UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ RAFIK BENAISSA, M.D., Plaintiff - Appellant/ Cross- Appellee,

v. SALINA REGIONAL HEALTH CENTER, INC., Defendant - Appellee/ Cross- Appellant. Nos. 20-3236 & 21-3015 (D.C. No. 5:19-CV -04080-HLT-ADM) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, MORITZ , and ROSSMAN , Circuit Judges.

________________ _________________ The primary issue in these appeals is whether Rafik Benaissa, M.D., was an employee of Salina Regional Health Center , Inc. (SRHC) within the meaning of Title VII of the Civil Rights Act of 1964 and Kansas law. The district court concluded he was not and therefore granted summary judgment to SRHC on Dr. Benaissa’s Title VII and state-law claims. Dr. Benais sa appeals that judgment,

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 2, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 12 and SRHC cross-appeals the district court’s denial of its motion fo r attorney’s fees. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in each appeal.
I. BACKGROUND Dr. Benaissa is an Arab Muslim male and a board-c ertified orthopedic surgeon. He performed physician services at SRHC from February 1, 2018 through January 31, 2019. SRHC obtained his serv ices by contracting with one of its third-party vendors, LocumTenens.com (LT). 1 LT assigned Dr. Benaissa to SRHC for orthopedic coverage while SRHC sear ched for a permanent surgeon. In December 2018, SRHC gave LT thirty da ys’ written notice (as required by its contract with LT) that it no longer wished to schedule Dr. Benaissa’s services. After Dr. Benaissa’s relationship with SR HC ended, he filed a charge against SRHC with the Equal Employment O pportunity Commission (EEOC) alleging discrimination and retaliation. The EEO C dismissed the charge for lack of jurisdiction because there was “no employ ee/employer relationship.” Aplt. App. at 77 (boldface omitted). Dr. Benaissa then filed a civil acti on against SRHC seeking actual and punitive damages. He asserted Title VII claims of di scrimination based on race, religion, and national origin, and a claim of retaliation under Kansas law. In his retaliation claim, Dr. Benaissa alleged that members of SR HC’s medical staff used a peer-review

