employee for purposes of receiving the protections of title seven no staff position well ever receive those protections and yet this court has stepped in alexander there are those situations where staff do deserve the protections of title south and the sport you're seeking to apply the economic realities tester and first factor says that the extent of an employer's control and supervision over the worker is relevant are you arguing control or supervision here or is it and is there a distinction between interfering with her ability to treat taking her patients away controlling her practice by repeatedly reviewing and re reviewing and also in a supervisory manner reviewed and a more stringent basis both in terms of the number of cases reviewed as well as the criteria applied compared to any other general surgeon and the case law has said that control is the most important factor in determining economic realities what impact to supervision have the control and supervision are operating to link together is there a distinction between the impact that supervision should have in assessing levels of supervision of reviewing and really reviewing cases that have been previously reviewed for the purposes of exercising the control over her practice depriving her of her ability to treat her patients so i think both factors apply in this case and i think it is this continuing nature of the super level of supervision of the bylaws in this case in fact impose on the individual defendants with the duty to continuously survey dr robertson's practice other than general surgeons practice the difference being in this case that are i believe that that evidence goes to both questions both whether she was discriminated against but also whether the level of supervision and ultimately control  for purposes of defining or is a defacto employee and why is that a sound interpretation of title seven title seven clearly interpret it clearly contemplates that the there is some set of circumstances where an individual is in fact although a staff position or in this case a defacto employee for purposes of the terms and conditions logically prior to the question of whether there was discrimination at work in motion of employees status comes first and is not determined by the discriminatory acts determined by the contractual relationship between the parties i have to take two responses to that solomon teaches your honor that the level of supervision and control well which really is the question of what that contractual relationship was between the parties that's true but in this case judge i would say and it's hard to take it outside of a hospital setting the hospital had a po it protected in theory all physicians staff or otherwise to grant them the right to a safe environment to operate on or an up in this case operate on intreat the to treat their patients so they're the destructive physician policy of the hospital granted that right to all equally it was not applied equally and the factors that the court the employee is the deposition treated in such a fashion that converts them into an employee and this court has recognized that that is a circumstance that can exist in the alexander decision you know it was really just a rhetorical question not any sort of legal holding no i understand i mean i understand the court's concern you know what is it that distinguishes situations for purpose the circumstances but at least in the court analyses that level of control and supervision that is exercised is considered to be the most important factor it is you weighted differently in kind of argument she makes i'm deciding it's unpersuasive he stops his analysis what evidence that what the hospital did had any kind of control over what the doctor was doing during her surgeries i understand your arguments about supervision and impacting her but in the surgeries is there any evidence that they were impacting or controlling what she was doing with respect  criticizing judgment asking what on one occasion was that was on one occasion but there were prior occasions i mean which he barged into the treatment room challenge  treatment criticised her judgment told a patient that he had had disastrous outcomes which was therefore don't have surgery with her caused at least two patients to that we said met is not continuous supervision and as that peer review process continued for about almost two years the investigation based on the complaints about her medical work so we can talk on the record does not support continuous supervision is there a difference between vision and control under the economic time your hope patient and scrapping it endoscopies excuse me we're going to tell you what medications can you resign your patience and we're going to recommend changes to your practice which according to the record impacted the he said i would only review them to see if the schedule surgeries were within the scope of her credentials and he never he never actually did it he never told her don't do the surgery he was merely trying to make sure that nobody did a surgery for which she wasn't credentialed which hospitals are required to do i mean what's what's the first defendant named in a in a medical malpractise suit the hospital and then the various doctors hospital at pages two twenty nine and two hundred thirty of the second circuit opinion and salamon you'll see an expert extension explanation of what our lady of victory hospital required this to be like to do we have nothing like this you know under the night ocean alexander cations of the circuit weather turned we should met is an independent contractor and not protected by title so she was self employed she owns her own surgical practice that's where the expert opined that the tractor had been subjected to a greater degree of scrutiny than other doctors what impact should that have on the control factor of the economic realities we s be given very little weight because because it goes to a disparate treatment analysis and not the the predicate getting to first base which is are you an independent contractor or do you have an employment relationship with the defendant whether whether she was treated differently and we dispute that we dispute that whether she was treated differently than male physicians does not reflect hospital at some point in time does not mean that they were part of some conspiracy to get rid of them when the two thousand and eleven medical executive committee second investigation was touched in the room during those just that's why i don't believe he was in the room at least when the board of directors voted for the board of directors voted in january of two thousand and thirteen i believe he was not it addressing this question occurs as a regular course of the hospital's business and we don't dispute that and that process however has control it has procedural protections for staff positions which are that this supervision is for quality reasons within the professional and regulatory environment this case exceeded and the level of review went well beyond the quality of care and in fact that's the nature of the shared peer review confirms that is that this doctor was subjected to increasing wells of scrutiny outside the quality assurance process and i retaliated against its decision when it reviews the fact that after complaining about the conway suddenly after a ten year career with no malpracti no issues she finds herself defending six years of cases going back six years there have been looked at reviewed and closed and now she's defending  process present and able to participate he not only crafted well first of all he was aware of conway's harassment he took no steps this is a little heartless surgery to curtail despite that testimony he was in the meeting on december thirteenth two thousand and eleven when they voted for the one five minute procedure which we dispute their characterization of that he was in the meeting signed and was in the meeting whether he voted or not he was there to discuss it he was on the board and voted and  abstain from voting but he was there to participate when they were view the j r c decision and he was in the board meeting on january twelfth two thousand and thirteen when the circuit court told him not to be there and the ca e the circumstances were reviewed and whether he chose to be voting or not i think is not the point he participated in every step of the process to ensure that the sham peer review process resulted in the