[00:00:02] Speaker 01:
All right, each side will have 15 minutes, and you'll keep track of your own time, Mr. Cardin, whenever you're ready.

[00:00:14] Speaker 02:
Thank you, Your Honor, and may it please the Court, Joshua Cardin on behalf of Dr. Mustafa.

[00:00:20] Speaker 02:
I'm trying to reserve three minutes for rebuttal.

[00:00:24] Speaker 02:
USERRA protects our service members, be they full-time or reserve status, from exactly

[00:00:31] Speaker 02:
what YRMC did to Dr. Mustafa in this case.

[00:00:35] Speaker 02:
The trial court aired below as a matter of law in three different ways.

[00:00:39] Speaker 02:
First, by refusing to grant our summary judgment as to Dr. Mustafa's employee status with the hospital under the test articulated in Real versus Driscoll Strawberries.

[00:00:52] Speaker 02:
Second, by weighing or outright ignoring our disputed material facts related to the USERA

[00:01:00] Speaker 02:
and the similar state law AEPA claim prohibiting discrimination against military service.

[00:01:09] Speaker 02:
And then finally, by dismissing our state law tort claims.

[00:01:12] Speaker 03:
Council, would you agree that both the federal and the state claims require an employment relationship rather than an independent contractor relationship?

[00:01:25] Speaker 02:
One hundred percent, Judge.

[00:01:28] Speaker 03:
I have to say, frankly, I don't see any evidence that this was an employment relationship at the relevant time.

[00:01:35] Speaker 03:
The contract said it wasn't.

[00:01:38] Speaker 03:
The hospital gave your client a choice.

[00:01:41] Speaker 03:
Do you want to be an employee?

[00:01:42] Speaker 03:
Would you prefer to be an independent contractor?

[00:01:45] Speaker 03:
He said, I better talk to a tax advisor.

[00:01:47] Speaker 03:
The tax advisor said, better to be an independent contractor.

[00:01:51] Speaker 03:
So he formed an entity and contracted through that.

[00:01:57] Speaker 03:
And the agreement says with him as a member of this entity, this is an independent contractor arrangement, he explained why he preferred an independent contractor arrangement, and the contract expired.

[00:02:12] Speaker 03:
I truly don't understand your position that he was an employee at that time.

[00:02:19] Speaker 02:
Certainly, Your Honor, and the two parts I'll address there with that question first is,

[00:02:25] Speaker 02:
Under Rayall versus Driscoll-Strawberry, Congress made it clear USERA gets the FLSA definition of employee.

[00:02:35] Speaker 02:
It's the broadest ever written into statute.

[00:02:37] Speaker 02:
There's a six-factor test we've briefed extensively.

[00:02:40] Speaker 02:
The label itself is simply irrelevant.

[00:02:43] Speaker 03:
Yes, but I'm not relying on the label.

[00:02:45] Speaker 03:
I mean, this is a person who creates an entity, and it's the entity that's paid, and it pays him.

[00:02:52] Speaker 03:
He deducted business expenses through the entity as an independent contractor.

[00:02:57] Speaker 03:
So I guess I see the realities the same as the label, and I'm really struggling to see your point of view on this.

[00:03:09] Speaker 02:
And that's the difficulty, Your Honor.

[00:03:11] Speaker 02:
If the label is all that matters, then that becomes the tail wagging the dog of the six factors, because

[00:03:17] Speaker 02:
I can assure the court, if Dr. Mustafa had signed the employment agreement, these same six factors would have to be analyzed.

[00:03:29] Speaker 02:
We would still have to do control.

[00:03:30] Speaker 02:
Well, that's what I'm asking you about.

[00:03:32] Speaker 03:
What is the reality that you're looking at that's different than the reality I've just described, which is that he's not even paid directly, he doesn't get health benefits?

[00:03:42] Speaker 03:
All these things that I've mentioned.

[00:03:45] Speaker 02:
Your Honor, the control aspect, what YRMC dictates, his available shifts.

[00:03:51] Speaker 02:
They tell him how he has to practice.

[00:03:53] Speaker 02:
They tell him whether he can sit or stand next to the patient.

[00:03:57] Speaker 02:
Even the contract administrator referred to his pay as payroll checks on page 25 of the second volume of the record.

[00:04:07] Speaker 02:
The hospital admitted factor six.

[00:04:10] Speaker 02:
He's an integral part of the hospital.

[00:04:13] Speaker 02:
He works inside the hospital.