1 The term “locum tenens” is defined as “one filling an office for a time or temporarily taking the place of another—used especially of a doctor or clergyman.” Merriam-Webster.com Dictionary , “locum tenens,” https://www.merriamwebster.com/dictionary/locum%20tenens (last visited Nov. 15, 2021). Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 23 process to retaliate against him for referring patients to surgeons outside of SRHC and for expressing his concerns that SRHC was violating standards of care. SRHC filed a motion for summary judgment, argui ng all claims failed because SRHC was not Dr. Benaissa’s employer. The district court granted summary judgment to SRHC on all claims. Having prevailed on the merits, SRHC s ought attorney’s fees under 42 U.S.C. § 2000e-5(k). The district court deni ed SRCH’s motion fo r attorney’s fees.
II. DISCUSSION A. Appeal No. 20-3236 (Merits)
1. Standard of review We review de novo a dist rict court’s decision to grant summary judgment, applying the same standard as the district court. Knitter v. Corvias Mil. Living, LLC , 758 F.3d 1214, 1224 (10th Cir. 2014). We view all fact s and evidence in the light most favorable to the party opposing summa ry judgment, “resolv[ing] all factual disputes and reasonable inferences in [that party’s] favor.” Id. (internal quotation marks omitted). Summary judgment is proper if “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).
2. Title VII claims As relevant here, Title VII makes it unl awful for an “employe r” to “discharge” or “discriminate against any individual w ith respect to his co mpensation, terms, conditions, or privileges of employment, because of such individual’s race, . . . Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 34 religion, . . . or national or igin.” 42 U.S.C. § 2000e-2(a )(1). Title VII defines an employer as “a person engaged in an indus try affecting commerce who has fifteen or more employees.” Id. § 2000e(b). And an “employee” is defined as “an individual employed by an employer.” Id. § 2000e(f). Thus, to make out a prima facie case of Title VII discrimination, “a plaintiff mu st first prove the defendant was [his] employer.” Knitter , 758 F.3d at 1225. The failur e to meet that burden means the “discrimination . . . clai ms necessarily fail.” Id. We review legal questions de novo, such as “the legal test to determine the definition of ‘employ ee’ under Title VII.” Id. “Whether an enti ty actually satisfies this definition under the appropriate test, however, is a fact is sue for the jury.” Id. (internal quotation marks omitted). Noneth eless, the question ma y be resolved on summary judgment if, when viewing the f acts in the light most favorable to the plaintiff, a court can say that no reasona ble jury could find the plaintiff was the defendant’s employee. See id. at 1228. In assessing the Title V II claims, the district court applied a multi-factor “hybrid test” typically used in federal anti-discrimin ation cases to distinguish employees from independent contractors. See Lambertsen v. Utah Dep’t of Corr. , 79 F.3d 1024, 1028 (10th Cir. 1996) (describing hybrid test ). The hybrid test focuses on “the employer’s right to control th e means and manner of the worker’s performance.” Id. (internal quotation marks omitted). But the test also considers other factors, including: Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 45 (1) the kind of occupation at issue, with reference to whether the work usually is done under the di rection of a supervisor or is done by a specialist without supervision; (2) the skill requi red in the particular occupation; (3) whether the employer or the empl oyee furnishes the equipment used and the place of work; (4) the length of time the individual has worked; (5) the method of payment, whether by time or by job; (6) the manner in which the work relationship is termin ated; (7) whether annual leave is afforded; (8) whether the wo rk is an integral part of the business of the employer; (9) whether the worker accumulates retirement benefits; (10) whether the employer pays social se curity taxes; and (11) the intention of the parties. Id. “No single factor is conclusive. Rather , the courts are to l ook at the totality of circumstances surrounding the working relationship between the parties.” Id. The district court first determined th e following facts were “inconsistent with employee status,” Aplt. App. at 178: Dr . Benaissa was a highly skilled, experienced, board-certified orthopedic surgeon who was licensed in eleven states. He “agree[d] that he had complete autonomy in determining what work needed to be done for his patients.” Id. SRHC had written employment agreements with “ all its employed physicians,” but no “written employment ag reement with” Dr. Benaissa; “the only written contract” was between SRHC and LT “f or the provision of services by [LT’s] independent contractors.” Id. SRHC had contacted LT “about a short-term placement for an orthopedic surgeon,” and Dr . Benaissa performed services at SRHC for one year before SRHC “terminate[d] its scheduled servic es with [him].” Id. LT paid him; SRHC did not. SRHC did not provi de him with “any benefits . . . such as health and dental insurance, retire ment benefits, or paid time off.” Id. And both SRHC and Dr. Benaissa treated his “taxes as if [he] was an independent contractor.” Id. Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 56 The district court further concluded th at Dr. Benaissa’s use of SRHC’s “tools and premises for his work” was “not a reliab le indicator of employee status in this case” because the “use of such items is inhe rent in the medical fi eld,” regardless of whether a doctor is a hospital employee “‘or simply has privileges at the hospital.’” Id. at 179 (quoting Cilecek v. Inova Health Sys. Servs. , 115 F.3d 256, 262 (4th Cir. 1997)). Equally unreliable as an indicator of employee status, the district court concluded, was the fact that Dr. Benaissa’s work was part of SRHC’s business, because the same would be true of both an employed physician and one “who simply has privileges at [SRHC].” Id. The district court also observed that although SRHC contacted LT about the covera ge it needed and therefore controlled the number of hours Dr. Benaissa could work, Dr. Benai ssa was free to turn down shifts. And although Dr. Benaissa worked exclusivel y for SRHC during the one-year period, there was no evidence he could not have wo rked elsewhere, and he “was licensed in several states and had privile ges at other hospitals.” Id. at 180. The district court found Dr. Benaissa’s additional arguments unpersuasive. His contentions that SRHC c ould assign additional work or that he was paid per shift or assignment lacked record support. The duration of Dr. Benaissa’s time at SRHC (one year) was not “a particul arly enduring relationship,” and it was “undisputed that [SRHC] used a locum [tenens] provider while it searched for perm anent coverage for the position.” Id. That Dr. Benaissa c ould not hire or fire anyone suggested he was

