area to do what she did well and based on all metrics that are in this record she did a really good job nonetheless she was discriminated against in numerous ways and her civil rights trampled on she should be afforded the fundamental right for joy to decide her claims one way or the other the marriage the conduct and the law support reversal so the jury can do what they're supposed to do but it was if she's an employee she's got a title seven claim but not if she's an independent contractor are one hundred percent correct on it very clear that the court supposed to look at the totality and the needs in the method of control that's what it was and when she went into it i mean the woman's an honest woman she signed agreements that independent contractors but this court has the right under the law to look at th circumstances to consider what she said as well as the label contained within the agreement but itself there's not sufficient itself as the test from all of the cases are that it's supposed to be a hybrid you supposed to look at the control the working relationship th and the means and manner method of the control that's was supposed to be looked at me and better understand what you said in response to judge wilson's question so our review is dunno but it is it's a summary judgment correct but it's a it can be a disputed factual issue whether someone is an independent contractor or an employee i agree with that you know yes i agree absolutely can be it can be disputed factual issue but the law is very clear that the court is supposed to make every inference in favor of of payment the type of the method of terminations the type of employment benefits controlled the manner in which and the right of control the really the the primary one i think it's right to control  frankly because that really is what the law is you look at these factors but at the end of the day it really comes down to means a matter of control who is controlling the situation whether you are truly an independent contractor making your own decisions or really you are bound by the company to do what they ask you to do and here there are so many and that really you look at the factors but at the end of the day again the last seems to be it is that you must examine the totality of the working relationship  the means in matter of control so let me walk through them if i can for your honor and i'll put them in the categories as i go through if that's ok with you please so st and foremost dr perry we do work full time for elsewhere i'm getting there but respectfully judge she couldn't lie she could have cloned herself because one she had and i compete and two based on the requirements of the obligations she had to to h m a and schumacher to be there not only for hours but to have have office hours and all the things she had to do it would have been impossible for her to do more than that and best the nine compete which is part of section five six she couldn't do it anyway so that really is kind of it just doesn't exist it's a looser respectfully that she could have worked elsewhere she could not have worked she just couldn't because there was no time in the day or night for her to fulfill the obligations and the control that they had over the payment arrangements that were the case when that mean that anyone who had and an independent contractor position for say sixty hours a week automatically not satisfy that factor it seems to me that's got that's fair and i think the nine compete portion of it goes hand in hand with that that makes it that makes it difficult but i agree with you if it was a loan just to have a lot of hours a week but that turned independent contractor necessarily into employee prosody not i mean that's serious something needs to be considered because we thought we can't work twenty four hours a day so let's be realistic but some of us try to sometimes but you know sixty hours is twelve a day time so i that's a lot so is it is it possible that that would that should not be i mean it's off enough yes i agree with you there  remained right because there's only guess one party and we felt at that point that it was better to see if we could get these claims to us it was a there was a lot more meat on the bones relative these claims and the one claiming as the one mary's are important factors of control and when this is now let's talk about the business side because i think that's critical judges as to this she was required to seek to schumacher control of the business side of her medical practice she had no control over the kind of payments to take medicaid whatever she had no control over that no participation in which reimbursement programs were to be used agree that schumacher would negotiate with these entities not her and they had and that she had no right to accept or reject these terms they were dictating have she was going to be paid which company she was going they were going to get monies from and how was going to work and she transfer all rights to receivables to schumacher which under garcia is another important element so financially she had absolutely zero control over her practice and the cases are cited by the by the apple e's the ashkenazi casey alexander case and cases like that there are scenarios where the doctor had control over his financial part of the of the package she had zero control over the financial aspect she had no financial autonomy all receivables that she left all receivables belonged to schumacher they also determine like i said how much money she was the discretionary bonus she had no ability to compete was schumacher five six so the medical agreement has the nine complete provision which we talked about a little bit which makes it clear that she could not engage in any other activity which would be in conflict with  e if she's working somewhere else it's in conflict she could not work elsewhere so if she was a superwoman which by the way she was and work sixty hours a week here even if she could find another thirty she couldn't have done it based on the way they tied her down well is more trying to cover themselves but the reality of what what it what it says she can't work that's the way i read it i mean if you read that if somebody comes to you or says can i go work there the answer is you've got a problem because in that force it so i believe schumacher had an obligation st off the in the environment that she was in was a hostile environment number one number two we have the situation here we have the disparate treatment that should be seat and these are it was really it was hand in glove schumacher nature made the agreement between schumacher nature may said you know what you have to tell us about any problems of the car any discrimination or anything schumacher told dr perry you don't tell a you tell us you're not to tell them about these problems you're supposed to tell us we don't want to jeopardize our contract that was the testimony it's in this record you don't do it and she didn't she abided by what she was told by schumacher the party that she contracted with they put her in an untenable position