please the court the disc district court in incorrectly granted summary judgment and found that my client was a minister in the ministerial exception first recognized by the united states supreme court in tw the twenty five decision hosanna taber making this ruling the district court failed to look at the totality of the circumstances or that all of the circumstances of my client sixteen year employment as a fifth and sixth grade teacher at our lady of school this is especially apparent in light of the this circuit court's most recent decision in december twenty eighth team kristen bell vs st james school which also involved a fifth grade teacher at a catholic school in that opinion is it significant here counseled that the terminations or the decision not to renew the contract was made by the principal of the school and not a member of the within the church i mean the supreme court in hosanna tabor said is that the exception ensures that the authority to select a control who will minister to the faithful is the church is alone did the church make the decision not to renew the contract or did the secular principle of the school who there's no argument in this case is a minister or clergyman is there is there a distinction here as to who the decision maker is as to whether or not the exception of pause or doesn't apply i think certainly you can make that distinction however we do have to say that the principal is acting on behalf of the school which in turn is acting on behalf of the  church so i would certainly say that the it does kind of cut both ways she is in a secular role she's not formally you know acting on behalf of the church but she is representative of like i said the church found incorrectly found reliance on function alone would render most of the analysis of a hosannah taber irrelevant dicta as one's function was but one of four considerations raised by the court and hosanna taber counsel are you on time your honor i don't believe it is in our reply brief we discuss starting on page twenty two we discuss the determination of whether the statute of limitation applies really runs into whether the plaintiff has a complete and present cause of action it's our position that in terms of her part time position she didn't have a complete and present cause of action until she actually began in her part decision is obvious that the statute begins to run case supports that i would say two cases one the green versus brennan twenty sixteen in the united states supreme court for that general principle that think contractually you have to look at it in terms of we look at in terms of contract law between the time in which she's informed that should be a part time into a part time position and by the time she actually begins working in that part time position there certainly is a period of time in which the school could change her could change their mind in which the type of role that that she wanted to be scuse me the type of role that the school wanted to place my client into and i think also  versus brimming with one case that support should have position and what's the other one yes in romano versus rockwell international it's actually california supreme court case however the scratched out one so green is the only federal well the only reason i bring up the california supreme court case is that they do actually get into a analysis of federal law in terms of how they frame the issue for purposes of the fair employment and housing act that's not binding on us so the green decision is the only employment discrimination cases the proper focus is on the time of the discriminatory acts and not upon the time in which the concept become most pain i guess i'd like to follow up with judge we're also was asking you here it seems the discriminatory act you allege was plaintiff's demotion going down to the part time job you don't seem to point to any case law showing the an eighty eight claim for unlawful  two six three we actually have in our reply brief page twenty eight footnote four we put that on and fall under the the it is indicated a statutory intent to  i'll just read in part for purposes of the section the practice occurs with respect to discrimination and compensation in violation of the shaft or when a person becomes subject to discriminatory compensation decision or practice or when the person is affected by the application of the discriminatory compensation decision or otherwise practice and for that we again we come back to the fact that she didn't fully receive the full effect of her demotion u r again the green the green decision in terms of the way we sided actually is for the general principle in terms of when a first statutory voces the plaintiff has a complete and present cause of  action i would note that in the discussion in green it says a cause of action is not to become completely present for limiting purposes until the plaintiff can file suit in ten relief this is the standard rule which then in turn can be displaced such that the limitation period begins to run before plaintiff can file suit court's went on for an odd result in the absence of any such indication in the text of the limitations period  because much like mr green who was construct who constructively discharge or was terminated the effect of it literally is until mr greene walks out the door and is no longer receiving his pay you can be told that you're going to be that that's the fact when he's actually out the door that he fit if he's terminated six months before he leaves the effect is six months later but the time a nation is six months previously practical considerations here is that it's in essence confusing for an employee if for purposes of bringing a claim into the eighty e a a and dealing with the c is she certainly began feeling the effects of her demotion at the time in which she received half her pay like i said before the school could certainly change their mind they could you know repudiate the contract in total give her a brand new contract there's many different ways it could go before she actually began feeling the effects but she knew understood but we keep coming week we come back to the have so you should move on to something else because i think you have a different perspective on how to read this for us so we understand your position if you want to move on to something else ok let me apply and in light of the circuits precedent in b o how much difference should it make in this case that in this case the teacher actually led her classroom in prayer both prescribe written prayers and spontaneous prayers whereas in below the teacher did not pray with the students at all how much or how little impact should that weigh in the totality of the circumstances analysis i think is a factor in there but i think you have to put also back and look at what she did testify to in the record page two seventy seven she testified that she didn't lead a religious service