consider the merits of her f l s a anti retaliation claim her emotional distress claim under the f l essay as well as her texas anti retaliation claim these are the three main points of my argument that i hope to make this morning turning to protected activity in under her f l s a retaliation claim the district court erred in granting a summary judgment in that on her a retaliating claim because there were genuine issues of material fact with regard to both protected activity and as to causation with regard to protected activity the evidence in the record affirms that she complied with horses or met this court's test for protected activity and as given in pagan versus echostar the record ask you one thing about her new job description when did she get that she received that and signed that on march eleventh of twenty eleven and she signed it then which one did she receive i don't know that the evidence  the record points out when she received it originally i don't think there's any evidence to show when she received it originally the job description does have a date of october of twenty ten i believe and is when it began to be originated which is consistent when with when appellant starnes first reported and complained about daybreak's f l s a violations the document was not presented to her until march of two thousand and eleven and that's why we call it the after the fact job description the part about when it was given to her when she received it i would imagine there is i don't she got it that's when she signed it and i think that's when she got it for the first time what evidence can you point to that show she received it after the time in which she complained about a strong as wage situation the the job description the after the fact job description itself with her signature on it in march of twenty eleven but you're saying we don't know when she got it i don't know when she got it i don't know when she got it but i think that it was not effective until she signed it the one job description employer could i think that then that would make the reason for her signing the job description superfluous if if they break position is that the job description was in effect prior to that then why did they have  so description necessarily control or is it is that what she actually was doing i'll give an example there was after enron has houston after lawyers in town put on their website that they did white collar crime because that became the thing i can tell you most if  back that was my practice we didn't do that they just were promoting themselves when does it matter what the description of what someone is resume says but it's certainly relevant but what if that's inconsistent with what they actually did i think that is exactly right in the facts in this case show that regardless of what the job description said or says she did not deal with f l as a issues the overwhelming facts in the record show that at that f l s a issues was within the province of the age or department not start as risk management department and i think in the reply brief we point out that the that the apple e has been able to come to produce to this court and point out to this court no evidence of stars actually dealing with an f l s a issue if that was within her scope then there should be evidence of that fact she should be of any other it's a violation of law yes or she dealt with she's basically a claims adjuster for the company for their non subscriber workers compensation claims she also dealt with title seven claims but claims regarding employee compensation were within the exclusive province of the h r department and that's why when you look at the facts in this case everyone suggested the initial suggestion by everybody to and also because she felt like the partners of the organization respected starnes lewdness strada was concerned about retaliation from the very beginning because of her experience working at that company and went to storms because she felt like that if there was anyone in the company who had a chance of not being retaliated against it would be leanne starnes that was proved wrong of course or she didn't h title seven retaliation did she know she the evidence in the record is that she handled title seven cases discrimination cases and she did have that within her job s and so but with regard to what what landstar and reported and whether it meets the hagan standard the court needn't look any further than the apple lee's pleading admissions because in hagen this court said there is nothing in the facts to suggest that haven was personally advocating on behalf of his technicians statutory rights as opposed to this case where if the court looks at paragraph forty eight in forty nine of the of daybreak's answer they break admitted that starnes approached the human resources director shelton and reported daybreak's  regard to several other employees in the maintenance group and that the corporate office who had been wrongfully classified as exempt employees started says quote in her affidavit is among others that you all are violating the law by the way you're paying vincent and so she advocated on behalf of the ascribe of family and the court can look at even the district court's opinion noted that  and there would term that he was not the issue sees me in this case more is not whether a complaint was being raised with the company but one of that was part of a job and it was not a direct fit with reagan would you it's not a matter of whether a well regarded as a matter of terminology it seems to me but the fact question here is different than hagan in that there it seems to me that he was disinterested in the argument being made he didn't think what was done on changing the hours was it was illegal and hagan but here we have seen many different factual situation and it really is a matter of her job description well this court pointed out in hagen that the calculation of pagans technicians over time was part of his job that was part of the this court's analysis in the hague in the case and i respectfully submit that the fact that they can put it is that we have basically the opposite situation that we have and hakan plus there is a factual dispute as to the scope of her job duties and the evidence matter how large was just this office where she worked how many people work i cannot recall how many people worked in the office itself i think probably around twenty it's i know the address but i don't know how many people work there are people out in the field to yes or they had approximately five thousand employees throughout texas and nursing homes scattered throughout texas and that was she the only employee to handle compensation and title seven client or department was she was a risk manager and she had a subordinate that was the subordinate that michael rich used to pass the message to to lutie as strada that instigated the december launch showdown between rich and the struggle a totally different one defendants admit that landis discussed the payment of overtime with michael a rich president rich defendants admitted that michael a rich was frustrated that human resources had not previously discovered the problem on its own initiative president rich was looking to human resources to discover this problem apparently human resources was tasked with that role and human resources failed and it was who brought this or originally to the attention of human resources when she advocated against