third case this morning is a cost of vs foreclosure connection some dash forty one and eleven mr ross you proce owners and chief judge david ross i represent foreclosure connection inc and jason williams in this matter referred to foreclosure connection department of labor as secretary are human i believe is quite simple whether relates to the issue of whether or not there was any retaliation in this particular case  fifteen were of the opinion of course that they were fired for that purpose in our gang argument simple that for purposes there to be retaliation it would be necessary for the decision maker in the court as presented ample findings that jason williams was the decision maker he made decisions on a daily basis who did what work when and where and he's the one who ordered his form inject eriksson to terminate the barber's determination occurred on july fact that that jack erickson told the barber's not to show up to work that morning and they typically would show up about seventy and it seems a simple ambiguous that conversation to  e you wouldn't necessarily construe that as a separate so separation of employment it wasn't there evidence in the record that you know they were they would come to work as needed and that if there wasn't work on a particular day they need not to come to come to work seems to me like that the conversation on the morning of that jason williams the owner of foreclosure he would on a daily basis decide what workers work what sites and as far as i know and there's nothing to record about their working this day or that a they worked every day the workers did and on the various projects that foreclosure had it was just a matter of and the courts finding and and it's our position and i and i believe if you don't point one paragraph in one that is under paragraph thirty eight where the court is talking about the barber working on july seventh at the lamb warren work site and the court refers to this as being the day before they were fired and the court is determination but of course making that statement that they went to work on july seventh at the landlord site and that was the last day before they were fired would clear clarify the record for me so there was that conversation in the morning of the eight them the investigator from the state interviewed one of the interviewed mr williams or mr erickson and then isn't there also evidence that then on the afternoon of july eighth erickson was instructed to tell the barbers that they were terminated and that i don't those in evidence it was the and let me go to your position on the sequence of the sequence of events if i'm right in this opinion russell what's the winning see or get the winning timeline is that the record in addition to the court making the finding that they were fired on july eighth michael barber seen here or barber seen here also is of that same opinion he they were told not to show up to work and yet indicated well they would work some days not they worked every day and after july eighth they were not invited back in fact and the investigators actually one from the secretary's investigator sheffield he appeared at investigator on july twenty third that quote not fired just not invited back to work in the quote another words and i agree with your thought process you know was he and you know he was a general contractor but he made a determination that they were employees and they did work just that there were just a few days that michael barber did not work that occurred even before sun went to work for foreclosure but they worked every day and except for holidays and weekends foreclosure none of the employees worked on those days but they worked every day and so on that day they're told they're they're not invited back afterwards so i kind of look at it as the effective date of terminations would have in july when they're told not to show up to work and they're not invited back and they're not assigned work and that's the end thought process of michael barber senior that thought process process of my client and the court made that finding th firing date so i think that you know i don't know of any other day where they were fire there with the next sequence after the parents of sheffield he the secretaries lead investigator in this manner he appeared and announced that he was conducting an investigation explain what he was going to be doing asked for some documentation and then that week it interview workers on site that asked them you know interview them find out things so and jason williams was aware of this in fact to get more clarity a week later and this him to and then he goes in to make the statement because this is a finding by the court because it is likely that the that they turned me into the weight in our division and that doesn't sound like somebody who knew about any these the overtime claims and knew about the filings on july seventh by the barbers at the u s department of labor what's the what's the central air by the district court i'm sorry what is the central error by the district court well there's two things we indicate that there was a  conversation that's between he and the barbers the barbers contacted him and they recorded the conversation unbeknownst to jack erickson jack erickson and mr barber even though this is after the germination  had been friends for over twenty years that's in the evidence and they hit than roommates at one time and this is a very candid conversation in that conversation the court is using that conversation  to demonstrate that there was an adverse action maybe the judge was concerned about the fact they're told not to show up to work doesn't sound like you're fired and with the court in order to show that they were f goes to look at this candid conversation between the barber and jack erickson were jack erickson is stating they were fired so now we have the adverse action what has that or say action however in that same conversation jack erickson an agent of foreclosure in the foreman is also stating the reason they were fire he's stating it was because challenge that finding that the it wasn't even necessary for there to be authority under the f l i say for to make a finding of retaliation under twenty nine u s c two fifteen and we did not challenge ok i'll give us a roadmap ok in this particular case our thing is that in order to retaliate against someone the decision maker has to have knowledge of the protected activity and in this case there is just no evidence and there is actually it was they didn't have there's no evidence that the decision maker again a finding by the court that he's the maker had any what sites you want to work on who you want to work in there and so forth and he went into three different paragraphs of making that finding that he is the decision maker and he's the one that court in the candid conversation that was recorded it's jack ericson talking about jason's telling me to fire so the you know he's the one who is the decision maker on the germination and the point i want to make is that and i know i'm running out of t but there was one really critical point because it was no finding by the court as to whether or not jason williams knew about planes of overtime from the that would also be a protected activity i mean i think it's clear and real quick on the that he didn't know about their filing of the complaints the logistics are that they follow the complaints in salt lake city that's where the u s department labor is and their offices are in utah which would be like a complaint filed here against somebody in the ror colorado and would they know about it happening that afternoon before seven am the next day not likely and we also have the testimony where he is saying that after sheffield keith has appeared and there's all these investigation going on that it is that he wants tells jack never hire these folks again because it's likely they turned the in if he knew they they knew the barbers were working on july seventh two thousand and fifteen the last day before the barbers for far and there's a similar has underlined here  where for the court said that and i just don't think we can ignore that and say obviously the district was confused you make a decent argument that we should send it back down for the district court to clarify would expend additional resources where it's clear from the opinion as a whole and from the conclusions of the district court through that that language is perhaps less precise than one would like but isn't consistent with their reading where they were i didn't understand whether the whether the farmers were fired in retaliation for complaints of asian artists the lesser they worked with july seventh they didn't go back after july eighth they weren't invited back that morning the evidence indicate because there was a work stoppage because of an issue with city permits and they were indicated there is some evidence in the record that jason williams made the decision by leader in the day on july eighth and it's also the case that the decision not to hire them back because they had complained to the region our division is an adverse actions regardless of retaliation i don't see it's kind of off hand implied in one provision but if you look at the statutory provisions given the deal authority i don't see any that specifically says you can the right of action by a private person terminates upon the secretary of labor doing something which is a strange way to confer authority on the power of labor and that's why i was curious about where it is there and i can find any specific authority out there any case law saying that deal has the authority to bring a claim for damages not paying over time that's clear they have authority there and they have authority for injunctive relief when there's retaliation presumably i just don't see any provision that gives authority to bring a claim for damages for retaliation and i didn't find any clear understanding by the courts that that authority exists it's again the issue is ignored as it was in all the briefing in this case but sometimes you have to write an opinion and you start out because it was a argued but it's a fundamental issue set of actors and just covered employers but also to hold that foreclosure is a covered employer for purposes of the minimum wage and overtime provisions of the act there is an ongoing over time investigation of foreclosure and foreclosure has repeatedly argued that summary judgment in a motion for reconsideration and then again a trial but it's not a covered employer which prompted the court to ask the secretary to present evidence on this issue and for closure should be precluded from continuing to argue this this matter and is that clear on the down the damages question yes whether the yes and council will give you fourteen days if you need more let us know right counselor excuse a second time thank you