she enjoys employer employee relationship under title seven and the illinois human rights act with warm hospitality like i said the o c is going to cover the title seven part of that i would say that the state court test is substantially similar but the only real difference is that for pregnancy discrimination and sexual harassment one hospitality only needed one employee i'm like fifteen under total seven so when i ask you i mean she she winds up with a verdict after all is said and done against hotel coleman for some things and it is what it's about seventy five thousand dollars to join several liability and then there's another approximately seventy five or so that's just hotel cullman favor and you say yes on this record you were entitled to summary judgment on the issue whether von hospitality had the status of an employer or you never mind you know as we know there can be two employers or direct and indirect that both were to rule for you what happens on on remained ok so we take the sexual harassment pregnancy discrimination and the retaliation issues that didn't a jury didn't see contact i mean because it felt like some conduct was already before the jury that you saw had somewhat i mean there is the court actually restricted what we were allowed to present to the jury were only allowed to go far enough to show that misread a reasonable belief that she was harassed and discriminated against and that her charge retaliation was in response to that other human rights act we had to show a little bit more than just reasonable belief we actually did show that some of it happened but the court did the court in the last to put on the full scope of everything that happened to her there we never addressed how she felt based on this harassment we didn't address all of the aspects of harassment or the pregnancy discrimination or the loss of a promotion when she rejected the the harassment there are all sorts of things that a jury never got to decide and that's what we would be asking you to read inside now even if we set aside a lot of the questions about the pretrial  hundred twenty right i actually i mean it was my understanding that he limited to that limited to that amount because that's the amount that we put in the pretrial mema but also says and and in addition i mean i think that's what your opponent have argued now you had the same question judge rove never does that even if he was wrong under civil rule fifty four c two to worry about what was in the pretrial statement if he independently decided this is a rule is to make a person whole the judge did say that miss fry looking at her history after being terminated would indicate you know this amount i don't think he was basing that on either the pretty standard of human to human rights act or a full understanding of the scope of the potential damages there i don't think that he considers the promotion that she would have gotten all of that was ruled on obviously in this french paper in a hotel room an issue but that was not presented against foreign and as to the pre judgment interest it seems to me what the district court did was to say there isn't a specified pre judgment interest rate i'm directed or you know the guidance i'm getting he says is to look at the market rates he does look at the market rate i'm not sure he would have abused his discretion if he had looked at other approaches under illinois law but it's hard for me to see that he urged as a matter of law by not taking his nine percent post judgement rate for administrative things that you wanted so if i didn't respond to that credit two thousand and eight complainants had to go to the illinois human rights commission so you filed charge of the department human rights you have to go to the commission the only human rights act allows for prejudgment and post judgment interest on awards illinois human rights commission relies on the illinois ministry of code sixty three hundred eleven think the section one eleven a four was enacted or became and acted in january first two thousand and eight and that section directs all courts to apply the same remedies that the commission applies so there's there's not a difference the legislature didn't want some inconsistency so you're going to get the same rate for the same awards that you get a commission as you go to trial so there's no reason for it to be consist in consistent and i haven't even seen a look at any appellate cases it's never been challenged it's certainly not it never been considered a penalty it's just that's the rate at the commission would be a surprise to anybody practicing commission and nine percent wasn't the appropriate rate and that issue has not been appeal after two thousand and eight when complainants could go to court because that's just the rate you're directed to follow the remedies that are given to the commission or that the commission can apply in in the instance of a civil rights violation and there's that there was no employer employee relationship between von hospitality and mr fry it was also incorrect to find that our hospitality did not have fifteen or more employees for purposes of title seven's minimum threshold with respect to the employer employee relationship as judge would you just acknowledged it's well established that two entities can have a contractual relationship in which they share control over individuals such that they are both deemed the employer of those individuals and when the issue in a case is whether there is an employer employee relationship this court applies this five factor night test to determine whether such a relationship exists and the critical factor under that  is the level of control including the powers of hiring and firing and it's undisputed in this case that von hospitality had absolute unfettered control over ms frye as well as the other individuals working in the hotel  you remind me how many others there were the parties agree that there were more than fifteen i don't think the record it's undisputed there are more than fifteen and the district court acknowledged that if ms frye is right that there's an employer employee relationship between herself and vaugh hospitality then von hospitality would have more than fifty employees for titles other purposes i don't think and your position is actually pretty straightforward if they're the ones who hire fire discipline and promote it sat around they count as an employer even