total seventy employer so the weeds that well but that is all just if that's true this all collapses back into but of course that wouldn't be an employment practice of the h s these of these doctors what it would be an employment practice of an employer under title seven to interfere with an individual's employment relationship with a rd party i that's what them by the course says and by definition the only employment practices that we can have are b s of these it's employees right i would disprove that your honor i would say that they could have an employment practice towards independent contractors towards employees and independent contractors to prohibit race discrimination in those kinds of practices if they have a policy of never working with any other groups that hire certain people take us employment practices of an employer but it would certainly be  and ninety nine is when the texas supreme court unanimously adopted a simply standing as the correct interpretation or as the interpretation of title suffer and in that case they go through the case law they go through the statute very carefully and they determined that because of the way the statutes phrased because of the words years of the difference between employee and individual they come up with the three elements that have outlined before it in the end be a just needs in this particular case and this isn't statues so i would just direct this court to look at the runnels decision from the supreme court of texas in terms of analysis one of why it does not conflict with the words why in fact i think it requires simply standing to be correctly appl discriminated against in the manner it was fraud because bear county did not have control or authority over job application procedures hiring advancement or discharges for the compensation things like that so what that means in my  resolved his case has to pronounce on this simply standing or not and this case since the pallies legal name is somewhat long i want this prefer to that entity as north central baptist or baptist obviously you all have read the briefing in this case and so i will use my time to respond to some of that discussion with mr waltz with regard to burton versus friesen freescale semiconductor the parties agree that that is the appropriate standard to apply and determining whether dr perry was an employee or an independent contractor but when you look at the facts of burton they are very different than the facts of this case in burton the individual was employed by a staffing agency at freescale semiconductor that his the individuals the mean age or with his staffing company was not even on side there was no interaction on the other hand the freescale manager actually went so far as to conduct performance reviews for the plaintive where here at mosed dr perry is saying that we counseled him a freescale also administered on the job disciplinary action to the individuals the so that case had a lot more facts than this one does and not surprising there it was concluded that freescale and the staffing company were going to employers is simply a doctor and standing argument quite frankly it was pretty frustrating when i received a palance brief generally and appellant's brief should not be a surprise from the summary judgment motion simply standing doctor earned more so than anything is the argument that has been waived if you look throughout the history of the case at all the times dr perry took the position from his complaint to his pleading that he was an employer are they he was an employee of baptist and that baptist was a joint employer with pics those are the only issues of independent contractor status dr perry opposed that request and then his response he recognized that if there was a determination that dr perry was an independent contractor and v h s baptist was not an employer that was dispositive of the title seven claims he did not say at that time oh but wa even if i'm not an employee i still have this claim under the sibling doctrine and then of course into his response to the motion for summary judgment which is what was before the district court he spent the entirety of his motion again arguing that baptist was his employer and and or his joint employer with pig there was absolutely no reference to any sort of alternative arguments that his title seven claim would serve by even if he was and depending contractor and you know with all due respect to mr walsh he is a board certified employment law attorney no i understand there is alina's leniency given when it's a pro se filing but there was no reason to not articulate those points when it was before the district court and so i believe it has been waived i would also like to point out in the bloom case that mr walsh decided to the the core in that case noted that the simply doctrine had really become questionable at best because of the underlying case wall this court noted that the simply case was decided by the d c circuit in and seventy three which was prior to the d c circuit at the top being the economic realities common law control test which is what the th circuit has adopted and which is what was applied by necessary when we apply the hybrid economic realities common law control test and god that's how i understand the analysis in bloom and there brief and he cited to several cases in his brief saying that hey this is been accepted by the courts there's one case out of the eastern district of texas where the court said oh well the th circuit hasn't ruled on it and so will fall away it the other two cases cited to by mr walsh it's  a stretch to say that it was adopted it was more of ok will assume this applies even still it doesn't matter in the case it's not dispositive to the case and so i think that those are argument about the waiver are you prepared to talk today about the statutory textual basis for the sibley doctrine well i would certainly feel more comfortable to s supplemental briefing on the if you and preparing our appellant brief i wanted to be cognizant of our page limitations and ensure that i addressed everything that actually was considered by the district court i have since done it and no measurable amount of research to try to understand the current status of this doctrine really doesn't have a place in our analysis now that we do have this common law right to control economic realities test that we get to the right conclusion using that test or you can certainly understand it that i hope that to as between the hybrid economic realities come along cold just as you described it in the statutory text simply taxes that case was decided by judge greg cost prior to his appointment to this court and you know he kind of touched upon i guess this policy argument of of what he described as being the independent contractor hole if you will that that when you look at the text of the statue it doesn't really cover independent contractors and what judge cost us said in that opinion is you know the independent contractor whole and federal anti discrimination