good morning may have please the court my name is steven montoya i'm here to argue my client's case mr marvin bagley that we believe was improperly dismissed by the district court below in reference to mr bagley's retaliation claim because a material factual dispute precluded summary judgment on that issue the facts are in large part undisputed back in two thousand and eight in may my client who's african american was working he was an apprentice working on a construction site  it's not worth going on we do know the facts ok after he complained and here's where the material factual disputes began after he complained about the noose incident to his direct well not to his direct supervisor it was his direct supervisor vernon mcbride who waved the noose in his face his boss's boss mr will guy marvin bagley complained to mr guy that his boss mr guy told him that he feared for his safety mr guy fear for mr bagley safety that is because mr mcbride had been in the trade a long time and he felt that mr bagley's physical samaritan job site and there's a factual dispute regarding this because first of all this guy said that's not the reason why i transferred him even though mr guy testified under oath that he's the one who made the decision to transfer mr bagley he couldn't remember why he was transferred now mr guy's boss is another guy his name is drew schroeder he also he contradicted his subordinate mr guy and he said i transfer on whether it depends upon the specific backs of the transfer i'll tell you what made this involuntary transfer an adverse employment action alternately is because  moment that there is a sufficient conflict material facts with regard to the reasons for the transfer why do we do with the fact that he was then  limitations period problem well i think under this court's case law judge burton it's clear that regardless of any retaliatory intent you cannot transfer someone to a worse position after they complain even if you didn't mean to suppose you don't mean to transfer someone to a worse position your fact it is a worse position i don't i don't get your analysis what we're talking about here is this shifting burden of proof they came he said he was he was improperly fire they provide evidence that there is an adequate reason person says i got him another month by transfer and now then the burden shifts back to you to show that that that reason is inappropriate that is it's really pretext and they're lying about now understand now what your evidence of the thank you for the out analysis judge wells i don't think thing met their burden adverse action they said as your honor pointed out when he was a layoff it's only it was a layoff but that's that there is a big problem with that with the district court ignored with completely in the district court's order and that's this court's opinion in davis versus team electric in that opinion this court said quote it's not enough for an employer to simply stay that it decided to lay off a group of workers to meet this burd and let me pursue this line of question yes johnny thank you and page thirteen of your brief yes you say moreover in his deposition mr guy admitted that bel air was way the where it came out was there was a discussion i looked at your citation and this was a discussion where they were talking about this not tying it episode and he said and the answer was you said and now as foreman aren't you supposed cheech apprentices how to do their job isn't that the part of the job answer there's a school we have classes there's a not trying class were they screwing off yes should have been on the job making knots no question i hear you answer up there in the area where they were working they were behind that's the record not that the whole bel air was wrong was behind but in the area where they were working and you cited that you cited that and put it in your brief and that's a misleading statement of the record of your honor i respectfully disagree and i'll show you in the record where the record is much richer than them well that's what you cited work wasn't getting done on your page one fifty three that job was in trouble and we needed more no more of that going on i was there to help the job ye going again i don't i'm not i'm not arguing with you about that what i'm saying is i went to your brief saw your statement and your citation of are you got it and i read it and it was in there well and once again your honor i think i have a throughout that the job was in trouble the job was behind the work wasn't getting done i'm just pointing out for your grief when you made the statement you cite in this record and use misguided well your honor of still am still confused about how you're feeling with the question i raised at the outset let's assume that there was work to be done they're doing not the job as hall and that the specific work he was assigned to was completed and they weren't going to lay off some other apprentice in order to give him a job that's one of the things they say right that's not what the present question that you adequately demonstrated at least that there were facts and just deal with regard to why he was transferred and and given the fact no matter what was the case of whether the job was continued or not continued the fact that that mr gaius had his name said that he was transferring him because there was an in there or there was some evidence in the record that guy said he was transferring him because  how do we connect what is at least medicine positive for this purpose a material conflict in the facts with regard to the transfer to the ultimate layoff case that would go to a charity but you didn't file the case in time that's what i'm trying to get to the case was not let's assume that the transfer was head first let's assume that there were at least a nothing x ten demonstrate pretext with regard to the transfer the transfer is not what is actionable at this time when is actionable at this time is the terminations well your your honor that the transfer was an adverse intil it resulted in the trauma nation it would be it was set in place but the injury didn't actually result in to july third a year honor it was set in motion it was kind of like a sexual harassment case that develops over time oh you're really saxe see is that actionable in and of itself no but when it ultimately leads to something else o good morning please the court i'm just in pearce on behalf of bel air mechanical and i think perhaps the most critically important thing to understand in the context of this case is we're using terms like layoffs and terminations very loosely and in their ormal employment law world we think of those things as adverse actions in this case and even the transfer judge  it's very different this relationship bell or mechanical is one of many contractors that has a relationship with the union that provides the apprentices and journeyman plumbers electricians and others for their know the the testimony was your honor that as a job is finishing as a job is good and there is no question about that even mr bagley himself understood this is a twenty two million dollars the dial project was huge it