*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5TH CIR R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-50587

Summary Calendar

VASILIOS A. KARAGOUNIS, M.D., Ph.D.,

Plaintiff-Appellant,

versus

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER

AT SAN ANTONIO; UNIVERSITY HOSPITAL

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-95-CA-799

January 5, 1999

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Vasilios A. Karagounis brought this Title VII action, alleging sex and

national origin employment discrimination, against defendants-appellants the University of Texas

Health Science Center at San Antonio (“UTHSC-SA”) and Bexar County Hospital District d/b/a

University Hospital (“District”). The district court granted summary judgment in favor of the

District, and a jury trial resulted in a verdict in favor of UTHSC-SA. Karagounis argues on appeal

that the district court should not have entered summary judgment for the District, that the district

court should have excluded certain exhibits at trial while admitting others, that the district court

committed reversible error in its response to a question asked by the jury, and that the district court
2

erred in denying his motion for a new trial. For the reasons set forth below, we AFFIRM the district

court’s decisions in this case.

FACTUAL & PROCEDURAL BACKGROUND

Karagounis was a fourth year general surgery resident at UTHSC-SA at the time of the

alleged incidents. By way of background, the general residency training program is a five year

program, with each year beginning in July and ending in late June. Prio r to becoming a fifth year

“chief” resident, fourth year “senior” residents are expected to score above the 40th percentile on the

American Board of Surgery In-Training Examination. Karagounis scored in the 38th percentile.

Residents who fell below the minimum score on the Board examinations were required to

undergo an oral examination. Karagounis’s oral examination was given by three teams of physicians.

The first team gave him a four, which was a failing grade. The second team initially gave him a five,

which was a conditionally passing grade, but after discussion decreased his grade to a four. The third

teamdid not give hima numerical grade, but instead informed him that he failed his oral examination.

At that point, Karagounis was told that he would be retained in the General Surgery residency

program, but that he would have to repeat his fourth year on a probationary basis, beginning in July

1995. 

 Karagounis’s first rotation during this probationary period was in vascular transplants. His

performance was rated as unsatisfactory by both faculty members running the rotation. As a result,

he was told in August 1994 that he was dismissed from the program, effective December 31, 1994.

He participated in two more rotations, in both of which his performance was considered

unsatisfactory. On December 31, 1994, Karagounis was officially discharged from UTHSC-SA’s

general surgery residency program.

In June 1995, Karagounis filed suit against UTHSC-SA and the District claiming that they

intentionallydiscriminated against himbyterminating himfromthe generalsurgeryresidencyprogram

because of his Greek national origin and his male gender. Both defendants-appellees filed motions
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for summary judgment. The district court granted summary judgment in favor of the District on the

grounds that this defendant was not Karagounis’s employer, but denied UTHSC-SA’s motion for

summary judgment. The remaining portion of the case went to trial, at the conclusion of which the

jury returned a verdict for UTHSC-SA Karagounis filed a motion for a new trial, which was

subsequently denied by the district court. This appeal followed.

DISCUSSION

I.

Karagounis first attacks the district court’s decision granting summary judgment to the

District on the ground that it was not his employer within the meaning of Title VII. To establish Title

VII liability on the part of a part icular defendant, Karagounis must prove, inter alia, that an

employment relationship existed between him and that defendant. See Deal v. State Farm County

Mutual Ins. Co., 5 F.3d 117, 118 (5th Cir. 1993).

One way to effectively bypass this requirement is to prove that the defendant in question is

sufficiently interrelated with another defendant. The plaintiff can show that the two defendants are

so integrated so as to be considered a “single employer.” See Radio and Televison Broadcast

Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255 (1965); Trevino

v. Celanese Corporation, 701 F.2d 397, 403-04 (5th Cir. 1983). The plaintiff can also show that the

defendant in question exercises such control over the labor relations of the other defendant that they

together should be considered “joint employers.” See Boire v. Greyhound Corp., 376 U.S. 473

(1964); Trevino, 701 F.2d at 403.