law has long been criticized and congress has yet to enact a fix so i think that was an instance of judicial conservatism and that you know this this is a step too from congress and this is how it reads and so yes we as as advocates and as judges may be aware that there is a hole as it relates to independent contractor status but congress needs to fix that and then tell about point in time we need apply the law as it's written claim the the focus of dr perry's arguments before judge wright regis was that yes there is a contractual agreement between baptist and dr perry and he cited to a one page physician agreement that notably that he signed after applying for medical staff membership and privileges that baptist and  after he executed his agreement with pics and the reason that this is significant is that the exhibit a physicians agreement it originated out of the contractual agreement between baptist and picks and it with made part of a section related to medical staff membership all doctors whether you are an employee doctor or a just a doctor with privileges you have to obtain medical staff membership and clinical privileges to treat patients in baptist so in the one page  document dr perry basically acknowledged i'm an independent contractor i will abide by the standard of care by practicing good medicine and i will abide by the medical staff i a lot all of those things were already represented to by dr perry when he applied for medical staff membership and privileges in the bylaws which are part of the record in applying for that membership the applicant is certifying i have received the bylaws and i agree to comply with them i also agree to  be to abide by the standard of care and to be any good standing all of these basic requirements so that was already agreed to by dr perry when he made his application yes at the at the district court level dr perry's lawsuit against pics is pending with his section nine hundred and eighty one dollars claim all right and so if if we rule in this case the case automatically goes back to the district court to try the nine hundred and eighty one dollars case against the clinic is that the status of the proceedings after we decide and if the age is in the feared with the contract that the clinic heads for racial reasons it seems to me that there would be a state claim briefing and our contention that dr perry also waived this interference theory under section one thousand nine hundred and eighty one before the district court and in my mind the fact that he failed to that's pursued your organ now good comments and questions i appreciate it one thing that i think is very significant in this case is that  baptist had the right to request removal of a pix physician if baptists concluded that that physician would impacts quality of care for its patien and what was added to the agreement between hicks and baptist was that hicks was only required to comply if consistent with the bylaws and that's important because the owners and directors of pic's they were also physicians they were also also maintained medical staff membership and clinical curve logis at baptist and were equally bound by the bylaws which are part of the record and which include an anti discrimination provision so dr perry seems to suggest that if we don't change the law with regard to section one thousand nine hundred and one that baptists would just be free to discriminate against physicians which is not the case at least not in this particular agreement the pic's physicians insisted upon that inclusion meaning that they had to independently decide that baptists request was not inconsistent with those i laws which not only prohibited discrimination but also defined the types of conduct that could subject a patient to risk or inferior quality of care though i think that that right there was not entirely unqualified i have two minutes left in the final point that i would like to may is and i do think it's significant as the only cases in this circuit against an end of it will also employed by the same employer that employed the plaintiff and those cases the courts recognized that the actions and conduct of the individual employee could be treated as a central leave the same as the employer and that's a very different analysis then than what we're looking at this does the only time that the exercises started to terminate a physician is a pair that's correct your honor and that is on the record that this is the only time baptist test felt that the made simply because this was not a term employment agreement rather it just had a ninety day noticed period and said the decision was made to provide that ninety day notice  dr perry they exercised their right to provide him with the ninety days notice and he was paid for the entire ninety day period and he was terminated for no cost as that yeah we you know i guess as a general you know general notion in the employment world that the term for cause or without cause can mean very different things under at least my understanding of texas law is good and employment toward a very strong nation statutory and a supplanted common law claims of race discrimination that you might be able to read and so you couldn't alleging tortious interference of the contract on the basis of or that there's some kind of hole regarding that i just want to go back real quickly to the elements of simply standing who's three of all titles of an employer is the st one in employment in ship with a party in the defendant interfered with that employ were that employment opportunity so it wouldn't actually cover you if dr perry was found to be a completely independent contractor simply standing would not save him it would not fix this independent contractor hole because of the nd element which counsel over record and you had your hand on the steering wheel in the hands of the pleadings and the trial below or the proceedings below with judge rodriguez no where you're not showing up on appeal with these filed but i've been him going that sense that all right so the matter of whether or not sibley is preserved or not is a matter you know but did the lazy the strategic metaphor that council could identify with i just wanted to be clear whether he was appellant counsel and he took the record the way he found it and his articulating simply another matter based on what was there in other words he's a substitute driver as opposed to him getting in from the start and drive it in he lives or dies with the choices he made in terms of you know which way to drive it it just was that information question may save me some time from look at but that it wasn't meant to be dismissive we love having the lawyers dead hamlet down below because you know we get the straight answers that's all so anyway the briefing in the matine in the wall argument especially your responses to our courses will deem the case submitted will get decided as soon as we can thank you to both sides your excuse thank you very much  stay safe and happy holidays to you thank you thank you