like to st address the district court's errors in granting summary judgment to the district and that all turned briefly to the district court's dismissal of the union the plaintiff has three claims against the district that must go to the jury she has claims for title seven discrimination retaliation and equal pay act claim for each there are disputed issues of material fact that were required to be heard by a jury i'd like to st turn to the retaliation claim the district court correctly found that plaintive had established a prime official case of retaliation but it erred when it concluded as a matter of law that the plaintiff failed to proffer evidence of pre the district court stated that plaintive had only raise that issue in passing but in fact it was a substantial portion of her opposition on summary judgment before the district court and consider constitute a part a substantial portion of the evidentiary record as well the plaintiff offered on contradicted evidence that within a month of her complaining to the board in december of two thousand and thirteen that she was being disregarded discriminated against on the basis of her gender was not receiving equal pay and was entitle to  reclassification the board the district human resources manager delores turner issued a memo stating that if the if there was a determination that reclassification was necessary the district would really it's basically stating the memo states in response to to mr rivera's complaint that the position would be reclassified to remove supervisory duties now but would that mean only her position or would it be also the position of the man who was at the same position well according to the district it's the same position according to mr rivera of evidence and the record is that she had significantly more supervisory duties than the other gardner and ninety three dollars does seem to be directed specifically to her the order that says the district would identify the supervisory duties and ensure that she no longer performs them not that we're going to change the position  the plaintiffs also offered on contradicted evidence that in after she filed her complaint in july of two thousand and fourteen her supervisor superintendent lam began to retaliate get against in very specific ways so she received within a month of that filing she received her st poor performance review and in particular noting some of absentee issues but those are the same kinds of issues as she testifies and as i'm contradicted in the record that she had prior to prior to that review being prior to the complaint and post complaint she also continued to experience after she made the e complaint different forms of conduct from retaliatory conduct from superintendent land her to her supervisor to certain supervisor duties were reduced she was written she was given a counseling memo and then she was actually written up in may of the following year and that written warning ultimately was retracted which is additional evidence just circumstantial evidence to suggest that when the written memo was issued when the written warning was issued i fact was retaliatory so she had plenty of out of those put plenty of evidence in the record to demonstrate substantial and specific instances of pretext and as this court knows under the thompson decision the  all that is necessary is to show as conduct that may have dissuaded a reasonable worker from making a charge of discrimination that her the evidence she presented plainly meets that that charge here taking that issue away from the jury constituted error that that needs to be reversed and it needs to go to the jury for a determination next turning to the discrimination claim the primary error of the district court i believe in this claim is that the court conflates the standards for a prime official case under title seven and her equal pay act claim and those standards as this court is aware distinct the prime official case under title seven for discrimination is as the supreme court is held is not onerous if the sum of proffered facts gives rise to an inference of discrimination plaintiff hazmat her crime a fish a case so the district court correctly finds that the only issue with respect to that the prime official case that's sort of in dispute at summary judgment is whether similarly situated males were treated more favorably but then the just then the district court essentially gets the analysis wrong when it discusses similarly situated it basically states that those any conclusion of a prime official case on similarly situated is foreclosed because it had already determined that there wasn't sufficient evidence to state an equal pay act claim that was an incorrect reading of the law it was also an incorrect reading of the facts because there's plenty of evidence in the record to suggest that in fact she presented evidence that she was similarly situated situated to those front line maintenance position and in fact if you look at that work chart that's in the record at page six hundred and eighty two you see there is sort of in very very stark visual form all of the front line supervisors and what about the distinctions with supervising journeyman level technical people i mean that seems like the key to what the district court focused on it seems significant you just call them all the same but they're not all the same are they that's a fair point and plato has never contended that the positions are exactly the same nor does she need to demonstrate that and i think this is particularly the case with respect to her title seven claim because she's a show that these folks are similarly situated and are treated more favorably there is no question it is undisputed that if she had been classified as a supervisor she would have been entitled to greater pay and so why while there are all of these technical differences in the positions given there are there are technical expertise the the fact of the matter is that the majority of the duties that each of these individuals engaged in were supervisory and management duties things like performance reviews things like managing individual person schedules and issuing counseling memos those are all the you need to know or at least it seems to me if you're trying to figure out if there supervising what so if you have a managing attorney in corporate law firm who has a supervisor or responsibilities that's a different