not an employee, as did the requirement th at SRHC provide LT with thirty days’ advance notice to terminate his se rvices rather than being able to do so itself directly. Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 67 Dr. Benaissa contests several aspects of the district court’s ruling. He first argues that instead of the hybrid test, th e district court should have applied a sixteen-factor test set out in the EEOC’s Complian ce Manual, because the Supreme Court endorsed that test in Clackamas v. Gastroenterology Associates, P.C. v. Wells , 538 U.S. 440, 448-49 (2003). He asserts that five of the Compliance Manual’s sixteen factors are not part of the hybrid test and “crucial” to his case, but he addresses only two of those fi ve factors: “whether th e work is performed on the employer’s premises” and “whether the work er hires or pays assistants.” Aplt. Opening Br. at 16. The district court rejected Dr. Benais sa’s suggestion to use the EEOC test because its factors were subs tantially similar to those of the hybrid test and this circuit has endorsed the hybrid te st. We agree with the dist rict court’s decision. The Compliance Manual lists “16 factors—taken from [ Nationwide Mutual Insurance Co. v. Darden , 503 U.S. 318, 323-24 (1992)]—that ma y be relevant to ‘whether the employer controls the means and manner of the worker’s work performance.’” Clackamas , 538 U.S. at 449 (quoting EEOC Compliance Manual (2000) § 605:0008 & n.71). Darden referred to this test as “a co mmon-law test for determining who qualifies as an ‘employee’ under [the Empl oyee Retirement Income Security Act].”
503 U.S. at 323. Discussing Darden in the Title VII context, we have “agree[d] with the Second, Eighth, and Ninth Circ uits that there ‘is little discernible difference between the hybrid approach and the co mmon law agency approach.’” Lambertsen , 79 F.3d Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 78 at 1028 (brackets omitted) (quoting Frankel v. Bally, Inc. , 987 F.2d 86, 90 (2d Cir. 1993)). In Frankel , the Second Circuit explained th at both approaches emphasize “the hiring party’s right to control th e manner and means by which the work is accomplished” but also “consider a non-exhaustive list of factors as part of a flexible analysis of the ‘totality of the circumstance s,’” and “no one factor [is] decisive.” 987 F.2d at 90 (internal quotation marks omitted); accord Clackamas , 538 U.S. at 448 (agreeing with the EEOC that “the common-law element of control is the principal guidepost” in “distinguishi ng between servants and independent contractors”). Although Lambertsen and Frankel predate Clackamas , we have continued to recognize the hybrid test post Clackamas in determining whether an individual is an employee or an independent contractor. See, e.g. , Knitter , 758 F.3d
at 1226. 2 Indeed, Dr. Benaissa cites no case holding that Clackamas ’s discussion of the EEOC Compliance Manual displaces the hybr id test, and we decline to conclude so today. Alternatively, even if th e district court should have used the sixteen factors listed in the EEOC Compliance Manual rather than the hybrid test’s eleven factors, the court in fact addressed the two fact ors from the EEOC test that Dr. Benaissa focuses on here and explained why they did not support that he was SRHC’s