[00:04:16] Speaker 02:
He doesn't provide any of his own equipment beyond his stethoscope.

[00:04:19] Speaker 02:
He uses all the same hospital equipment that the folks who opted for an employment agreement use.

[00:04:26] Speaker 02:
There's no difference.

[00:04:28] Speaker 01:
Let me ask you this.

[00:04:29] Speaker 01:
Even if we were to accept all of these facts

[00:04:32] Speaker 01:
and arguments that you're making to establish that Dr. Mustafa was in fact an employee for purposes of determining coverage by USERRA.

[00:04:44] Speaker 01:
He had a contract that expired and that contract expired while he was away and it was he was informed post expiration that there would be no renewal.

[00:05:00] Speaker 01:
How does he get the benefit of a rehire when the contract has expired and it expired on its own terms and it was not going to be renewed, which the hospital has submitted argument and there's evidence in the record that it was not likely to renew that contract?

[00:05:22] Speaker 02:
Well, and there's the rub, Judge Desai.

[00:05:26] Speaker 02:
In the more recent case than this briefing, this court held in Clarkson versus Alaska Airlines once again that provisions for benefits to members of the armed services are to be construed in the beneficiary's favor.

[00:05:42] Speaker 02:
And the statute itself contains language that goes far beyond just contract and says,

[00:05:47] Speaker 02:
The benefits of employment include status, include advantage, and it's those things that accrue by reason of either a contract or an employee policy plan or practice.

[00:06:02] Speaker 03:
I don't see how that relates to the expiration question.

[00:06:06] Speaker 03:
I mean, I have term law clerks who are here from August to August, and if one of them went into the military and came back

[00:06:14] Speaker 03:
in October and said, hey, I'd like my job back.

[00:06:18] Speaker 03:
The answer is, you know, you're done because your term expired.

[00:06:24] Speaker 03:
And I haven't really heard an answer to Judge Desai's question about why that doesn't do in your claim.

[00:06:33] Speaker 02:
And fair enough, Judge Graber, the reason is in this case, it's not like the understood one or two year term of a law.

[00:06:40] Speaker 03:
No, it's in writing.

[00:06:41] Speaker 02:
Well, it is in writing, but it's in writing in the context of a 15-year relationship.

[00:06:48] Speaker 02:
The hospital can't do its job without hospitalists.

[00:06:52] Speaker 02:
And throughout the record, in five or six different places, it's couched in terms of renewal.

[00:07:02] Speaker 02:
No one sees these relationships as expiring willy-nilly, and then they just stop working with them.

[00:07:08] Speaker 04:
Counsel, I have a question.

[00:07:09] Speaker 04:
I'm glad you brought up that relationship.

[00:07:12] Speaker 04:
I note that Dr. Mustafa enlisted in the Army in 2007.

[00:07:16] Speaker 04:
He had already started his work with YRMC in 2005.

[00:07:21] Speaker 04:
He was deployed 2011, 2013, and 2019.

[00:07:26] Speaker 04:
Were there any other instances, other than the most recent, where he felt like they were adverse to him being in the military?

[00:07:36] Speaker 02:
Other than the statements that they made, which were in the record, those are some of the facts that the court below ignored.

[00:07:45] Speaker 02:
No, there's no other evidence.

[00:07:47] Speaker 02:
Well, I say that.

[00:07:48] Speaker 02:
There is one record evidence where the contract administrator specifically says the situation with Dr. Mustafa has always been more of a challenge.

[00:08:00] Speaker 02:
And that's on page 29 of ERP.

[00:08:02] Speaker 04:
So let me follow up on that is, was he becoming more challenging as, we'll just take your word for it, for the purposes of this question, as an employee?

[00:08:12] Speaker 04:
I mean, was he getting more obstreperous?

[00:08:14] Speaker 04:
Was he having more issues with staff members or patients so that the reason for his term or for their refusal to extend the contract really has nothing to do with the fact that he was deployed, but maybe because he's honoree and he doesn't do well with patients.

[00:08:30] Speaker 02:
And so, Your Honor, to be clear, the word challenge in this context is in a completely separate area of the email where they talk about citizenship.

[00:08:38] Speaker 02:
Now, as to citizenship, the record is void of any comparator evidence.

[00:08:44] Speaker 02:
All we know is that there are apparently complaints that predate him being offered this contract and that there are a few anonymous complaints that patients themselves cannot make into this system.

[00:08:56] Speaker 02:
that occur afterwards, none of which is he ever told about, and there's his direct testimony on that point, and the regulations for you, Sarah, say, okay, fine, you can, yes, you can discharge someone for cause, but you've got to give notice.