nature of supervision compared to someone who supervising gardeners because there's a lot of technical knowledge that record in the one and very little in the other so merely supervising others and managing others doesn't tell me everything i need to know i appreciate that your honor but i think there is evidence on the record to suggest greater similarities than you're suggesting so what is that though i mean you know you can call a bank manager that supervises six people a supervisor and assert that someone that supervises fifty branches is a  supervisor and your argument would be there all the same i don't i don't believe that's correct your honor in this case we have we have the same all of these individuals report up to the same person we have instances where all of these individuals perform out but who are you supervising i think that's that's the focus you're just you're supervising you are supervising trades people in the trades people that you are supervising have different skills we are not disputing that that's the case but it's the same type of situations people journeymen trades people with technical knowledge dealing with electrical issues or mechanical issues isn't that a completely different difference in kind to supervising you know and i don't mean to denigrate in any way the value of manual labor or gardening or any of that but isn't that very different in terms of the sort of mission of the  not just these these it doesn't really break down to the technical aspects what she's talking about and i don't think this is disputed that the majority of tasks are supervisory tasks that involve personnel matters and so yes there are there may be moments where you're giving technical expertise and you do see that in the different in the in the testimony superintendent lamb versus the testimony of  at the end of the day what i would say to you is those are questions of fact that a jury needs to resolve she has certainly proffered sufficient evidence and plainly proffered sufficient evidence under title seven mid on douglass analysis to suggest that there are that she is similarly situated enough to this group of individuals who all who are all entitled to supervisory pay and additional pay on the basis of supervision that those questions need to be resolved by the by a jury but if the question is the defense that they're different still can come up on summary judgment correct it can your honor but in this case so she meets her prime facia case and this is another aspect i want to raise with the court in terms of how the district court got the analysis wrong there isn't any question that she was treated less favorably she was not entitled to equal pay the district court does this analysis that sort of ignores that point even though even though the court had recognized that clearly pay was was was had been different as applied to her but in fact the all the reclassification evidence really goes to pretext so basically we don't have any questions she presents evidence that she similarly situated to this group  wrong the district court focuses on reclassification and suggests that she didn't demonstrate that she was treated less favorably but that's not the analysis because there isn't any question that she's getting paid less and she put evidence on that she similarly situated she's getting paid less the diff the defendant's response to that it's a legitimate business reason that it proffers is to say no she had an obligation to request reclassification and she didn't do it so then in response to that evidence of pretexts and what is that evidence that she requested classification multiple times that she requested classification in writing and am board meetings that superintendent lana at during his deposition does say his understanding is that it's you  good morning your honour's ma'am please the court my name is suzanne solomon and i represent the defendant you know suppose utility district i st want to address the equal pay act claim i want to spend the bulk of my time on that and then get into the the it is true that there was a digital dolores turner memo and it is it is also true that that was not raised as an adverse action that it's being discussed as evidence of pre what what needs to be remembered is that in this ties into the request for reclassification that i'm going to talk about on the other two causes of action there are classifications so there's the classification gardener foreman and then there are positions within that a number of positions ms rivera held one and the man mr gustafsson had one what the memo from delores turner indicates is that if we have somebody doing duties that are out of class we are going to stop them from doing their duties they're out of class because we want to make sure that people are doing what their job description says so is that is not that is not enough to establish pretext it's a memo that talks about something that's not an adverse action that is alleged to have been retaliatory so that is not i mean you know so that a couple times why does it matter if it's an adverse action and to be retaliation and just just to be something that would discourage a reasonable employee from complaining right well well no it's not that elastic it actually needs to have a materially adverse effect on the person's employment under title seven  fia standard is more relaxed more relaxed but under title seven for retaliation it needs to be to have a certain tangible material adverse effect so having  person write a memo that says we we're going to make sure that people are doing the jobs within their classifications and if they're if they're being asked to do duties that are part of their job we're going to take actions to correct that that's not an adverse action i thought in burlington northern the court held that you know it doesn't have to be something affecting the terms and conditions of employment and could be a doing anything that would dissuade a reasonable worker from making a charge of discrimination so why because i'm missing what well what has to be something some tangible johnson i'm sorry to interrupt about using that standard an employee learning that if they go to their suit their supervisor or human resources and point out their assertion that they are not doing the job that their job classification says and the employer says ok if you're not doing the job that your job classification says