2 We did not recently recognize the applicability of Clackamas in Bowles v. Grant Trucking, LLC , 842 F. App’x 236 (10th Cir. 2021) , as Dr. Benaissa contends. In Bowles , we determined that “[w]e need not decide whether and to what extent Clackamas applies to the facts of this case b ecause it would not af fect the ultimate determination of whether the [Americans w ith Disabilities Act] applies to [the employer].” Id. at 241-42 (emphasis added). Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 89 employee. The first such factor is wh ether Dr. Benaissa performed the work on SRHC’s premises. But this factor is part of the hybrid test. See Lambertsen , 79 F.3d at 1028 (listing “whether the employer or the employee furnishe s the . . . place of work” as the third factor in the hybrid test). We agre e with the district court’s conclusion that use of hospital premises “is inherent in the medical field” and therefore “not a reliable indicator of employee status in this case.” Aplt. App. at 179 (citing, inter alia, Tsosie v. United States , 452 F.3d 1161, 1164 (10th Cir. 2006), where this court explained that use of a hospital’s phys ical facilities “favors ‘employee’ status” under the te st used to evaluate Federa l Tort Claims Act claims, “but unremarkably so,” because whether serving “either as an independent contractor or a full-fledged employee . . . it is expected that [a phys ician] will make full use of the hospital’s physical facil ities during the course of [the physician’s] service”) (emphasis added)). The other EEOC-test factor Dr. Benaissa addresses, whether the worker hires or pays assistants, is not among the hybrid test’s factors, but the district court concluded Dr. Benaissa’s inab ility to hire or pay assist ants “seems [to] support[] a determination that [he] was not an employee,” id. at 180 (emphasis added). Dr. Benaissa offers no argument regarding th e district court’s conclusion, and we see no reason to disturb it. Relatedly, Dr. Benaissa contends the EEOC Compliance Manual recognizes that a worker may be an employee of two different employers, wh ich he claims is important because he was paid by a third part y, LT. But in the district court, he Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 910 merely mentioned this possibl e “joint employer” or “singl e employer” theory without developing any argument. 3 And he has not argued for plain-error review in this court. Therefore, he has waived any “joi nt employer” or “singl e employer” theory. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its appl ication on appeal . . . surely marks the end of the road for an argument for reversal not first presented to th e district court.”); Harrell v. United States , 443 F.3d 1231, 1233 (10th Ci r. 2006) (concluding that argument undeveloped in district c ourt was not preserved for appeal). Dr. Benaissa next argues the district court placed too much weight on the fact that he is an orthopedic su rgeon. We disagree. One of the hybrid test’s factors is “the skill required in the particular occupation.” Lambertsen , 79 F.3d at 1028. The district court properly consider ed that Dr. Benaissa is an “orthopedic surgeon, which is a highly skilled occupation th at is performed by specialists .” Aplt. App. at 177-78. But the court also concluded the “most important[]” factor was Dr. Benaissa’s undisputed “ complete autonomy in determining treatment deci sions for his patients.” Id. at 181. Thus, the court did not place undue weight on Dr. Benaissa’s occupation but properly considered it as one of ma ny factors that inform the hybrid test’s

3 “Under the joint employer test, two entitie s are considered joint employers if they share or co-determine those matters governing the es sential terms and conditions of employment.” Knitter , 758 F.3d at 1226 (internal q uotation marks omitted). “[T]he single employer test permits a plaintiff who is th e employee of one entity to hold another entity liable by arguing that the two entities effectively constitute a single employer.” Id. (internal quotation marks and el lipsis omitted). The focus and supporting factors for each of these tests differs from thos e used in the hybrid test. See id. at 1226-27 (describing and di stinguishing the three tests). Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1011 primary concern with “the em ployer’s right to control th e means and manner of the worker’s performance,” Lambertsen , 79 F.3d at 1028 (internal quotation marks omitted). Dr. Benaissa claims the district court erred in de termining his “relationship with [LT] precluded him from being an em ployee of SRHC.” Aplt. Opening Br. at 17. He points out that according to the EEOC Compliance Manua l, just because “a worker is paid by a temporary agency or similar entity does not preclude him from being an employee of the entity for w hom he is actually performing work.” Id. To the extent this suggests LT and SRHC were joint employers, this argument is waived for reasons explained above. To the ex tent it suggests th e district court misunderstood the role that third-party pa yment plays in a hybrid -test analysis, the argument fails. The district court did not c onclude that the fact LT paid Dr. Benaissa precluded employee status; the court instead considered that fact among others that were “inconsistent with empl oyee status”: SRHC provid ed him no benefits, and both parties treated Dr. Benaissa’s taxes as if he “was an independent contractor”—SRHC “did not withhold any [employment] taxes,” Dr. Benaissa “attested in his tax returns that his income derived from his sole proprietorship ,” Aplt. App. at 178, and he “claimed $224,727.00 in busin ess-related expenses for hi s sole proprietorship during the year he provide services for [SRHC],” id. at 175. That was proper. 4