she did what they asked her to do and then when it's time in the terminator on the one hand him a says well gee we didn't know that that there was discrimination and then  white male she was an african american female his numbers were lousy her numbers were really good this is the metrics and this is in the complaint it's in the record he had communication problems presumably that she had communication problems they gave him eight months to try to figure out and fix the communication problems he had they didn't give dr perry think she told them about it she told about the issues two months before and one week after she used that the d word discrimination yes what she got fired not only that she was so bad that she had to do his job they asked her to write certain criteria and credentials for is h he couldn't do it white man african american woman he's lousy she's really good she's killin it he is it he gets eight months she doesn't get anything except a kick up the door that's the disparate treatment and that is right on point against my client respectfully your honor there is not in this particular case the operative pleading on which the final judgment was based at the district court level is the th amendment amended complaint yes but but let me tell you i'm a district judge yes or it happens to many times to count that there's a complaint it's got three counts there's a motion to dismiss one of the  counts i grant leave to amend if the point of comes back and replete the count that i just definitively rejected the point if is not going to be received well once i have definitively rule i have definitively rupe and it is a nightmare for everybody if the same climb gets put back an additional minute compliance the judge granted summary judgment on the  and one coin but finding there were no disputed facts i'm not sure how that finding could be made because it seems to me the record is full of disputed facts but once the summ judgment is entered it's not immediately appealable there's no fifty four dollars b judgment that ruling is appealable when the rule fifty eight dollars judgment is entered at the end of the case that's where we are now  round two because of her improper efforts at least that was the finding of the st panel to manufacture appellate jurisdiction but by honoring the stipulation that you agreed to i mean it's hard to blame them for the shenanigans when you sign the stipulation but so they were wrong they didn't get don't do it then why don't you do appeal now but your honor i would respectfully ask that you keep the defendant's the appellee separate we were not a party to this stipulation the schumacher group defendants had already been dismissed in the case we didn't have anything to do we were out this is the stipulation is between mr walsh's client that him a defendant and dr perry they were one day away from trial before judge steal my client were safely at home back in tampa we didn't we had we had no involvement in that stipulation so i do think that before there is a final consideration of this issue of the and eighty one claim we need to keep the appellee separate because our standing is very very different and in any event our position is that there there is even if we reach to the section one thousand nine hundred and one claim on the merits in this case with regard to the schumacher defendants the following are undisputed no no evidence of race discrimination no evidence of sex discrimination all of the record evidence a stablished that dr perry was supported by admired by and respected by everyone at the schumacher group all of the evidence or so called evidence in this case involved him a employees h others had made false claims against her on a racial basis there is evidence that you told that to naples h in may naples ha may said fire her so you know that there is a pretextual explanation being given that there is a reason to believe it's based on race and you fire i do not know that's ok i do not agree with that sequence in fact it's undisputed in the record your honor that my clients st learned on march twenty two at a dinner with dr perry and she and they asked they said please tell us more which nurses what are the details e mail to dr perry i'm still bothered about your comments that bobby ham hamilton has been making derogatory racial comments about you i know that you promised not to give us the names but i really feel that it's necessary to bring this forward it absolutely cannot be tolerated and i feel strongly and we need to have this investigated and handled would you reconsider there should be no threat to the parties that either heard the comments or were told the comments they would be protected and the response of dr perry is i simply am simply not in a position to provide the specific information so we now suffer the the cheekiness of dr perry's claim that we did not adequately investigate under circumstances where we had four business days to do so and dr perry said i'm not providing you the names of potential witnesses i'm not cooperating in your investigation so these the defendants in this case are radically different there's no pretext by the schumacher group we were signatories to an exclusive is doing a good job but we've got nurses that will not work with an african american woman we need to remover and schumacher said my i have to do what you say she's fired who wins that case in that case we have a duty to place him a on record that we believe racial discrimination is it is involved that we have a duty to investigate and to look into it however let's take a look at the realities she is working at h m a s hospital they own those premises those  if a jury could find that this case is just like my hypothetical then frankly i think your argument that she wouldn't tell us who she heard it from i think that goes nowhere if you have if the jury could find that you knew the reason they said get rid of this doctor was because she's african american i don't think you got any defense we didn't know that honor we knew that pam perry said these people treat me disrespectfully because of my race it's undisputed in the record that she never mentioned gender the st appearance of a gender claim was actually in the st complaint but she did she said i believe that this is racial but she did not give any examples and she would not give any names or any evidence but let me set this analysis up for you i think it gets analyzed and where i think the failure to investigate i think it's a cat's paw case when you have a person with racial animus nurse macallan or hamilton and they make a false allegation out of racial animus intended to get somebody fired and it works because nobody investigates then they've got a claim that's the stop case in the supreme court and there are some th circuit cases so when you say we don't have enough time to investigate i don't think you help yourself i think you've i think the fact that you insist that you did not investigate makes the cat boss cat spock your honor we were hampered in our ability to investigate by the sworn testimony that was confirmed by