that afternoon we have one case before this panel and judge nygaard is with us the audio so if you hear a voice it will be is it urgent be united states member sixteen aybe write this case involves a single issue decided by the district court on summary judgment and that is whether ruby urgent is an employer within the meaning of title seven or whether she's an employee other employee within the meaning of title seven delete employee activities of the of the employee here we have a situation where the u s marshal service clearly had the power to hire users that they your i believe if you have veto power you essentially have the power to hire and fire that particular individual and the muzzle service has gone beyond that here they have said no and do they have veto power over the power marshal service will actually have to act as a power just like a particular individual for hire and so i think that goes beyond beats up our working backwards if you have the three most important of the numerous starting factors good looks like perhaps you could make a good argument that the power to hire is that with marshal service but the payment comes from m v m or does it not yes it does your bid to control daily activities comes from m b m the control of daily activities for the most part comes from m b m although the marshal service has the power on an annual basis to review the employment status of the tickler employee a range of employment contracts where contractors hire people and they are subject the contractor by reason of employment overview my the course and not the contractors hi something happens and they wish to trade nader who makes that decision that clearly you are and the records not entirely clear from this but we do know that the more the service has the power to fire if they  the courts have held that the courts have held that out of the rehabilitation at the marcus service is an employer of the employee where they exercise the power to hire and fire course security officers grant a security clearance to a particular employee of a contractor and i believe that case is easily distinguishable not running a security clearance for certain types of conduct that they consistently help the federal government is a joint employer or a coal employer of a c s o where there has been the power to hire and fire and the rationale for that is the federal government should not be allowed to hide behind a contract fired paid and controlled daily activity is and plaintiff alleged that the marshal service hired trained supervised and paid c s so that really really sad is that question it can't be that the government is an district court pointed out it simply wouldn't make sense for somebody to be isn't it normally that you would apply the garden factors for this particular statute absolutely your honor and under the darden factors and what's in their complaint we or is absolutely not consider the garden factors are you asking us to consider them or do you think we should remember the district court i think that you can consider them i also plaintiff did not honor she talked about her relationship with miss finch but not about retaliation and you can see in the final agency decision the decision maker is kind of scratching his head he says she says it's because she lived with since but government briefed at the district court's decision and it doesn't go in to doesn't address this in the way that that the court thinks should be done this court can assign on any grounds supported by the record and both the exhaustion and the garden factors and give ample space to do that sheep alleged in her complaint that the  didn't think that she was going to work for the marshal service which while not determinative is that this court has said very probative information and looking at that said she hasn't said that she's going to be an s to find that the government is the boiler under the circumstance would make us the employer of every contractor when we set out the minimum contracts where they the government doesn't do the ultimate opinion as to who the employees of the contractor are and the ultimate test of employment the most important test is the ability to hire and fire and they have the right to even hi hiring the only decision we made here was not to grant a second extension of times you complete the background check we didn't decide the merits of fabrication if we had we might have considered the fact that she had negative references but that's not what happen practice at the same time that person turned down a job then we had to go back that the drawing board but and what we said is that we didn't think she was cooperating with the investigation and that's why the person made the decision that there was a delay but we don't get to that place where we have a sane employer who was doing something to the to hurt plaintiffs because they wanted to hurt there's nothing in the record that the people at the marshall service you made this decision even going to talk about exhaustion which is certainly a threshold issue which would not go to the jury had she checked the box for quite a bit then she added yeah we've talked about that and i for one am not by that but the eyes were you question but the problems you have is that the court didn't consider the bargain factors well the three main garden factors who pays rising fires who controls the activities of the hiring and the firing they determine her qualifications and they could still hire for another position had they wanted to what the government did here was decide not to grant a second extension of time to complete the background check because they did not perceive that she was cooperating with the merits of crap location they would have considered things like the fact that she had negative references from past employers that's not what they were looking at they were looking at the fact that they didn't have her police records and they perceived her as not having when regardless of whether or not she was an employee or would have been an employee if hired and the district court rejected that pointing out that these waivers of sound immunity have to be read narrowly you're not an employee of sounds correct what it complete was what you said during your opening that there was some control over their activities by the marshals or there was some control over the activities by those or if there was payment is by envy and there's whether they'll go forward with the plays called plays of the federal government so that's a stretch is that you know i i don't think it's a stretch when the federal government is controlling absolutely controlling the hiring process and making the decision to go off a lot of qataris are arguing that employees were and i think the federal employees when the government can't tell a contractor get rid of a play x y z because of whatever reason because he's he's someone brought it to do work for you when he worked eight when you're doing work for us i think if you tell him to get rid of the employee yes i would argue that their employer the federal government might say you are you want the whole nine yards that's the problem here you're correct that she did minimize the relationship but there is evidence in the record that they were that they were close friends and that they were living together and we believe that sufficient to find that there was an