[00:09:12] Speaker 03:
But Counsel, isn't that also consistent with his being an independent contractor?

[00:09:17] Speaker 03:
If you hire an independent contractor for a term of three years, you might not pass along

[00:09:22] Speaker 03:
every complaint that you receive because you're bound to keep them for three years unless you meet the terms of the contract, which are different than what's required to discharge an employee.

[00:09:34] Speaker 02:
And the answer to that is maybe.

[00:09:37] Speaker 02:
But this is a summary judgment case.

[00:09:40] Speaker 02:
We can't decide the case against my client on maybe the jury might see it differently.

[00:09:46] Speaker 02:
It's could the jury see it my client's way, which is he gets deployed, they immediately go ask about complaints.

[00:09:54] Speaker 02:
Hey, are there any complaints about this doctor?

[00:09:57] Speaker 02:
And then they don't do anything with those complaints until he comes back.

[00:10:02] Speaker 02:
and they say, hey, we really don't want to offer a contract.

[00:10:06] Speaker 03:
They didn't think he was coming back because his term expired.

[00:10:10] Speaker 03:
It's kind of circular, I think.

[00:10:15] Speaker 02:
I think that the timing of the expiration, Your Honor, is just the fact that there was an end date.

[00:10:23] Speaker 02:
the undisputed testimony from the contract administrator is everybody gets renewed.

[00:10:30] Speaker 02:
And we know that they needed him because they kept hiring hospitalists.

[00:10:35] Speaker 02:
They just didn't want him.

[00:10:37] Speaker 02:
He was becoming an inconvenience.

[00:10:39] Speaker 02:
Dr. Mustafa, you weren't here when we needed you back in the fall.

[00:10:44] Speaker 02:
That's the evidence in the record.

[00:10:45] Speaker 02:
And Clarkson, again, quotes very clearly that, yes, we understand frequent absences can be very inconvenient, considerable inconvenience to an employer.

[00:10:56] Speaker 04:
You've been deployed, though, at least two other times.

[00:10:59] Speaker 02:
Correct.

[00:11:00] Speaker 04:
Why now?

[00:11:01] Speaker 04:
Why in 2019 does it matter?

[00:11:04] Speaker 02:
Your Honor, it sounds like it built.

[00:11:07] Speaker 02:
That's how I think the reasonable inference should be drawn from the statement, oh, you're going out again?

[00:11:13] Speaker 02:
it's becoming a frustration.

[00:11:16] Speaker 02:
He had monthly reservist obligations, and I think the inference is that's what Ms.

[00:11:21] Speaker 02:
Orendorf was referring to as the challenge.

[00:11:25] Speaker 02:
He had to be accommodated for those monthly obligations, not just a long-term deployment to Afghanistan like what happened in 2019.

[00:11:34] Speaker 02:
So with this feature now, I haven't addressed any of the

[00:11:40] Speaker 02:
The state law tort claims here, I will mention those briefly.

[00:11:44] Speaker 02:
Tortious interference with a contract is something that even the chief medical officer of the hospital can be liable for.

[00:11:54] Speaker 02:
We've cited the case law, Arizona cases that

[00:11:57] Speaker 02:
Just because there's a principal agency relationship doesn't mean the principal can't be liable for torsus interference and also for aiding and abetting.

[00:12:09] Speaker 02:
I see my timer's ticked down to three minutes.

[00:12:12] Speaker 02:
Unless there's an immediate question, I will sit down.

[00:12:14] Speaker 01:
All right.

[00:12:15] Speaker 01:
Thank you.

[00:12:15] Speaker 01:
Thank you.

[00:12:16] Speaker 01:
We'll hear from you on rebuttal.

[00:12:19] Speaker 01:
Mr. Dowell?

[00:12:29] Speaker 00:
May it please the court?

[00:12:33] Speaker 00:
Your honors, I'm Eric Dowell.

[00:12:34] Speaker 00:
I represent the Appellee's Yuma Regional Medical Center and Dr. Bharat Mughal.

[00:12:41] Speaker 00:
Excuse me.

[00:12:42] Speaker 00:
So I think what the district court did, which was probably a good place to start, was just to assume for purposes of the analysis that Dr. Mostafa was an employee.

[00:12:58] Speaker 00:
because the district court reasoned we still have to go through those factors.

[00:13:00] Speaker 01:
Well, I understand why the district court may want to do that because it knows it's likely going to be reviewed by this court.