if the checks say hotel call time on them correct i mean it's not just our business i think it's the position of this court through that five factor test that control is the critical factor and that includes the ability to hire the ability to fire to determine  hospitality had that power over all of the individuals in this hotel well didn't hotel actually even disclaimed that said something along the lines of we won't interfere with what you're doing that's precisely accurate so hotel coleman you know had relinquished this control via this hotel management agreement such that our hospitality had it and it's especially appropriate to impose liability on von hospitality here because it was bought hospitalities owner and president michael committed the unlawful acts in this case and so the district like the district court obviously deemed v h i a non employer in this case and in doing so the court didn't apply the knight factors it is now talked about castrated that the district court went off on a different direction and looking at smith against castaways family diner i agree went off in a different direction that the reliance on smith the issue in smith was whether particular individuals were either employees of an organization for owners or proprietors of that same organization it was not a question of whether there were multiple employers in a particular case right about that issue  number of respects law firms for example if your partner are you an owner or are you an employee correct so you could not be covered under title seven because you're an owner of an organization or you could not be covered because there is no employer employee relationship which could come up in the independent contractor context or in this joint employer context but the critical question here is whether there was this employer employee relationship between frye and bond hospitality and the district or just didn't apply the correct legal inquiry to that question and i'll just turn to this issue whether vaughn hospitality had fifteen or more employees i think if this court finds that there was an employment relationship between frye and bought hospitality then it's essentially implicit that there was also such a relationship with the other individuals in the hotel but i just want to clarify with the district court did in that context was apply this integrated enterprise doctrine from this court's decision and papa vs katie industries and again it was just a misplaced analysis because this is an out and he said they were integrated this isn't one of those split yourself into a bunch of different companies to avoid the law correct and it's well established that you entities can jointly share control over employees they can be separate entities and that's what we have here so that the focus on papa versus katy industries was just misplaced and for those reasons we believe the district or just correctly is now i to stop you there because when we look at the night tests and we look at the extent of the employer's control and supervision that certainly seems to be the most important factor and the had the ability to hire and no one factors determinative but the first one is their way did i yes i would say and the first one is clearly the most important and we do not disagree with that the right of control is the most important factor no single factor still is determined that we believe judge stark meet the correct decision by looking at castaways because two ways about a completely different question there's no question here whether you know mr advani is let's say his sole proprietor who's the owner of the organisation and do we need his body in the body count for fifteen people it's a court it's a company the question is what her relationship to this company is not how many people get counted on which side of the employer employee line with respect to the knight factors the extent of control and supervision was to a large degree delegated virus completely delegated what hotel well it's like a sub contractor works for the project general contractor works for the project and that's that's an interesting point because that's similar to the law of the g p calling case for this analysis was applied in that case the aggrieved employee was employed by subcontractor tried to bring additional action against the g c who removed him from the site and committed the allegedly scrape corey act and that and so what does the court look at the court looks at the night factors and they come out differently in that case i can't find anything that hotel coleman is doing to this employee they're not telling her what time to come to work they're not telling her what job to do they're not training her they're not disciplining her they didn't figure out how long a pregnancy leave to she get they didn't do anything well the hotel provided all the costs of operation for equipment supplies fees licenses anything that was in place maintenance why is that important for her employer employee relationship well it's one of the factors of the night test and it's the guidance that's been given but it's not the one that that is the most important plan and in fact i think  e maybe that one is a more neutral factor it still doesn't mean that she has that she can't have a dual i mean i think you're trying to make it one or the other and i think she's trying to say no it's a both and and i think that the complication with that is that it as we've seen in popover skated by the circuit companies frequently contract out to have services provided the that's a different situation that the situation where you're afraid somebody is evading the law and you're trying to see if it's one big joint enterprise is a completely different factual circumstance from saying we start from the proposition that these are two different enterprises and the question is does this employee actually have an employer employee relationship with both of them to be truthful if i had to pick one or the other i would say she's a fawn's employee not coleman's i think the case received was by d h well our hospitality was not in a long term position with hotel coleman it was a two year contract that's another reason why i would look to the brightest that pertain to the remark grosvenor just made she's pointing out that all the training happened from draw but there was a six month contract or a two year or a ten year during the term of the contract that's