there was no affirmative showing one way or the other at trial as to whether knight was an employee i'm so i was an independent contractor or sub contractor but i think the evidence is very much consistent with him being an independent contractor would receive plans about how the building was actually supposed to be structured and then was expected to implement those plans correctly just basically reading the schematics now murphy another union worker was responsible for ensuring the quality of that work but no one at suny was a skilled electrician and so they could not as a practical matter direct the way that he actually installed the electrical cabling that was something that was within the purview of the union and the union was responsible for certifying the quality of the work as it mattered to you whether the union or mr knight is characterized as an independent contractor it doesn't your honor for us that the purpose the question for title seven purposes is whether he's an employee of student or not and we don't think that he is it's important to remember too that typically the hospital here is not in the business of construction it has regular capital improvement projects but doesn't have a need to have a skilled tradesmen who can handle these kinds of specialized construction projects without it staff have who are skilled electricians right it has a very few number certainly not enough to handle large scale projects like the project at issue here typically had has on average about three to four skilled electricians i think in total about thirteen scale tradesman who could potentially work on a construction project and so like it and even on the project at issue here the hospital actually used an independent contractor a private firm to handle the outfitting  the exterior of the building and so the typical arrangement here is for the hospital to go and use independent contractors so there's nothing unusual the relationship between sunni and the you need to persuade us that  mr knight was in and not an employee or do you only need to persuade us that there was sufficient evidence that a reasonable jury could find that he was not and i  that that gets to a couple of issues with respect to both preservation but i think it gets to one issue which could be answered yes or no to start with i think that it was enough that the jury found that there was sufficient evidence that he was not employed but again we don't think the court even needs to reach this issue because it's he did not make the night did not make a rule fifty motion we did reach it well whether he made a rule fifty motion depends on really the same thing in a sense which is is this an issue for the jury or for the court and i was wondering the case that i thought is most on point for that is kershaw against fleet street which is cited in passing in your brief and not at all it was properly put to the jury i think that's right and i think in the solomon there's a footnote in solomon that that suggests that maybe the issue is open is an open question but i think curses directly on point says it is a proper issue for the jury jury review would be whether a reasonable jury could read those fish and evidence that a reasonable jury could reach that conclusion whatever we might think well i would also know just briefly that there's also a preservation issue even with respect to the question as to whether this is an issue for the jury or the judge knight objected at trial to the issue going to the jury because he thought there was overwhelming evidence that he was in fact an employee but he never act he never objected  to the issue going to the court to going to the jury nor did he contend that this was a state issue of on typically he objected to it going to the jury but only on the grounds that there was insufficient evidence not on the grounds that under no circumstances should be put to the jerde that's exactly correct and moreover the court even flagged for the parties that this the footnote in solomon saying this is an open question or it might be an open question but i'm going to send it to the jury anyway so the issue was squarely flag tonight still did not make an objection that this was an issue of law that should not go to the jury which is which with winter which is what is the relationship wondering for someone like murphy his boss who had that it's only for years and years and had this to ration of every certain number of weeks taking a couple weeks off so he wouldn't be in an employee who how does title seven protect him that the question for title seven the reason independent contractors are usually not given title seven protection is because they have a degree of control over their employment that is true for murphy who is a skilled worker who can screw scales are translatable and can be  other projects but in the event that you know because they're independent contractors it doesn't mean they don't have access to the courts as we lay out in our brief it's possible that murphy or knight would be able to bring title seven  for for example suppose murphy came in one day and said first day that night showed up said oh i didn't know you were black i don't want you to the remedy for that would be a section that instance i think the woman would be able to go to the union and explain what happened and remember the union has its own internal grievance investigation procedures in the event that the union action murphy acting as an agent might  protections are mitigated here where we have someone who could easily be an independent contractor but also has a union to back him up to represent his interests wages and benefits and also to investigate grievances arising