[00:13:06] Speaker 01:
But our court doesn't need to do that, correct?

[00:13:08] Speaker 01:
I mean, if we decide that Dr. Mustafa was, in fact, an independent contractor and not an employee, we could end the inquiry there, correct?

[00:13:17] Speaker 00:
Absolutely.

[00:13:18] Speaker 00:
And we believe that's where the inquiry should end.

[00:13:21] Speaker 00:
I think the record has been extensively briefed by both parties on that issue and the six-factor test and so forth.

[00:13:27] Speaker 00:
I think as your honor raised, this is a situation where Dr. Mustafa worked as a hospitalist, as an employee for other companies.

[00:13:37] Speaker 00:
He was staffed at Yuma Regional Medical Center for that 13-year period.

[00:13:42] Speaker 00:
It was only when those contracts then did not renew that the hospital then extended an invitation to him to either become an employee or an individual contractor.

[00:13:51] Speaker 01:
So this issue about, which we had some conversation with your friend on the other side in terms of the expiration,

[00:13:57] Speaker 01:
This is important because it matters for purposes of whether he had an expectation to have an automatic renewal or for it to be renewed given that it expired during his absence.

[00:14:07] Speaker 01:
So when considering Yuma Regional Medical Center's three proffered reasons for choosing not to renew his contract, the lack of need in my view seems to be the weakest.

[00:14:19] Speaker 01:
considering that the hospital did hire other hospitalists after March 2020.

[00:14:24] Speaker 01:
So assuming we don't buy this reason as a basis for not renewing the contract, is the remaining rationale that the hospital decision to not renew it sufficient to show that it would have taken the same action without regard to the employee's protected status?

[00:14:43] Speaker 00:
Well, I think the first question that we have to address is what's the adverse action here?

[00:14:48] Speaker 00:
And the adverse action is not denying Dr. Mustafa the right to come back as an independent contractor in March of 2020.

[00:14:55] Speaker 00:
The adverse employment action, as alleged, is the failure of the hospital to renegotiate a new contract with him in September 1st of October of 2019.

[00:15:05] Speaker 00:
That's the adverse action.

[00:15:08] Speaker 00:
Keep in mind that the notice, though, that Dr. Mustafa provided, or that was sent to the hospital, which the hospital received in January of 2019, indicated that he would be out on a deployment for 120 days.

[00:15:21] Speaker 00:
The hospital fully expected Dr. Mustafa to be back about the 1st of October, maybe mid-November.

[00:15:27] Speaker 00:
He didn't come back.

[00:15:28] Speaker 00:
He didn't even indicate to the hospital that he had a desire to come back and renew his contract.

[00:15:35] Speaker 04:
Council, let me interrupt you there because you came up with the date that I wanted to ask you about.

[00:15:39] Speaker 04:
So January 9th, 2019, the Army issues notice informing YRMC about Dr. Mustafa's next deployment.

[00:15:45] Speaker 04:
And you're right.

[00:15:46] Speaker 04:
They said it's going to be 120 days.

[00:15:47] Speaker 04:
You're expecting him to return in July of 2019.

[00:15:51] Speaker 04:
Short six weeks later, February 25, 2019, in response to an email from YRMC's vice president of patient care about Dr. Mustafa's, and I quote, many issues with staff and patients, Dr. Magoo states, and again, I'm quoting, yes, Dr. Mustafa is being slowly phased out of the schedule.

[00:16:09] Speaker 04:
Hospital leadership is aware.

[00:16:11] Speaker 04:
So six weeks after you're told this individual, this doctor has to be deployed again or will be deployed again for 120 days,

[00:16:20] Speaker 04:
there's already something going on saying we're going to not, we're getting rid of them.

[00:16:27] Speaker 00:
Well, a couple of things on that.

[00:16:28] Speaker 00:
The email of which you refer that Dr. Magoo made that comment that we are slowly phasing him out of the schedule relates specifically to his response about the patient complaints against Dr. Mustafa, about the failure of Dr. Mustafa to respond adequately to staff, and to other patient complaints.

[00:16:48] Speaker 04:
So as you heard me ask Dr. Mustaf as counsel, what changed?

[00:16:53] Speaker 04:
He's been working for the hospital since 2007, I believe.

[00:16:58] Speaker 04:
And it's 2019, right about the time that the Army's letting you know, we need him again.

[00:17:04] Speaker 04:
What changed?

[00:17:06] Speaker 04:
Did he become more obstreperous?