daybreak on behalf of the a scrotums what would be giving her this new job description i mean was this a complete change in her job or was it just a modification of it i mean were they taken authority away from a jar and given it to her or no sir it is i think a reverse engineer job description to be used as a defensive weapon in this case in an expected retaliation case because it is a dramatic expansion of her jobs she or her job it is she was required tasked with the responsibility of reporting to president rich all state and federal role violations of law or anything relating to state and federal violations of law as she would have to know all state and federal law in order to fulfill her job description the job description on its face i think is preposterous because it no person could do that but her lack of involvement you know and for the final year of this i mean she goes she she helps report it but then she's not involved the morning straught is really dealing with folks when this comes up how does that impact you know yes i don't think it impacts the analysis with regard to causation because we have all three types of causation running on the protect activity how does it impact whether she just you know it's a part of my job it's my job to carry on these complaints and i did that and now i'm done versus she wasn't continually pressing this issue right and she really only brought it up once herself she brought it up to andrew shelton and then she responded to mr ridge president rich came and got our about what she had reported to andrew shelton and she reported it again which is also protected activity under the supreme court's decision in crawford versus let's see you do metropolitan government of nashville if you need to cite on that it's five fifty five u to seventy one but with regard to the gap i think that the way to look at the evidence in the light most favorable to stars is that the types of intimidation conduct that was directed against her almost immediately after her reports had it there a fact they had a chilling effect on her willingness to continue to participate in protected activity they began to first of all they sed began to treat her differently and poorly coolly they began to strip her job duties away from her they obviously changed her job description they changed her supervisor mr rich was hers her supervisor up until approximately march of two thousand and eleven and at that time mr rich told her that you're not i'm not going to your supervisor anymore because you're too pretty for me to get on to and so him thank you judge davis may please the court i'll just launch right into the issues that seem to be interesting the court and that is first of all the issue of whether or not ms starr's engaged in protective activities judge shell though it's not as though they picked on her and she's the only one who got a new job descriptions mr shelton was working on new up and updated job descriptions for other people because he found that were there were some people misclassified they were out of date job description important thing about the job description is your evidence when he delivered the new job description to i don't believe there's any in the record that shows that the delivery date all we have is that the august skipping october twenty five date of the description is really important of the year she had nothing like that in the record nothing in the record that would that would identify any more than what we talked about the important point about the job scription though is this it requires or says that part of sure he may have been the one who initially evaluate whether or not mr estrada was properly classified or not but that doesn't change the fact the part of the starnes is responsibility is we're reporting allegations of violations of law that's precisely what she did here it's offend her job description it's right in her role as written that other than this issue of the strada she ever dealt with a single task evolving wage in hours of the f i suppose so but there's also no evidence that this is a material change in her duties there's no evidence that that's a change at all when the storms actually signed the agreement in march there's no suggestion of the record whatsoever that she says my gosh this is new factual disputes in factual mission and so what we really need is clear evidence read in the light most favorable to the other side oh that makes this the individual result don't respond raising some speculations going techs are some speculation but they haven't carried their burden that's herbert to show that there's a genuine as you for trial the court may say there are questions out there but that was herbert to present and that's evidence to judge sh to mandate a trial isn't there a least a dispute in the date of march of signing that document no evidence on your report that her job included that and there is a search on her part is or not that that was not part of her included this and whether she was in vacs dipping outside of her duties to report again you have to me you can indulge in princes in favor of his stars but they have to be based on the facts facts and she didn't bring four sufficient facts to show that for example the october twenty five day of the job description was after she went and talked to ms excusing mr shelton that's her burden to have done that and she didn't do it and one of the record shows for w because she knew miss starr's dealt with legal matters for the company so that's in the record as well so it's not as though there is evidence that that is why this strada went to the stars they say there are other is talked directly with president michael rich about the amount of overtime pay that would be due to her husband upon council said i'm  let me ask in in hagen and we relied on mckenzie that tenser the case we noted that if you're actively assisting another employee that is a type of protected activity and so does it matter here that it wasn't as  if starnes was sitting in her office one day looking at some paperwork and said oh my gosh i think we have an f and f it was a problem going to go tell the boss i think we might have an issue here and she's doing this on behalf of a particular employee not in her initiative and if someone comes to her in the first place  why didn't that put her within what we recognized as protected activity for actively assisting a particular employee i think the phrase and mckenzie and hagen was step outside your role by for example actively assisting so i don't think that her role is to report allegations of violation of law and this isn't something that's totally foreign to something she does she's a risk manager for the company she manages risk he often times that worker's comp claims and things like that it's certainly e e o c in title seven type claims this isn't something wholly foreign to her line of work let me i mean you you correctly noted the whole issue is that she's stepping outside of her role only ask about something else and if it's relevant to that question when this isn't that evidence that she did step out of her role but why would someone be so upset in voicing that anger if someone is just doing their job it mean all issues issue positioned herself as adversarial in the company and doesn't that indicate she was not i think the i think what she what the conversation between mrs trotter mr rich my recollection of the record was that mr there's there's