In this case, the District moved forsummaryjudgment and argued that it was not Karagounis’

employer for purposes of Title VII. The district court granted summary judgment after holding

Karagounis could not as a matter oflaw prove that the District and UTHSC-SA should be considered

a single employer. The court premised its ruling on our decision in Trevino v. Celanese Corporation,

701 F.2d 397, 404 n.10 (5th Cir. 1983) (citing Dumas v. Town of Mt. Vernon, 612 F.2d 974, 979
 

**

In Dumas, we set forth the governmentalsubdivision rule without explaining the rationale behind

it. See Dumas, 612 F.2d at 980 n.9. Three years later in Trevino, we offered some insight into our

reasoning by observing “[a]s articulated, the standard is not readily applicable to governmental

subdivisions, for it was ‘developed by the National Labor Relations Board to determine whether

consolidation of separate private corporations is proper in determining the relevant employer for

purposes of enforcing the National Labor Relations Act.’” Trevino, 701 F.2d at 404 n.10 (citation

omitted). Other judges have seen Dumasin a different light than we did in Trevino. See Lyes v. City

of Riviera Beach, 126 F.3d 1380, 1384-85 (11th Cir. 1997) (bound by Dumas but not Trevino),

vacated for en banc review, 136 F.3d 1295 (11th Cir. 1998); Massey v. Emergency Assistance, Inc.,

724 F.2d 690, 692 (8th Cir. 1984) (Lay, C.J., dissenting).

4

n.9 (5th Cir. 1980)), in which we held that the single employer theory was not applicable when one

of the defendants in question was a governmental subdivision.**

On appeal, Karagounis effectively concedes he must rely upon one of the three aggregation

theoriesto have the District considered an employer. He also concedes the district court was correct

to foreclose his single employer argument. However, Karagounis argues the district court did not

consider his theory that the District and UTHSC-SA should be considered joint employers under the

Boire doctrine. He submits that our decision in Trevino only applies to the single employer theory

and not to the joint employer doctrine. 

We disagree. It is important to remember that the two theories are very closely related.

When determining whether two defendants should be considered a single employer, we look to four

factors: (1) interrelation of operations; (2) centralized control of labor relations; (3) common

management; (4) and common ownership or financial control. See Trevino, 701 F.2d at 404. The

second factor of this inquiry is by far the most important. See id. Similarly, when determining

whether two defendantsshould be considered a joint employer, we look to the control one defendant

has over the other’s labor relations. See, e.g., Triche v. Crescent Turnkey & Engineering, No. Civ.

A. 97-2657, 1998 WL 139986, at *1 n.3 (E.D. La. March 25, 1998). In other words, the core

analysis of these two inquires are virtually identical. See, e.g., Mochelle v. J. Walter Inc., 823 F.

Supp. 1302 (M.D. La. 1993). Given the similarities between the two, we are constrained by Trevino

to hold that the governmental subdivision rule we applied within the single employer doctrine also

appliesto the joint employer theory. To hold otherwise would, in effect, allow an end run around the
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precedent we established in Dumas and Trevino. We therefore affirm the district court’s grant of

summary judgment.

II.

Karagounis next argues that the district court erred in admitting three resident evaluation

forms prepared by UTHSC-SA faculty after the decision to dismiss him had been made. We review

evidentiary rulings for abuse of discretion, see, e.g., Big John, B.V. v. Indian Head Grain Co., 718

F.2d 143, 146 (5th Cir. 1983), and will reverse only if the error caused substantial prejudice. See,

e.g., Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990). We affirm. Karagounis was

permitted to argue to the jury that these evaluations were unreliable because of the date they were

prepared. On these facts, we cannot say the admission of this evidence caused substantial prejudice

to Karagounis. 

III.

Karagounis also contends that the district court erred in responding to a question posed by

the jury during its deliberations. The jury sent the following question to the district court:

What date was the lawsuit presented to the UT Health Science Center at S.A.?

The district court responded to this question with the following reply:

Your question, “What date was the lawsuit presented to the UT Health Science

Center at S.A.” seeks information that is not relevant to any factual issue that you

must determine in this case. Again, please follow the instructions given to you by the

Court.