we are going to take some action and the action we're going to take happens not to be the action you want which is we're going to change your job description that applies to you and another person the action we're going to take actually is where are going to not have you do the duties that it's our intention not to have be included in that job description that does not meet the standard of ok well i'm not going to complain because if i do complain and i go when i asked for classification i'll be told those acts there's no dispute that in two thousand and thirteen to two thousand and fourteen she got a performance evaluation that gave her four exceptional ratings gave her two exceeds ratings but gave her does an satisfactory rating for attendance there's no dispute that her attendance was within the limit that written recommendations said if you have this amount of unprotected leave you must get in on satisfactory rating there's no dispute on those facts ms rivera points out the timing she filed a a charge an administrative charge in july of two thousand and thirteen and then she said two thousand and fourteen and then declaration that had no facts that had no hours and it did say basically my leave has always been the same that's not enough the reason that her performance about no it's not enough because it's not specific statement it is a very straightforward statement but the standard is that in order to show proof pretext at the stage where the employer has articulated a legitimate business reason you need yes yes and there was exhaustive discovery in this case and at the time that these motions were filed she had access to her attendance records and did anybody put those in some other i should have thought of they would support you you would  her attendance records are in the record for the time period issue no no i'm going with the other the earlier period because somebody can be written up for something that they've been doing all along and all of a sudden the hammer comes down when it well as the later it does and it does not put them in front of the district court to contradict the statement it did not because this was again this was a summary judgment motion so in her opposition she puts and i sort of thought that if the records were available to us you making that claim no i'm making the claim that based on the records i am those records are not in the record as far as i so we can't so you don't know one way or the other i don't know what one way or the other but what i do know is that she does not dispute that her leave was what it was that led to her getting the un satisfactory rating i want to move on to gender there are three caught the court did not confuse the standard that applies to the equal pay act and two dollars the discrimination claim under the equal pay act it's pretty obvious and i don't want to belabor the point that you can't just say i'm a supervisor she's a supervisor therefore there's a common core of tasks and you can't rivera can't articulate that she was being treated differently than similarly situated males is she can't ignore the existence of stewart gov gustafson the other person who held her same position who was a male because there was a male holding the same position she had she can't or to she can't argue that some circumstances in decayed a discriminatory intent the district court did not get those standards in correct denying her request for reclassification what ms rivera fails to point out is that she stopped the process herself it's true she asked for for a reclassification it's true that one didn't happen what's also true is that the reason it didn't happen is that she decided not to fill out the form it's not true that her supervisor told her he was not going to participate in the process is not a tribal issue of fact and it seems to be conceded or at least not in dispute that she didn't fill out the form  the argument i heard was she sort of did the equivalent of that but she did not do the equivalent of that in the point what the form shows is that she needs to go forward and say here are all the duties that i think i need to do in order to be reclassified then the supervisor responds responds to that so she can't just bail out of a of a process and say i don't need to do that mr lamb is not responsible for reclassification he is a supervisor h r handles re classifications so to the extent he may have said that he thought it worked a certain way that that's not pretextual that's him not not knowing how create classifications work ok thank you thank you it please the court my name is carrie and steele and i'm counsel for aft me local four for four appellee in this case we ask that the court affirm the district court's grant of a twelve b six motion in favor of ask me local four for four without leave to amend and i for at least three reasons in the court make a fundamental mistake in basically coming out with the wrong black letter rule that unions because they're not employers and therefore have no liability isn't that just falls as a matter of law there is a misstatement of law in a footnote and what the court from the entirety of the order is attempting to express is that individuals cannot be liable under title seven and then there's a citation to the miller versus maxwell incorporation case now at that moment in the decision when the court wrote that in a footnote there were claims being considered of discrimination and retaliation under title seven as well as e p a in paragraphs ten thousand one hundred in one of the st and many complaints those are alleged against a number of defendants eastbay mud as an entity asked me local four for four as an entity in a number of an event individuals that footnote dismissed the individuals it should have said that there is no liability against individuals we think that omission of the word individuals in the footnote is a mistake that could be overlooked it was dicta as it pertained to ask me local for four for the decision and then proceeds to analyze the entities that are remaining to be considered for a title seven liability and that would be used very much as an entity and forty four as an entity and there's discussion of the failure by the plaintiff to plead any claims that constitute so the normal default is leave to amend no leave to amend would be appropriate if you look at the entire order there's already discussion by the court your honor