did not have any input selecting him this did not deliver religious message did not prepare students for to alter served during weekly mass other functions of her physician should also play into any conflict i agree with you to totality of the circumstances but i'm not asking about what she didn't do i'm asking you about what she did is that a major factor is that a minor factor how should we properly weigh the distinction between this case and be aware that two competing teachers one led the students in prayer one didn't i think it it  plays into a factor i don't think it's significant because i think there is a component there of significant religious service or significant position of significant leadership and which how did the students view her and the fact that the fact is that she was not getting up there leading religious services and then when you put in all the other factors in accordance with it i don't think that simply praying with your students immediately makes you a minister under  which commented on our ninth circuit's functional approach to the functions and duties of the individual for purposes that determine whether or not they're a minister what do we how significant  is what's your view on how we should consider share i'm just shy of two minutes i'd like to reserve just a minute of my time but i'll happy to answer that the justice alito concurring opinion which serves as the basis of their papers my o nt's moving papers or responding papers really some of point distinctions number one justice alito does not say that title or theological education and background should not be considered the way he frames the issue is it's a warning to courts that each case should be looked at individually on their merits and can't be viewed out under a single lens of you need to find a title you need to find theological or some kind of specialized educational back  make up so i think those title and education must be considered i think also in looking at function while he states that the decision in functional consensus approach is left undisturbed i think then it gets back to the way that it's left undisturbed but it has been significantly changed i think it's been changed because we've gone from functional consensus to totality of the circumstances and then it's properly re weighed in the subsequent cases from the kanada case in two thousand and twelve all the way up to below you see that it's been weighed in relation to the totality of the circumstances and then i think just in general we have to remember this is a concurrence there's only two  internal church decision that affects the faith and mission of the church itself specifically a source of religious instruction who performed an important role in transmitting the catholic faith in the next generation and conveying the church's message and carrying out its mission well that's only true if the hosanna taber functional are the four foundational sort of approach applies where you are is actually reading from hosanna taber except for the word catholic  i believe that that description fits our kids and that's the i think that's really the crux of the of the case today and tell me what why does and what's your best arguments for why and what believer best argument  is that this is a bedrock right under the first amendment the right for a religious entity to be able to select the individuals who minister its faith and that gets this must in because we have to whether or not the teacher was a minister as opposed to a teacher so all right what in the record support the notion that under the totality of circumstances this teacher was a minister well if we're looking to look at the four considerations that were discussed in hosanna taber i'm in the considerations it's not a four factor test if three i would say three of those considerations weigh strongly in favor of finding that ms morsi proo was a minister obviously i don't think there's any dispute that she performed important religious functions she secular correct the yes is a teacher at all times the title itself the bear title is the only factor that weighs i guess let's say and she took a single course in the history of the catholic church well she took actually her testimony was that she took it multiple times but she took this course she did not hold herself out to the public as a minister i beg to differ the record actually demonstrates that document between the school and the teacher how does that rise to the level of a public representation well though the church expected her to make a public representation now how well she did or did not do that is the very type of entanglement that i think on her own accord every year going back to two thousand and six she took her students to our lady of angels cathedral in downtown l a to tour the cathedral and also to allow the students to experience serving altar so that is which i took her students on a field trip to nasa does not make her an astronaut of course not there but there's no astronaut exception to the and that's and that's a good point council we're talking about an exception we're not talking about the rule and my concern is that we may be headed down a path where the exception swallows the rule to some extent if we're not careful understand judge of justice alito in kagan's concurrence to make it clear that in some religious organizations there's not the overt structure and hierarchy that there are in others and in those there may not be a person clearly  as a minister that's all well and good but that's not the case here this is a very structured religious organization with a very clear and distinct hierarchy and you're not telling us that a fifth grader a sixth grade elementary school teacher to catholic school is the same thing as a similary trained priest who's gone through a formal ordination and has a vocational lifetime minister are you of course they're not the same thing but they've both have minister at least not in the way the plaintiffs did in hosanna taber not in the same way as i was on the tape you agree with that i agree with that but that's also not a a for  for for being a minister or for even satisfying you know the actual phrasing was out of tapers her own use of the title what do you know overt acts did she undertake that would represent to the public she was a minister she directed and produced a performance by her students of the passion of the christ as part of the easter celebrations that in addition to taking her students very publicly every year to the  doesn't help you well a couple of you may have something to say about that we can overturn a precedent three judge panel is back a prior ruling of this circuit so telling us is wrong doesn't get you very far us why we should not be persuaded that bill controls the outcome of this case if i can just say one more thing about that there is a petition for a hearing on bach that is still pending in b l so