testimony that miss the strada believe that mr rich was hostile but what she testified actually happened was that they're discussing how much overtime needed to be paid there's obviously some for disagreement over what's compensable travel time mr riches i don't know where you're getting  this well when her job is when this star and his job is to be the messenger she still necessarily stepping out of her role and i think that's the fundamental point i mean sometimes higher ups don't like to get bad news is it doesn't mean it isn't the responsibility of someone whose job it is to report potential violations of law that that's their job to do it it's part of it is part of the job doesn't change the fact that she's not stepping outside of her job i think you're what you're your question later we've already had the deposition testimony in iraq retore asks who participated in the decision and who made the final ultimate decision the answer frankly it didn't answer the question it was had a list of names and when  daybreak got together in the side and on several positions to eliminate they all discussed the elimination of those positions but there's no question that mr wallace is the one who said the star just position can be eliminated and that's why mr wallace was the id oh look other people were rehired but i tried to explain in my brief the record shows exactly why and the record also casts no doubt on the fact that ms starr and his position was eliminated and no one was required to replace or the other people who were whose jobs are limited they were there their jobs were limited they were out of work but daybreak found they couldn't live without to the to the to the to the people there was this foster who  and there's a third person who has jobs eliminated was josh rich he's the son of mike ridge but even the announcement of the of the elimination of his job noted that he had already transitions to work for a vendor so we look at the explanation that's there we think judge show really should no question that he was aware it was a group discussion amongst the senior leadership but there's also no question that the person who identified the storms as a position for elimination was mr wallace and there's also a question that he didn't know about any involvement i only have about a minute left hopefully the court need not address the emotional distress issue but i do want to touch on it i believe that this court's decision in dean where this court construed exactly the same when you have a list a description of a remedy and a listing of examples courts can expand that list of examples to other things but they have to be of the same character so when you have employment reinstatement promotion you have employment compensation based on remedies one case i didn't cite in the brief it shows the exact same analysis is us versus philip morris three ninety six equitable relief it describes certain particular types of equitable relief and the issue in that case is that this when the federal government sued the tobacco industry and want to discourse in the profits and it in the d c circuit said that types of relief that were actually listed principles of statutory construction show that a court can't expand the list beyond the types that are listed here the f l s a just lists employment compensation based remedies like employment promotion that's fundamentally different character than emotional distress damages and that's why the other courts for example six and seven circuit who said emotional stress damages are people they went too far they didn't complain they weren't calving by the rules of the after construction that need to address first off the concept that rich is not involved in the decision is critical for daybreak because they lose on causation if he is involved and this is the same man who as the court has noted pointed out or signed all the terminations letters who had the december ninth showdown with liddy is brought up who negotiated the private settlement with this crowd as of the f l s a claim who is identified as a final decision maker in sworn in iraq a tory answers who is identified as a decision maker in a current pleading admission that they have judicially admitted and are bound by the  concept that michael rich was a part of the people who decided to terminate landstar and strada so i don't believe that they should be allowed to disavow that as they have been able to disavow other pleading admissions and i would also point the court to this document in the record it's our away point one one zero one it's a memorandum or an e mail sent by mike rich to a number of people  f which mentions the what he calls job deletion slash layoffs and he says in this email i want to make these changes effective january first not mike wallace i want to make these changes effective january first and so what the court is left with here with with regard to daybreak's argument that mr rich didn't participate in the decision they simply cannot keep their story straight and that is another reason why summary judgment is inappropriate in this case with regard to protected activity there is evidence in the record as to when these job descriptions came into being and it was after liane reported a starr's report it if the court looks at the admissions made by daybreak to paragraph fifty two of both plaintiffs original complaint and plaintiff first amended original complaint in compares that would be our way point to a our way one of the three compared to our way seventy nine in our way one seventy one here's what they break it minute to after speaking with memo to various department heads requesting the departments to turn in job descriptions of their employees after speaking to stars they said the job description process did not begin until after speaking with starnes and that's the evidence in the record and in the light most favorable to score and that is again shows her advocacy was effective now with regard to the issue of the old job description i believe one of the one of you i think it was you just as davis mentioned the fact that he didn't you didn't think there was no jobs cricket there is no job description that job description is found that far away eight point eight five nine two eight six zero maybe both point eight five eight two eight six zero if you compare the old job description to the new job description it's a substantial increase a substantial change in her job duties and so though her role was greatly  changed with this new job description now with regard to the old job i mean the new job description it has a revised date of ten twenty five twenty ten now obviously there is no evidence in the record to establish this as the real date other than it's just it speaks for itself but if we're going to indulge any inference it should be indulged in star in his favor and they have a that these job descriptions did not begin to be formulated until after started spoken with andrew shelton but the other thing is is that there is no evidence in the record of landstar and being aware of the existence of this job description until he signed it in march of twenty eleven there is no evidence in the record of a meeting or deposition taken yes or it was she could pin that down and i don't believe i i cannot recall but the evidence in this record does not show anything and so there is a significant difference in the two job descriptions and as this court has noted there is a dispute as to