[00:17:08] Speaker 04:
Was he honoree with the patients, with staff?

[00:17:12] Speaker 04:
Did he change?

[00:17:13] Speaker 04:
Or did leadership say, we're done here?

[00:17:16] Speaker 00:
I think there were increased complaints against Dr. Mustafa.

[00:17:21] Speaker 00:
The challenge that Mr. Cardin referenced in that email, if you look at the record, what that was in reference to was shifts.

[00:17:30] Speaker 00:
Dr. Mustafa was told when he entered into the independent contractor relationship

[00:17:34] Speaker 00:
that as an independent contractor, you don't necessarily get to pick your shifts.

[00:17:38] Speaker 00:
You basically get what's left over from whatever we give to the employed physicians.

[00:17:43] Speaker 00:
So he was upset after he entered into this agreement for not getting the number of shifts that he thought he could expect.

[00:17:50] Speaker 00:
And it's in response to that email where this comment of, well, he's becoming more of a challenge.

[00:17:55] Speaker 00:
He doesn't seem to understand that as an independent contractor, you can't just have the same exact privileges that an employed physician would have.

[00:18:04] Speaker 00:
And that's where that comes from.

[00:18:06] Speaker 00:
So I think the answer is yes.

[00:18:07] Speaker 00:
Certainly there was increased complaints about him, not only from staff, but by patients.

[00:18:13] Speaker 00:
And then he was becoming challenging because of his treatment of the administration in terms of the shifts that he believed he should be getting but wasn't getting.

[00:18:24] Speaker 00:
Again, going back to Dr. Magoo's email, though, there is not one shred of evidence in the record.

[00:18:29] Speaker 00:
to suggest that that comment that we were phasing him out of the schedule made almost 40-something days later.

[00:18:34] Speaker 00:
And this is only after the notice of deployment, okay?

[00:18:37] Speaker 00:
There's no evidence in the record Dr. Magoo even knew about that deployment order.

[00:18:42] Speaker 00:
So he makes this comment in response to an email about how difficult Dr. Mustafa has become and because of the complaints made against him.

[00:18:50] Speaker 00:
That's the only evidence in this record to suggest

[00:18:54] Speaker 00:
Well, it doesn't even suggest at all that that military service played any factor, much less a motivating or substantial factor in the decision not to extend a new contract to him in November when he came back.

[00:19:08] Speaker 00:
The comment that opposing counsel makes that the service of Dr. Mustafa became frustrating or burdensome or things of that nature, there's just no evidence of that.

[00:19:24] Speaker 00:
There's no evidence of that at all.

[00:19:26] Speaker 01:
In fact, the hospital... Well, I think Judge DeAlpo's question kind of goes to that point, which is the contemporaneous or close timing between his notice that he's leaving again and then the restrictions on his schedule really kind of is at least something.

[00:19:42] Speaker 01:
And I think your friend on the other side is arguing, isn't that something that the jury ought to hear?

[00:19:47] Speaker 01:
Whether or not, in fact, it was a causal

[00:19:49] Speaker 01:
connection or the hospital would have made the decision not to renew his contract or given the shifts regardless?

[00:19:57] Speaker 00:
The indication that he's becoming a challenge based on the shifts, I believe, was a year earlier.

[00:20:02] Speaker 00:
I think it was in 2018, if I recall.

[00:20:05] Speaker 00:
So that's when Dr. Mustafa was complaining.

[00:20:07] Speaker 00:
Almost immediately after he gets into this contract, it might have even been 2017 now that I recall, he gets into this contract, he's now complaining to staff that he's not getting the shifts that he believes he's entitled to.

[00:20:18] Speaker 00:
And that's when they explained to him, no, look, you're a contractor.

[00:20:21] Speaker 00:
You get whatever is left over here.

[00:20:24] Speaker 00:
And as was pointed out by the court, there's no evidence of any hostility or frustration about his military service.

[00:20:31] Speaker 00:
And he's been on deployment at least three times.

[00:20:34] Speaker 01:
I mean, do they need to say that they're sending an email giving him fewer shifts because he has just announced that he's leaving again for reservist duty?

[00:20:44] Speaker 01:
I mean, do they need to say that for there to be a causal connection?

[00:20:49] Speaker 00:
Well, keep in mind that that's a very big timing issue.

[00:20:52] Speaker 00:
He gets the orders to deploy come in January of 2019.

[00:20:57] Speaker 00:
The challenging issue where he's complaining about shifts comes at least a year or two earlier than that.