4 To the extent Dr. Benaissa relies on Jaffrey v. PorterCa re Adventist Health System , No. 15-cv-02297-NYW, 2017 WL 12 30469 (D. Colo. Apr. 4, 2017) (unpublished), as an example of a disc rimination case involving a locum tenens physician, we note that whether Dr. Jaffr ey was an employee under any multifactor Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1112 Dr. Benaissa argues that SRHC’s c onversion of his hospital privileges from locum tenens privileges “to permanent status ” weighs in favor of concluding he was SRHC’s employee. Aplt. Opening Br. at 18. 5 The district court acknowledged this change in privileges, see Aplt. App. at 174-75, but it did not expressly consider the change when applying the hybrid test. The court did, however, c ite cases concluding that a physician was not a hospital em ployee despite having hospital practice privileges. See id. at 181 (citing, inter alia, Levitin v. Nw. Cmty. Hosp. , 923 F.3d 499, 501 (7th Cir. 2019) (“[A] physician with hospital practice privileges is not the hospital’s employee merely because he is subject to peer review.”), and Cilecek , 115 F.3d at 262 (concluding that shared co ntrol of responsib ility for maintaining standards of patient care, keeping prop er records, and following established procedure “exists both for employee doctors and for doctors mere ly enjoying practice privileges at a facility”)); see also McPherson v. HCA-Healthone, LLC , 202 F. Supp. 2d 1156, 1166 (D. Colo. 2002) (“ Doctors enter into ag reements for staff privileges not to become empl oyees of the hospital, but b ecause they need places to perform surgeries.”).

test was not an issue di scussed in that case. Jaffrey , therefore, does not aid in our analysis here.