fine provided the training but not for every single employee who may have been on before the contract was in effect because if all of the people who are providing services at the hotel work for vaughan hospitality then it has the fifteen employees that the sea was discussing in that which is obviously nothing is shell's somehow that nobody works for even though they hire fire etc before we came to know fifteen employees because of all the hotel people work there i think even the just record realized the fifteen is met right so the point i would make is that by has pelleas an independently owned and operated hotel management company it provides services for hotel coleman and other hotels as well as a small business it simply can't succeed in the market if it's not  titles i don't that's not what congress start congress started as long as you had fifteen employees and as a matter of fact state law doesn't even have those numerical things in the standards for compliance with state law are really quite similar if not identical to the standards for federal laws so if you're standing here telling me that american industry can't make it if small businesses have to comply with the anti discrimination laws we've got fifty years of history or sixty to tell us otherwise  with respect to the knight factors going back to them at once again i have to emphasize that the test is changed to one factor being determined of that new precedent if it only comes down to control that's a new test and that's a whole new standard from obtained any specialized skills from the job or beforehand that's just not in the record responsible for the cost of the idea is that all of the training that the employees receive was by the age during the course of the contract right so when just told what does it mean in this place to be a guest representative which i think it was her job title it was vonn who were saying guest representatives do these things maybe you answer the phone maybe you man the desk you know people people come up with questions or you give the replacement keys or you do something there's some list of things that you do was a guest representative and vonn told her what those were all times was alternately responsible for the conduct that happened in its workplace for its employees therefore judgment against hotels home and she's not without recourse here the remedial purposes of the statutes are being served and by hospitality is jointly  severally liable for the portions of their own a human rights act that apply to an end the that doesn't have that same employment requirement here the statutes for it with respect to the delegation of authority hotel coleman could terminate the contract or claim an agreement hotel coleman could also terminate the contract of any employee it has who is an employee at will and yet that doesn't mean that you're exempt from the anti discrimination laws for your employees it will correct they connect terminate  on hospitalities contract as well there's a buyout provision for that i'm just saying kind of so what i mean so so they don't have to they have been married them forever all right that's fine but in terms of misphrased employment she's not on a two year employment schedule tied to the length of the contract she's tied to the hotel home and whether or not that contract without hospitality is in place you know it's like to she doesn't have to when vonage fires her she can't go over to hotel coleman and say vons action was meaningless i'm still working for you right correct she's frightened me and i soon she could make some sort of complaint but not well but it's not  know it's not because the notice of terminations came from vonn that's what everyone expects it to be well mr frey claimed she had an expectation of permanent employment and in her respect of the other factors she was always on hotel coleman's payroll she hotel coleman was responsible for the cost of the operation and l benefits came through the that's on hospitality being a contractor hotel coleman rather than an employer because her expectation of employment was to work at the hotel for hotel home and whether or not don hospitality was in place it was not tied to a contract between hotel coleman and beyond hospitality demanded in the joint pretrial order and as you pointed out an amount he independently deemed reasonable given the record judge stark did not abused his discretion by wordiness for a pre judgment interest at the average crime rate compounding monthly there is no statutory interest rate that applies to one human rights act so the primary is what should apply and judge their correctly role that no employee employer relationship existed between vi and hospitality in this fray this frey has received recourse from her employer hotel coleman and the purposes of title seven the illinois human rights acts have been served here judge there actually nine each issue should be affirmed i think you are right thank you mr randolph anything further alludes to the for measuring from the time of the violation correct so that's what the commission does and then want to live in a four of the only human rights act directs courts to apply the same thing the same damages the same pre judgment interest in this case are in this instance that a recognition of state courts eyes shone right and this was of course a state court issue and the federal courts should be following state law and if there was no human rights act right act right so was correct it would mean that a federal court could never use the state judgment true statute because those statutes are only meant to be utilized for state  court issue not then divert and apply what you might do in federal court at this time but you know i thought your argument was that the federal court was at least in title if not obliged to borrow the state prejudgment interest for the federal law and as far as the night factors as far as expectation employment miss frye went there she inspected to have a job she expected to be promoted by michael mann who said he would promote her he rejected she rejected his advances that fell through obviously she wasn't aware of a contract in that country it could have been extended she didn't have any any idea of any of that her expectation was this is going to be a job to help her her family her husband's a police officer you know that they're working class folks she expected to have employment there was