[00:21:04] Speaker 00:
Again, he's becoming to be a problem based on his attitude and his expectations of getting the right schedule, getting the number of hours he expects and so forth.

[00:21:14] Speaker 00:
There's absolutely no evidence though in this record that Dr. Mustafa or that the hospital expressed any hostility or animus at all relating to his military service.

[00:21:27] Speaker 00:
Mr. Cardin said he went out on monthly deployments or at least practice deployments.

[00:21:32] Speaker 00:
He went out at least in three prior deployments while he served as an employee of other staffing companies and served at the hospital.

[00:21:41] Speaker 00:
So where is the evidence that the hospital was somehow frustrated or burdened by his military service?

[00:21:49] Speaker 00:
Again, the evidence in the record is this.

[00:21:54] Speaker 00:
There's a challenge.

[00:21:55] Speaker 00:
He becomes a challenge well before January of 2019.

[00:21:59] Speaker 00:
There's the email in February at the end of February of 2019 by Dr. Magoo, which we've discussed.

[00:22:04] Speaker 00:
And then there's exchange of discussions back in November when they believe he's going to be coming back, but yet never informs the hospital that he is, even though he admits that he should have and could have.

[00:22:18] Speaker 00:
There's discussion then because that's when they expect him to come back and they expect him to request a renewal or new contract.

[00:22:24] Speaker 00:
And they've made the decision there that we're not going to do that.

[00:22:26] Speaker 00:
Based on all of this, it's just become

[00:22:29] Speaker 00:
He's just become this person that we don't want in our environment.

[00:22:34] Speaker 00:
We don't believe he's right for it.

[00:22:35] Speaker 00:
It's not because he's going on deployment.

[00:22:37] Speaker 00:
There's no evidence of that at all.

[00:22:39] Speaker 00:
And then he gets his employment extended twice without providing any notice whatsoever to the hospital.

[00:22:48] Speaker 00:
So as far as the hospital is concerned, he comes back in or is supposed to come back in November, gets his employment extended twice,

[00:22:58] Speaker 00:
and then doesn't even provide notice that he wants to return until the end of February of 2020.

[00:23:05] Speaker 00:
So first of all, as to the other hired people, the fact that people were hired any time before February of 2020 is irrelevant.

[00:23:15] Speaker 00:
They didn't even know and had no knowledge, there's no knowledge in the record that he was even having the desire to come back and work.

[00:23:20] Speaker 00:
What about the other people hired in March of 2020?

[00:23:23] Speaker 00:
I believe there was only one, if I recall in the record.

[00:23:26] Speaker 00:
But again, Dr. Mustafa, they had the discussion with him I believe on March 10th, 2020.

[00:23:31] Speaker 00:
And I believe there was one other person that received a contract at the end of March of 2020.

[00:23:36] Speaker 00:
I don't remember the date.

[00:23:38] Speaker 00:
And then there were a couple of other people hired later in the year.

[00:23:40] Speaker 00:
But keep in mind, this was also, again, in the midst of the COVID pandemic.

[00:23:45] Speaker 00:
And the record also indicates that as a backup plan,

[00:23:50] Speaker 00:
they would consider using Dr. Mustafa and maybe offering him another independent contractor agreement to fill in for other hospitalists because they were getting sick, COVID.

[00:24:01] Speaker 00:
And so I think that right there proves they don't have any hostility towards his military service.

[00:24:06] Speaker 00:
What they have hostility to is his poor patient care and his attitude towards staff and toward patients.

[00:24:13] Speaker 00:
And so that's why they didn't renew his contract.

[00:24:16] Speaker 00:
Well, they didn't, he didn't even ask to have his contract renewed.

[00:24:19] Speaker 00:
In fact, when he came back in February, at the end of February 2020, he just said, I'm ready to start work next month, middle of March.

[00:24:27] Speaker 03:
Can I ask you one question about the written contract itself, assuming that it is an independent contractor agreement?

[00:24:37] Speaker 03:
I did not see in the contract any guarantee of renewal or any criteria for renewal, but merely a statement that the way to renew was by mutual consent in writing as an addendum to be attached.

[00:24:53] Speaker 03:
Is there something I'm missing or is that all there is about renewal?

[00:24:58] Speaker 00:
You're not missing anything, Your Honor.

[00:24:59] Speaker 00:
In fact, that is it.

[00:25:00] Speaker 00:
It's a contract.

[00:25:02] Speaker 00:
that expired on its own terms.