Although conceding that a direct answer to this question – June 28, 1995 – would not have helped

his case in any way, Karagounis suggests that we can infer that the jury was posing this question so

asto better evaluate the veracity ofthose who prepared his post-dismissalresidency evaluations. On
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appeal, therefore, Karagounis appearsto argue that the district court’sresponse should have been to

provide not only the answer to the jury’s question, but additional information which the jury had not

directly asked for but could reasonably be expected to desire.

We need not reach this issue. UTHSC-SA correctly observes that Karagounis did not object

on the ground that the response should have been to provide the correct answer. Rather, he objected

on the ground that “a neutralresponse should be given that they are to follow evidence as they heard

it without commenting on relevance or non-relevance of the evidence.” In confining his objection to

the “neutrality” of the district court’s response, he waived his objections as to the substance of the

district court’s response. See, e.g., First National Bank of Louisville v. Lustig, 96 F.3d 1554, 1571

n.14 (5th Cir. 1996). On appeal, Karagounis does not contest the district court’s decision to overrule

his “neutrality” objection, and that too is therefore waived. See, e.g., Melton v. Teachers Ins. &

Annuity Assoc. of America, 114 F.3d 557, 560 (5th Cir. 1997).

IV.

Karagounis also submits that the district court erred in admitting two resident evaluation

summaries prepared by the director of the residency program because they were not factually

accurate. In making this claim, Karagounis relies on our decision in Wright v. Southwest Bank, 554

F.2d 661 (5th Cir. 1977) in which we remanded a grant of summary judgment on the ground that the

summaries relied upon by the district court were incompetent. However, Wright is inapplicable to

the case at bar. In Wright, the district court judge relied on evidence submitted to the court three

weeks after the bench trial was concluded. See id. at 662. More importantly, the evidence was

submitted ex parte, meaning that the plaintiff was never provided the opportunity to test the

competency of the relied upon evidence. See id. In contrast, Karagounis was provided ample

opportunity to test the accuracy of the submitted evidence in the district court. Furthermore, after

reviewing the factual claims made by plaintiff on appeal, we cannot say the district court abused its

discretion in admitting this evidence. We therefore affirm.
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V.

Karagounis further claims that the district court erred in excluding as testimony a portion of

an audio taped conversation between himself and Dr. J. Bradley Aust, which Karagounis covertly

recorded. He did not attempt to admit this excerpt during the case-in-chief, but instead attempted

to do so during the rebuttal portion of the trial. The most relevant portion of the conversation

Karagounis points to as evidence of direct discrimination is Aust’s statement that:

So really, I need to have you tell me, what can I do to help you find something else?

Are you going back to Greece? Are you going to find another spot here? What are

you going to do? What can we do to help you? I don’t think you should be in

surgery. That’s my view. On the basis of what the rest of the faculty tells me. I’m

very concerned.

The district court did not abuse its discretion in excluding this testimony. While it has a reference to

the plaintiff’s national background, in context the statement is innocuous and not evidence of

discrimination. In particular, we note that Aust immediately followed his question of whether

Karagounis was planning to return to Greece with a question of whether he was planning to stay in

America. If anything, the statement in its entirety shows Aust’s honest assessment of Karagounis and

his ultimate concern for Karagounis’ placement after he left the residency program. On these facts,

we cannot say the district court’s decision substantially prejudiced Karagounis’ case.

VI.

Finally, Karagounis argues that the district court erred in denying his motion for a new trial.

We will reverse a district court’s decision denying a new trial motion only if the court abused its

discretion or misapprehended the law. See, e.g., Dixon v. International Harvester Co., 754 F.2d 573,

586 (5th Cir. 1985). Karagounis’ argument is premised on the claim that counsel for UTHSC-SA

fraudulently talked his attorney out of playing audio tapes of conversations between himself and

several UTHSC-SA faculty members. He offers no support for this claim except his personal

suspicions. As the district court correctly observed, plaintiff neither explains how defense counsel
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fraudulently induced his attorney, nor specifies the basisfor his allegations. Karagounis only cites to

the fact that his attorney decided not to play the audio tapes after a conversati on with defense

counsel.

The district court certainly did not abuse its discretion in refusing to presume a conversation

between two licensed attorneys contained fraud. As such, we dismiss this claim as entirely without

merit, and affirm the district court’s decision to deny the new trial motion without an evidentiary

hearing.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s decisions.