5 SRHC’s Bylaws provide that a physic ian may have locum tenens privileges for only 120 days. See Aplt. App. at 121. As the expi ration of that period drew near for Dr. Benaissa, he asked SRHC for “Associate Staff status.” Id. at 123. SRHC granted his request, granting him “members hip on the Associate Medical Staff” and privileges in Orthopedic Surgery, Department of Surgery.” Id. at 124. Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1213 Levitin did leave open the possibility that in some circumstances, having “hospital staff privileges” could create “an indirect employer-employee relationship with the hospital sufficient to invoke Title VII protection.” Levitin , 923 F.3d at 501 (internal quotation marks omitted); see also McPherson , 202 F. Supp. 2d at 1167 (“[T]he privilege to use faci lities, equipment and staff, without more , does not translate into an employer-e mployee relationship.” (empha sis added)). And although Dr. Benaissa cites several other cases s uggesting the same possibility, he does not address Levitin (or Cilecek ) or otherwise explain why th e circumstances of his case warrant deviating from the principle that ha ving staff privileges at a hospital is not sufficient to confer employee status on a phys ician. And given th at the other factors either support the conclusion that he wa s not an SRHC employee or are unreliable indicators of employee status, we do not see how the circumst ances of this case warrant such a deviation. Finally, Dr. Benaissa has not taken issu e with many of the individual factors the district court determined were inconsis tent with employee status or with other caselaw the court relied on el sewhere in its decision when analyzing the hybrid test’s various factors. In par ticular, he has not meaningfully challenged the court’s assessment of the hybrid te st’s main focus—that SRHC did not “control the means and manner of [his] performance,” Lambertsen , 79 F.3d at 1028. Therefore, considering the totality of the circumstance s in light of the a pplicable law, we conclude that, as a matter of law, Dr. Be naissa was not SRHC’s employee within the Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1314 meaning of Title VII. Acco rdingly, we affirm the gr ant of summary judgment to SRHC on the Title VII claims.
3. State-law retaliation claim As pleaded in his complaint, Dr. Benai ssa’s state-law retaliation claim rested solely on allegations that “members of SR HC’s medical staff used the peer review process to retaliate against [him] due to his referrals of patients to Mowery Clinic surgeons or for expressing concerns that th e hospital was in violation of applicable standards.” Aplt. App. at 14. But in it s ruling on summary judgment, the district court also considered the claim as involving retaliatory discharge. 6 We therefore consider both theories, beginning with retaliatory discharge. The district court granted summary judgment to SRHC on Dr. Benaissa’s claim of retaliatory discharge under Kans as law because Dr. Benaissa was not SRHC’s employee. The court explained that under Kansas law, a retaliatory discharge claim is an excep tion to the employment-at-will doctrine and therefore is confined to the employee-employer relationship. See, e.g. , Goodman v. Wesley Med. Ctr., L.L.C. , 78 P.3d 817, 821 (Kan. 2003) (“ Kansas follows the common-law employment-at-will doctrine, which allows employers to terminate employees for good cause, for no cause, or even for the wrong cause. To prevail on a retaliatory discharge claim, an employee must demonstrat e that he or she falls within one of the

6 The retaliatory discharge cl aim appears to have been raised in Dr. Benaissa’s response to SRHC’s motion for summary judgment. See Aplt. App. at 93-94 (response); see also id. at 35 (SRHC summary judgment brief treating the state-law claim as one solely for retaliatory discharge). Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1415 exceptions to the employm ent-at-will doctrine.”); Zinn v. McKune , 143 F.3d 1353, 1360 (10th Cir. 1998) (affirming summary judgment on claim of whistleblower retaliatory discharge under Kansas law because, among other reasons, defendant was not plaintiff’s employer). To determin e whether Dr. Benaissa qualified as an employee for the purposes of his retaliatory di scharge claim under Kansas law, the district court again applied the hybrid test . The court reasoned that the analysis under both tests is effectively the same be cause the Kansas test focuses on the same issues as the hybrid test, and therefore summary judgment on Dr . Benaissa’s state claim was warranted for the same re asons as on his Title VII claim. Dr. Benaissa argues the district court erred because he was SRHC’s employee under a twenty-factor test Kansas courts us e to determine whether an individual is an employee or an independent contractor. See Craig v. FedEx Ground Package Sys.,
Inc. , 335 P.3d 66, 76 (Kan. 2014) (per curiam ) (setting forth test for such use in evaluating claims under the Kansas Wage Pa yment Act). Dr. Benaissa asserts that the analysis under the Kansas test “essentially parallel[s] the analysis . . . under the Federal test,” and submits that the same arguments he advanced on his Title VII claim are sufficient to avoid summary judg ment on the employee requirement of his retaliatory discharge claim. Aplt. Opening Br. at 22. 7 By “Federal test,”