[00:25:05] Speaker 00:
It had no automatic renewal provision in it at all.

[00:25:08] Speaker 00:
It even allowed for early termination by both parties should they decide to do that.

[00:25:13] Speaker 03:
Or for cause, which was carefully defined.

[00:25:17] Speaker 00:
Correct.

[00:25:18] Speaker 00:
Right.

[00:25:18] Speaker 00:
Correct.

[00:25:20] Speaker 04:
Council, you make a lot of mention of poor patient care as one of the reasons why his contract, well, the issues that they were having.

[00:25:27] Speaker 04:
When did that start?

[00:25:29] Speaker 00:
Well, I believe it was,

[00:25:31] Speaker 00:
I don't have the dates in front of me, but I believe it actually occurred prior to the contract being formed with him and then after.

[00:25:39] Speaker 00:
And that's one of the arguments that council is making.

[00:25:41] Speaker 00:
They're saying, well, you know, there were complaints about him before and you still entered into a contract with him.

[00:25:48] Speaker 00:
Yes.

[00:25:48] Speaker 00:
Then there were further complaints and there were further challenges because he was complaining about the schedules that he wasn't getting and expected.

[00:25:56] Speaker 04:
So does that mean then before October 1st, 2016?

[00:26:01] Speaker 00:
Yes, yes.

[00:26:04] Speaker 04:
And when did you share these complaints with him?

[00:26:07] Speaker 00:
Well, he knew of at least two of the complaints.

[00:26:10] Speaker 00:
How many were there?

[00:26:11] Speaker 00:
I believe there were six complaints or more, I think about six complaints.

[00:26:17] Speaker 04:
Since 2016, prior to 2016 or since his entire employment there in January of 2009 till

[00:26:24] Speaker 00:
No, the complaints were more contemporaneous.

[00:26:26] Speaker 00:
They were, I believe, in 2015 and 2016 and then the others later on.

[00:26:34] Speaker 00:
The record itself would explain that, but I apologize, I don't have those exact dates with me.

[00:26:39] Speaker 00:
But I guess the evidence is what we need to look at, and the question is, is there any evidence at all?

[00:26:47] Speaker 00:
that Dr. Mustafa's military service was a motivating factor in any decision not to renew or extend a contract to him.

[00:26:55] Speaker 04:
I'm just trying to figure out, counsel, if these six complaints are pretext.

[00:27:02] Speaker 04:
Going back to those six complaints and saying, no, no, no, we didn't do it because of USERA or any of his military service.

[00:27:07] Speaker 04:
We did it because people were complaining about him.

[00:27:09] Speaker 04:
That's what I'm trying to figure out.

[00:27:10] Speaker 04:
When were these complaints made?

[00:27:11] Speaker 04:
When was he made aware of these complaints and whether or not

[00:27:15] Speaker 04:
you know, they are pretext or a justifiable reason to not extend his contract.

[00:27:23] Speaker 00:
Well, the only suggested evidence that they are pretext is just simply Mr. Cardin's statement that they were anonymous complaints and that patients themselves couldn't go into the hospital's computer system and make those complaints.

[00:27:35] Speaker 01:
Is that accurate?

[00:27:37] Speaker 00:
I believe it is accurate.

[00:27:38] Speaker 00:
Yeah, I don't believe patients actually go in and make complaints against their doctor.

[00:27:42] Speaker 00:
they complain to a staff member, a nurse, or another doctor, and then those are put into the system and recorded, which is pretty much standard practice in the event.

[00:27:54] Speaker 00:
I've only got a couple of minutes left, but I do want to come back to the independent contractor issue, unless you have questions.

[00:27:59] Speaker 01:
I think you're over time, actually, but I'm happy to give you a minute if you want to wrap up and make a

[00:28:04] Speaker 01:
Closing statement.

[00:28:05] Speaker 00:
Oh, okay.

[00:28:06] Speaker 00:
I think that the analysis of the state law claims, the tort claims, is pretty well set out and fully briefed.

[00:28:12] Speaker 00:
I don't know that we really need to address that.

[00:28:14] Speaker 00:
Obviously, the USERRA claim and the AEPA claim rely upon the fact or the conclusion that Mr. Cardin draws that he has to be an employee for those statutes to even apply to him.

[00:28:26] Speaker 00:
We submit that there's plenty of evidence in this record to show that he was not an employee, that he was, as was stated at the beginning,

[00:28:32] Speaker 00:
an independent contractor by his own choosing, by his own, the only advice he received from his certified public accountant and by the fact that he wanted those tax advantages and he wanted that better, the deductions for his expenses and he wanted the better income stream and he wanted the flexibility of the hours for which he complained about then as soon as he got the contract.