that's a little different so that why i said a couple of you may have something to say about that at some point if we are and there's one other precedent that i think the court needs to look at its own precedent and that's the purity versus khalsa case and pur rather pointed out earlier is the participation in prayer is different beals testimony was that she didn't do it at all morsi bru was actually quite open about the fact that she she did accept the duties that she had in the contract and she understood them to be her duties she had to undergo religious training i'm going out of the substance reflected in the title acknowledged that she through these multiple courses that she took learned about the bible the history of the catholic church and another factor that is missing and below is that she obtained a catechist certification that the to demonstrate that she was knowledgeable in the catholic religion which is very important because the church the church is message is only going to continue to exist if it is taught to the are generally going to be subject to the ministerial exception because they are ministers of the faith that they are promulgating the faith to the next generation addict in a concurring opinion is not binding it's not binding but it's been found persuasive by multiple federal courts of appeals and the other thing about that opinion and i guess i am sort of going back and forth because i want to address judge wrong to this question and i don't want to leave that hanging here because she did specifically ask me to distinguish the cases so ms morsi bruce specifically agreed that the mission of the school where she taught religion is to develop and promote catholic school faith community within the philosophy of catholic education is within this own for writing commitment so that pervaded her employment even though we don't use a stopwatch to tell how often she taught religion although the record does show she taught it every day now through what do we do with  morse testimony that she was neither called her position nor does she believe she was except in a formal call to religious service and she didn't even consider herself a practicing catholic what do we do with that think first of all i think she was a practicing catholic while she was a teacher she might of rough the faith afterword site so i'm not sure that reflects what the record says but the case title were she may subjectively think i'm not a minister i'm not even a catholic but then she think people can't be ministers with out designated themselves as ministers so she can be designated a minister despite her not seeing herself as a minister because the primary determinant and this is what piri says is the job duties so if you have a job duties of a minister  that is your job then the fact that maybe in your heart of hearts you don't really believe in it or you don't even consider yourself a catholic isn't determinative if it is highly unusual for someone to be a minister without considering themselves to be a minister i would think so but that's still not the test there's no case which says that that's the test as there is a bit like how that person holds himself out so if the person does not hold themselves out to be a minister  expected it to conduct themselves and to teach the faith teach their children how to pray and do everything that the church expected of a teacher of religion i mean yes this council understanding and there are clearly various distinct levels of vocational ministers within the priesthood and the hierarchy of the church should we should we grant the same exception in the context where there's a vocational ministry that's well established and structured to the laity there's primarily engaged in teaching english and other secular subjects but may ancillary only teach religion or absolutely should and in fact to treat the religions differently on that basis is the type of entailment that the first amendment prohibits for example saying that as alito makes it very clear there are religious bodies out there that are highly different in their structure and their practice and that we have to take those realities into account in the totality of the circumstances analysis you do but that's when you're talking about those other religions that may not identify people ordained people or or what have you she was an ordained she didn't carry a title other than teacher she's not a part of the vocational professional clergy in the church here i understand but so your honor basically if i if i can sort of recap upshur it seems to me you're trying to equate the seminary trained or damned priest with the elementary school teacher and that's where i have a problem i'm not i'm not equating them i'm saying they have one thing in common that  more teachers for example you use the word ancillary well let's suppose you have a circumstance where someone only teaches religion five minutes a week well i don't think that's realistic i don't think anyone who's been in class actually has experienced a five minute lesson and at that point you might want to look into whether the religious entity is using this as a subterfuge to get around the employment  profits would it be prudent for us to remember this case for the district court to consider it in light of below well i think that would be one of the potential prudent options although we believe that even if beal does survive we believe that our facts are strong enough especially the plaintiff's own testimony about her job duties and how she performed her job duties and the important thing from the purity case that i never got to say purely says that an employee whose job duties reflect a role in conveying the church's message and carrying out its mission which is ms morsi route to a tee is a clearly to be covered by the exception it didn't say is going to be covered by the exception as long as one of the other elements is present and in fact in both the cannot take case which is cited in the briefs and that's the fifth circuit just very briefly i want to make one statement of what we're requesting here today we're requesting that especially in light of deal that this court reversed the district court's granting of summary judgment on the issue of the ministerial exception we would ask that the court remand  it back to the court for further proceedings and in light of especially in light of whether there are disputed issues of fact so that we can consider at summary judgment number two i just want to point out there is a lot of considerations raised in hosanna tabor in terms of totality of the circumstances to fit it all into you know the different categories in which he needs to for purposes of his argument the trip to our lady of angels cathedral to us is you know two things that simply walking around your students is no different than the below in terms in peel in which she took her kids to the to the particular you know weekly