was a ground  and your honor that's where the burden is to show with specific and substantial evidence that our that our reason is baloney it's its pretext so she would need to say well no the most important thing about the transfer is that is outside of the limitations period so and it is a discreet act now our argument actually in our briefs as well as that and judge bolton didn't make the decision on this point but that when he went to the banners and when he moved to the banner site and they said you know we're wrapping up here too so they had him do some cleanup things and other stuff he said at that moment i knew that i was being that i was being move for for for my complaint now that is outside of the the the period two and the case law is that it's when it's when that that would be the discovery point and would would put this outside of the limitations period judge bolton didn't find it on that we preserve we wanted to preserve that because we believe that the court could find that the entire thing was time barred but even if you take the the alleged retaliatory  lay off terminations your honor this is where he can't he doesn't present specific and substantial evidence of pretexts again disunion yes he went on i think he finally came to it i understood that he had two theories  choose it's it's paul it's apprentices and journeymen and this is all in there and this is in the record what happens is bellairs job finished they returned we know that in may june and july of that year no mr bag was in july there were forty people sent back to the union hall from the dial project alone nearly a third of the entire workforce of valor this is two thousand and eight this is tough construction time in arizona so he's mark is eligible for rehire go with me for just a second the very next week bel air lands a huge new job you know what they're going to do based on their collective bargaining agreement they're going to request that the union send them forty apprentice plumbers in their first and second third year to start a brand new project they're not going to say who that who they can and can't have unless somebody very he could have been and would have been because of a plus the relevance of that i don't understand because of bel air because bello marked him as eligible for rehire if they wanted to get rid of a guy because he was a complainer they did a very bad job back to s n f right i assume that and i think i remember this from having actually represented as i remember that your background your honor that you go to the bottom of the list and then you come back up again so experience in a lot of different areas and so the suggestion that he was going to be with us for ever and that's again where i see the importance in this case is understanding this you this relationship between the car this contractor the several contractors and the union and how this works this isn't a davis situation that's the case where we let somebody go and they're gone for good and we were reorganizing we may not ever have another job this is a he's gone until the next opportunity for us the union decides with with whether mr bagley comes back the very next week to us how can we have how could it be found that that there is a that that that the cause for the light off was in fact this complaint as opposed to the fact that this is how the process works day in and day out every day of the year nothing out of the ordinary happened here with regard to mr bagley testified people get laid off all the time this is how it works that's his testimony he acknowledged that this is the way this trade works why would it have changed in this one circumstance it he's got a present specific substantial evidence that our reason is we said your job finished just like it always does we sent you back to the union hall with  more than anybody it's a five year program so a first year apprentice isn't the same as a fifth year apprentice in terms of what they can and can't do so he has an it would be his it would be up to him if he's going to prove specific  substantial evidence of pretext he needed to say no your reason isn't right because look there were five other first year apprentices on the job and you have basic reason is essentially he was laid off and of course i mean that's essentially he was laid off in due course with a whole host of other people who were being laid off at or about the same time our evidence was that this is the closing part of the of of the project the  primary project he was working on in which the more senior apprentices and journeyman are going to be the one that are going to finish this project he does not fall into that category but so he he gets sent back to the union hall and gets another assignment two business days later just as it always works so he's got to present up our history everything that was done here was done consistent with what's been done and what answer to which took some trouble getting out but which i now understand why news that really we do come back to the terms of the transfer because the transfer it's not out of time until one knows what the actual result of it was which was terminations or layoff within a few weeks and that therefore the motive for the transfer is of dire one time transferred relatively recently for any discrimination connected reason i understand you dispute that but but in terms of at least for some evidence that that  all it would do as was would be a what would allow you to consider the transfer in the action with the actionable item but again in this in this situation that doesn't apply because even mr bagley himself said as soon as he arrived on the new site he was told why are you here we're done here and he is testimony in his deposition i knew at that moment that that i was being moved out the door well then that's the accrual of the claim and that and that's more than four years back so that that looking at the terminations without regard to how he got there yes i believe that that is what the court should be looking at and it needs to look at whether that is the cause as opposed to the other and when i say look at the cause the question is has he presented specific and substantial evidence that we somehow went out of the ordinary in what we did and when you look at the case and in its full context we did exactly what we've always done thank you very much things your honor judge burton you mentioned that they hired another guy dollars counsel just denied out e r seventy eight and i was laid off in july third i don't know how long they stayed there after that part of there's a big difference well there were two people you know they say they're out of work but yet can people continue to work there for months second of all in fact just mr guy testified they keep on saying oh there are tons of reasons why we chose mr bagley instead of another apprentice however none of those reasons are in the record the guy who who claims that he's the one who decided to transfer to terminate bagley drew schroeder e r two sixty two here's the only reason that he gives and this is why i argue to judge wallace that they really didn't meet their burden to rebut the