7 The primary focus of the Kansas test set forth in Craig is, like the hybrid test, the employer’s right to control the employee’s work. See Craig , 335 P.3d at 76. And many of the nineteen additiona l factors the Kansas test in cludes are the same as those of the EEOC and hybrid tests, except fo r the following seven factors, which are exclusive to the Kansas test: “the re quirement that the se rvices be provided personally by the worker”; “the requirement that the worker devote full-time to the Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1516 Dr. Benaissa apparently means the EEOC te st he advocates. However, we have concluded that the hybrid test applies instead to th e Title VII claims. With regard to the one factor exclusive to the EEOC test (whether the worker hires or pays assistants) that Dr. Benaissa asserts is crucia l to his Title VII clai m, the district court properly ruled that his inability to hire or pay assistants indi cated he was not an SRHC employee. Therefore, because Dr. Benaissa has not succeeded on appeal with respect to whether he was SRHC’s employee for purposes of his Title VII claim, he cannot prevail on that issue as to his retaliatory discharg e claim under Kansas law. We therefore affirm summary judgment on the retaliatory discharge claim. See Nash v. Blatchford , 435 P.3d 562, 569 (Kan. Ct. A pp. 2019) (“Where the facts are undisputed or the evidence is susceptible of only a single conclusion, it is a question of law for the court whether one is an employee or an independent contractor.” (internal quotation marks omitted)). The district court also considered and rejected Dr. Benai ssa’s argument that his claim of bad-faith peer review unde r Kan. Stat. Ann. § 65-442(a) requires no employer-employee relationship. The district court explained that his statutory claim remained a retaliation claim, and under Kans as law, such claims may only be brought

employer’s business”; “the requirement th at the worker submit regular or written reports to the employer”; “the extent to which the employer pays the worker’s business or travel expenses”; “the ability of the worker to make a profit or suffer a loss”; “whether the work er can work for more than one firm at a time”; and “whether the worker makes his or her services avai lable to the general public on a regular and consistent basis.” Id. Dr. Benaissa has not relied on any of the seven factors exclusive to the Kansas test. Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1617 by employees. The court noted that § 65- 442(a) and another statute Dr. Benaissa relied on in his response to SRHC’s summa ry judgment motion, Kan. Stat. Ann. § 65-4909, merely limit liab ility for medical care facili ties and certain of their officials if they act ed in good faith. On appeal, Dr. Benaissa reprises his ar gument that his stat utory claim based on allegedly retaliatory peer re view does not require an empl oyee-employer relationship. But even if § 65-442(a) is not limited to em ployers, as Dr. Benaissa contends, he still has not identified the source of his claim. Section 65-44 2(a) “grants immunity in peer review processes in an effort to encourage hospitals to actively engage in peer review of staff physicians” a nd “was enacted under the belie f that with the threat of liability removed, the effective use of peer review would increase and be promoted.” Davis v. Hildyard , 113 P.3d 827, 830 (Kan. Ct. App. 2005) (internal quotation marks omitted). 8 To the extent Dr. Benaissa sugges ts § 65-442(a) create s an implied cause of action for retaliatory peer review, he ci tes no case for that proposition, nor have

8 Section 65-442(a) provides: There shall be no liability on the part of, and no action for damages shall arise against, any duly appointed member of the governing board or the duly appointed member of a committee of the medical staff of a licensed medical care facility for any act, st atement or proceeding undertaken or performed within the scope of the func tions and within the course of the performance of the duties of such co mmittee of the medical staff if such member acted in good faith and with out malice, and the medical staff operates pursuant to written bylaws that have been approved by the governing board of the medical care facility. Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1718 we uncovered any. The same is true of the other statute he relies on, § 65-4909(a). 9 We decline to recognize such an implied cause of action based on Dr. Benaissa’s limited argument. We therefore affirm the district court’ s grant of summary judgment on Dr. Benaissa’s claim of retaliatory peer review. B. Cross-appeal No. 21-3105 (Attorney’s Fees) In its cross-appeal, SRHC challenges th e district court’s de nial of its motion for attorney’s fees under 42 U.S.C. § 2000e -5(k), which gives courts discretion to award a reasonable attorney’s fee to the prevailing part y in a Title VII action. Where, as here, the defendant is the prevailing party, a court may not award attorney’s fees “unless the court finds that the plain tiff’s claim was frivolous,