dr perry that she declined to provide any information my clients could have gone through the motions of an investigation but let's take a look at the mill you the mill you is this is somebody else's hospital these  somebody else's employees we placed him a on notice under title seven that was our duty and therefore under section nineteen one hundred and eighty one dollars which would follow title seven law that was our duty we did place them on notice their comment was she can't work here get her out of here remove her we have an absolute right in the contract so i believe that we had no ability practically or legally to say no she'll be here tomorrow you must keep dr perry you must let her see patients that's just foolishness but we could have placed her elsewhere and we promised that we would do that and she declined the offers all of this  undisputed in the record we made other offers to her she was to put it in the vernacular our prize pony we had this yale educated african american female doctor she was the best thing the schumacher group had ever had and we had and we said don't worry you fired her anyway we didn't fire her we we we said we'll remove her we can't stop you him may from not permitting her we're a recruitment company we don't own the hospital we don't the patients are not ours we are a recruiter and we placed her because we were customer preference the went out as a defense to racial discrimination cases in the mid sixty's i'm familiar with the airline cases in fact i i love the airline cases which establish that customer preference is not a defense to a side title seven case many of us remember the old texas air flight attendants who wore hot pants and their claims that went to the united states supreme court that customer preference would not require them to be treated from the male flight steward's this is not a customer preference case this is a contractual rights case but if i may i can see that i have used everyone's time i did want to point out that even if you find she's not an independent contractor there is no eviden that my client in gauged in intentional race or gender discrimination against dr perry and we should not lose sight that's what title seven requires intentional discrimination her testimony about vice president miss anderson vice president dr carlson and the head of nursing for schumacher kathleen one thousand the only people that she interacted with was they were respectful they treated me well they never discriminated against me she was their prized pony they attempted to place her elsewhere they were powerless contractually and practically to direct him may to continue to employ him a's hospital seeing him a's client that is not pretext your honor that is simply the reality of the relationship between these parties all my client could do was place the very qualified perry somewhere else something that she refused to tolerate and i know that i'm well out of time is there anything else that i should address at the request of the court of your girl or thank you it's a pleasure thank you theories develop them argued them not talk about the elements of the legal theories against has not shown what evidence or proof in the record relates to those elements and has not discussed cases or theory i mean that's the theory why the court was wrong below is because i mean that they agree if she's not an employee you win but if she's an employee then under that comma you can be liable for causing her to be let go insufficient to get to the merits and that was a case involving a passenger on a cruise ship she stepped in fell out of negligence climbing and there were two elements that the district court said were insufficient causation and damages on appeal she only about causation not damages courts are not going to deal with any of the substance because she has failed to present an argument and that's exactly what's happened here both in the brief and and today before this court i where it's a hospital in a doctor and if the hospital denies the privilege and gets the doctor fired the hospital can be liable that's this case well if she did not discuss that threw it out and i think  the burden of keller is you cannot use just to throw out a case without a discussion or identifying what the cause of action is i'm not clear what her cause of action is against us she mentions title seven at one point as title seven throws it out there and she mentions interference at some point what interference is not something she ever pled for seven years and six complaints she's never mentioned interference until now i don't understand being a fan i understood the theory to be she worked at this emergency room one day and the next day she didn't really work there the reason she didn't work there anymore is because she's african american and the person who made the decision  liable under title so well you've written a very good argument for their side but they didn't like that argument their argument against us is be ruffed any reasoning or discussion and it gets back to calne or an th we cited eighteen cases of this court that say unless you develop an argument you wait that you abandon it and they do not respond and there applaud brief they didn't mention any of those cases they had no answer for that so i don't see how you reach any kind of merits against my client and again today they didn't even make an effort supposedly they told h m a but maybe they didn't maybe they didn't because h m a says they were never told so for them to say we didn't do anything wrong it was incumbent upon them under their contract with they had under the law to do something they did nothing so for them to say and they called dr perry a prize pony and i'm not going to go there but they had an obligation to do something and they did nothing maybe they told him maybe they did if they didn't tell him make sure as heck implicates them a lot more than they want to say to your point because then they didn't do it and the testimony in this record is him a said if we childers who got eight months to try to figure it out this person was having meetings every week she was doing all these things to communicate and they're metrics for the best they've ever been they were number one in the entire him a system number one so that was the the pre they did nothing the problem with that argument that potentially is that if you're arguing that she was contracting with that threatens your employer and depend a contractor arguments well have it both ways on that i don't i don't i'm not sure i agree with you respectfully or whether i'm asking you to call up i think you can because we undertook the agreement says what it says it says this is an independent contractor agreement but that's not the test for this court to determine you have to look at the you determine that she was acting as an employee he then we've got is that there are still obligations that tach but regardless of what it says yes you look as an employee so i guess to some extent you do have it both ways i guess for all the reasons that have and the next case is richard harris and versus ma