in earlier passages about how ask me local four hundred and forty four is a union not an employer and it does not decide who is a supervisor it i assume a collective bargaining agreement with negotiations between both sides in this civil service system the east bay mud has the classification plan is designed by the employer this is pursuant to the authority of the public utilities code they have civil service rules that spell out the classification plan and how a whopper ate as well as how to study whether possible way so essentially any leave would have been futile yes and so what we're asking this court to do which was an earlier question posed in the case this morning is to look at that footnote as what it is which is merely a misstatement of the law because there's omission of the word individual before the statement defendants and then to look further and say on the face of this complaint the st of many complaint there is no possible way that claims of title seven discrimination or retaliation could be stated against me local four hundred and forty four it was not in a position to be able to change miss rivera status that is something that is done through a reclassification request through the human resources office this was not about a provision that is in the memorandum of understanding and other words the collective bargaining agreement that plaintive on the basis of gender for example not where like here there is access exclusively by the employee to the procedure not by the union just to be clear if an employee went to the union and said i think i'm being misclassified you know can you help me the union would say there's nothing we can do for you go talk to our i'm not saying that that would be their practice and that there is  necessarily history of that happening here what what we are saying and on the face of the complaint it's evident that and now through the developed record it's confirmed that it's the employees right of access to that procedure the union is not involved it's not subject under the collective bargaining agreement and certainly the union has no ability to determine whether someone's a supervisor or you may not have the ability to determine it but i guess i understood her complaint to be suggesting th the the pros are amendment to the complaint maybe to be suggesting that the union would be able to pursue a grievance or or do something to help the employee and you know if they were doing that on behalf of male employees who complained but not on behalf of  her that would be the allegation she was making and you're saying that there there isn't anything meaningful that the union would be able to do to help an employee and that is what i'm saying say in your honor that there's a fundamental misunderstanding of what the union can do in this particular instance and on the face of the complaint it's clear that no amendment could have salvaged her claim it would be futile to do so at this point so we ask you to please affirm the order we also ask you to grant our request for judicial notice because it is important to see those civil service rules showing exclusive access by the employee to the reclass procedure and they also contain the memorandum of understanding that show that the employee has no right of recourse under the collective bargaining agreement response so let me briefly address the union's arguments on this record there is no question that plaintiff is entitled to leave to amend to assert her claims if you look at her original complaint that was dismissed she absolutely has plenty of allegations in there to attack the union's conduct with respect to gender discrimination and retaliation and as we know from the the record that is now developed is it is false that the union does not have power to engage in reclassification attempts it's in the record that it has the authority to work with the district and with local one to make that happen and it has done so so on that issue certainly that the order of the just a court needs to be remanded  correct district gets the analysis wrong this this this adverse they're attempting to graft adverse action an adverse action standard onto the retaliation claim and it is clear under a supreme court  conduct has to dissuade a reasonable worker from making a charge that's the issue so when you look at st the turner memo obviously a memo after making a complaint that suggests that your supervisory duties are going to be taken away from you would dissuade a reasonable worker from making a complaint you also then look at the attendance issue which your honor brought up it is true that there is no contradictory evidence in the record what we have is mr various statements  had basically the same amount of leave before and after and i was treated differently i think that it's not true that the district in have an opportunity to put evidence in if there is new evidence offered on the opposition brief district courts routinely allow response of evidence in a reply brief the district court failed in the district failed to do that so that is an at that is a question of fact that has to go to the jury and the state her statements are specific and substantive evidence with nothing to rebut that evidence by putting anything into show no in fact to their argument no in fact that the attendance issues were woefully worse afterword right now the i just heard this morning that she has the better evidence of her actual attendance records how do we know that we don't your honor we don't have and there's nothing in the record to suggest that she has the records the district doesn't have the records as in the ordinary situation somebody shows up at work and does not keep there is nothing and that there is nothing in the record one way or the other on your r and then with respect to this audit this audit form again that's a triable issue of fact and just the argument i think really really supports that that this is an issue a  to resolve the fact that superintendent lam isn't an h r doesn't change the fact that what you have in the record is mr vera complaining directly to h r in writing and requesting classification and then going to the board to do so so to say that she wasn't noisy about her request you know would be a gross misstatement and it clearly presents a nuff evidence on the record that a jury would have to decide if the diff the defendant's argument that she didn't complete the