9 Like § 65-442(a), § 65-4909( a) protects “good faith participation in the peer review process.” Donnell v. HCA Health Servs. of Kan., Inc. , 28 P.3d 420, 425 (Kan. Ct. App. 2004). Se ction 65-4909(a) provides: There shall be no liability on the part of and no action for damages shall arise against any: (1) State, regiona l or local association of health care providers; (2) state, regional or lo cal association of licensed adult care home administrators; (3) organization delegated review functions by law, and the individual members of any committee thereof (whether or not such individual members are health care providers or licensed adult care home administrators); or (4) individual or entity acting at the request of any committee, association or organization listed in subsections (1) through (3), which in good faith investigates or co mmunicates information regarding the quality, quantity or cost of care being given patients by health care providers or being furnished resident s of adult care homes for any act, statement or proceeding undertaken or performed within the scope of the functions and within the course of the performance of the duties of any such association, orga nization or committee if such association, organization or committee or such indivi dual member thereof acted in good faith and without malice. Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1819 unreasonable, or groundless, or that the plaintiff continue d to litigate after it clearly became so.” EEOC v. PVNF, L.L.C. , 487 F.3d 790, 807 (10t h Cir. 2007) (internal quotation marks omitted). We review a di strict court’s award of attorney’s fees under § 2000e-5(k) for an abuse of discretion. Id. In denying SRHC’s motion, the district court expressed concerns about several aspects of Dr. Benaissa’s ca se. Dr. Benaissa knew most of the facts he relied on before he filed suit, including that SRHC ne ver paid him. The facts he relied on were likely the same for any physic ian with staff privileges at a hospital. And he cited no case holding that a locum tenens provide r was a hospital employee for Title VII purposes. The court also had concerns about the inc onsistency between his tax returns, where he attested to being a sole proprietor, and his litigation position that he was an SRHC employee. Although the court considered the issue “close[],” Aplee. Suppl. App., Vol. I at 39, the court found othe r factors counseled against granting attorney’s fees. Dr. Benaissa had identified some facts s upporting his position un der the hybrid test, and although the court had found his ar guments unpersuasive, SRHC had not identified any Tenth Circuit authority for eclosing Dr. Benaissa’s position on a similar record. The court also found it significant that Dr. Benai ssa had agreed at the outset of the case to limit discove ry to the threshold, potentia lly dispositive, issue—whether SRHC was his employer. On appeal, SRHC argues the distri ct court placed too much importance on Dr. Benaissa’s agreement to limit discove ry because Dr. Benaissa learned nothing Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 1920 new as a result of that discovery. It al so posits that the ev idence overwhelmingly demonstrates that SRHC was not his employer. We cannot say the district court “(1) fail[ed] to exercise meaningful discretion, such as acting ar bitrarily or not at all, (2) commit[ted] an error of la w, such as applying an in correct legal standard or misapplying the correct legal standard, or (3) relie[d] on clearly erroneous factual findings.” Farmer v. Banco Popular of N. Am. , 791 F.3d 1246, 1256 (10th Cir. 2015) (defining abuse of discretion). 10 We therefore affirm the order denying SRHC’s motion for attorney’s fees.
III. CONCLUSION We affirm the district court’s judgm ent and its order de nying SRHC’s motion for attorney’s fees.

Entered for the Court

Veronica S. Rossman Circuit Judge

10 Our conclusion does not require us to address the parties’ arguments regarding whether (1) Dr. Benaissa brou ght the action in good faith or (2) his litigation position is factuall y supported by either Nash , 435 P.3d at 569, or a letter from the Kansas Board of Healing Arts info rming him it was closi ng its investigation into an outside reviewer’s report that trea tment he provided did not meet the standard of care. Appellate Case: 20-3236 Document: 010110613176 Date Filed: 12/02/2021 Page: 20