[00:28:52] Speaker 00:
He wanted to be able to submit the hours he would work and then work when he wanted to or work elsewhere where he wanted to and not have to be

[00:29:00] Speaker 00:
you know, having to be compliant with any hospital requirements of when he actually had to work.

[00:29:05] Speaker 00:
I believe that the district court properly granted summary judgment denied the plaintiff summary judgment motion, and I respectfully request this court to affirm that decision.

[00:29:15] Speaker 01:
Thank you, Mr. Dowell.

[00:29:16] Speaker 01:
And Mr. Cardin, you've got three minutes for rebuttal.

[00:29:20] Speaker 02:
Thank you, Your Honor.

[00:29:22] Speaker 02:
First, to Judge De Alba's point, the patient complaints, the existence of them might be pretext, but more importantly,

[00:29:30] Speaker 02:
reason why their pretext in this case is because he's never told about them.

[00:29:36] Speaker 02:
He finds out about them in the course of this lawsuit, but he's never told.

[00:29:40] Speaker 02:
He's never coached.

[00:29:41] Speaker 02:
He's never disciplined.

[00:29:42] Speaker 02:
He's never written up.

[00:29:44] Speaker 02:
These complaints are meaningless to his day to day work because he never hears about them.

[00:29:50] Speaker 02:
And as to Dr. Magoo's email saying Dr. Mustafa is being phased out of the schedule in February, they don't actually phase him out.

[00:30:00] Speaker 02:
He works full time right up until the time he leaves for deployment.

[00:30:07] Speaker 02:
They needed him.

[00:30:08] Speaker 02:
They needed him afterwards.

[00:30:10] Speaker 02:
They just didn't needed someone who was going to be an inconvenience to them.

[00:30:15] Speaker 02:
To Mr. Dowell's point, I do want to disagree and say,

[00:30:19] Speaker 02:
Dr. Mustafa was not told, he was not told at any point in time that by signing an independent contractor agreement, he would be considered a part-timer.

[00:30:31] Speaker 02:
Pam Orndorff puts that in writing to the hospital leadership on page 30 of the second volume of the record.

[00:30:45] Speaker 02:
evidenced as, oh, in at least one occasion previously he had worked past the end of his contract expiration, that's on pages 138 and 39 of volume 2 of the record, without a renewal.

[00:30:59] Speaker 02:
This was a routine relationship that lasted for 15 years.

[00:31:04] Speaker 02:
The permanence factor should establish his employee status.

[00:31:09] Speaker 02:
The

[00:31:11] Speaker 02:
It's not enough to look at the face of the document.

[00:31:14] Speaker 02:
We have to look at the economic realities of the actual relationship.

[00:31:19] Speaker 02:
This was somebody who the then current hospital leadership in 2019 and 2020 decided that they didn't want to have around anymore, not hospitalists in general.

[00:31:30] Speaker 02:
They needed those.

[00:31:31] Speaker 02:
They needed them so badly.

[00:31:33] Speaker 02:
They went out and put out temporary work for hospitals that Dr Mustafa tried to get.

[00:31:38] Speaker 02:
and they still denied his ability to work as a hospitalist for them despite his track record there.

[00:31:46] Speaker 02:
The complaints themselves cannot serve as the justification for non-renewal.

[00:31:51] Speaker 02:
Again, notice that no one ever says, well, this agreement's dead, we've got to start from scratch.

[00:31:58] Speaker 02:
In every circumstance, it's referred to as a renewal.

[00:32:04] Speaker 02:
Noyes, this decision in Noyes says all of this evidence has to be looked at cumulatively.

[00:32:10] Speaker 02:
Not each of these things can be looked at in isolation.

[00:32:13] Speaker 02:
And we feel that the trial court failed to do that below.

[00:32:16] Speaker 02:
And so we would ask for reversal and remand with the holding that Dr. Mustafa was an employee of Huma Regional Medical.

[00:32:24] Speaker 02:
Thank you.

[00:32:25] Speaker 01:
Thank you, counsel.

[00:32:26] Speaker 01:
This case is now submitted.

[00:32:27] Speaker 01:
And this concludes our arguments for this morning.

[00:32:30] Speaker 01:
Thanks again to everybody.

[00:32:32] Speaker 01:
The court will now stand in recess.