good morning your hono it please the court my name is nicholas wagner i represent judy borg judy borg was a thirty year employee of yeah when she had cancer and she informed her employer following and within a short period of time she was told that her position was going to be eliminated she was told this in approximately early february of two thousand and eleven now this notice that on the docket the court save the simplest case for the end and this is a as far as disfiguring is concerned this issue before the court there is one piece of evidence before us that's relevant and that is the job elimination memo that miss my client was given in february on february second two thousand and eleven about the the prospect that her job was being eliminated now this is the only piece of evidence that needs to be reviewed in analyzing this one question issue before you was filed by my client that states as follows and remember this is a form complaint ready for the box complaints in it states that on or about february fourth two thousand and eleven she was laid off the night employment or denied accommodation now in our closing brief we addressed this issue significantly on pages eight initiate this administrative process for resolving employment discrimination complaints the procedural requirements for fear actions are quote neither interpreted to technically nor applied to mechanically the purpose of this administrative charge is to provide the basis for the d f t h to investigate the agreed to employees claim of discrimination it is not intended as a limiting device options yes that was issued the same vision for other complaints ok that doesn't change the law the technical aspect of this d f e a charge and the ninth circuit's opinions that these are not q planes were questioning whether your client knew that there had terminated her employment as of the memo in february she knew that there were that there was an adverse employment action taken against her on that date she also knew if you look at the job terminations memo that she had until april fifth eleventh where to find another position within the company and if she didn't find another position in that within the company and if she did not sign the waiver then her terminations date would be april eleventh two thousand and eleven now keep in mind the way we have to frame this or this is a motion for summary judgment so we have the  is not was the lower court right but it's a trial do novo it's an analysis to noble in other words what would you do look at this memo is there a reasonable inference that someone was she had been quote let go ok so the question is when is her terminations day and what and your honor just stated that it is a reasonable ball in terms of interpretation that someone looking at this memo can state you know the employment terminations date is april eleventh that's the issue when the kit in this case is what is the terminations date and is it reasonable for someone to infer that th thousand and eleven there's no denying that's what this memo states now the memo also states that your last day of service will be february sixth two thousand and eleven so it's contradictory it's a contradictory memo and as we know when the drafter of an ambiguous or contradictory writing that occurs then it then that the so that we know to whether your client suffered any harm as a result of the ambiguity in the memo she did not suffer harm in til she had damages and she did not have damages until april eleventh two thousand and eleven and she didn't suffer harmed the question of whether she interpreted the memo we haven't ever m b u with memo and she interpreted the way interest how do you argue she interpreted that she had until april to file a claim in light of fact she filed with the if you claim almost immediately she chose to do that to file it immediately but she did not have any damages nor did she lose her job and her terminations become effective until april eleventh you cannot read this any other way and even if you can as your honor has stated it is it is reasonable there's a reasonable inference that anybody looking at this memo could be confused and could see to two different terminations dates in here and it's explicitly stated that the effective date the effective date of this action is as follows your employment terminations date if you do not sign the waiver which she didn't will be april eleventh two thousand and eleven so the fact that she chose to file her d f e age complaint early to get the process says as of february sixth you no longer position with the company february sixth would be your client's last day of service that it says there's a pump possibility for severance pay it says that right but it also states that you have nine weeks to find a no other position here but because you know the current one is gone you've been fired that might be a reasonable interpretation of it a reasonable inference and i started my argument by saying there are two possibilities for a terminations date here february sixth two thousand and seven or a pull eleventh both are reasonable i don't see how anyone could look at this memo and say oh neat neither one is real or one of the other is not reasonable they are both reasonable inferences and because of the standard a motion for summary judgment you have to give the benefit of this to the nonmoving party especially when you're talking about a document that was so because of the standard we're talking about here that standard it's in review here you have to look at this memo and say is it reasonable for someone looking at this memo is it a reasonable inf that the terminations date is april eleventh two thousand and eleven it states so right in the memo and if you come to the conclusion that it's a reasonable inference you that is required before you file a lawsuit so that may be a matter of semantics but it's not the standard by which we are with the measure would have told us that she limitations while that was being considered she obtained the right to sue the very day she found her calling or write so she so she accrued a right to sue letter that doesn't change to terminations date zero or reasonable or as to whether or not there there is a later she's not been terminated that is an act of a third party an administrative agency the defendant here has stated the date of her terminations to be april eleventh two thousand now had a lawsuit been brought before that date it could have been dismissed because it was not yet ripe because she had until april eleventh before the terminations date would be affective your honour's i will choose to reserve three minutes for a rebuttal think thank you very much very good o'neill properly decided the motion for summary judgment using the appropriate standard for when the statute of limitations begins to run and based on the facts and evidence before honor it says in me third paragraph that your last day of service and in the fourth paragraph  an action is intended to be permanent employees who've lost their job as a result of these efforts this is about this board saying that she's lost her job that your last day of service will be february sixth that your job is a limited and your are importantly in the d f t a chill out or it's clear that she understood that because she's under penalty of perjury said that she had been laid off that she'd been denied employment on or about february fourth we'll go back to the memo from an a what is employment terminations date printed if we were not received in printed april eleventh two thousand and eleven mean well your honor i think it's it's a label that doesn't contradict when she performed her last day of service and when she knew that her job had been eliminated she's going to be getting additional severance because of the generous benefits that it provides to employees that have been laid off she's going to be can continue on the payroll system for nine weeks and the employment terminated terminations date is and is a payroll terminations when she's no longer going to get paid from the company he doesn't see payroll and courts have held that a payroll continuation tate does not extend the statue of limitations after somebody has performed their last day of service and knows and understands that they've been terminated it's in the record here are and i wouldn't wouldn't know but as far as when the statute of limitation runs when the cause of action cruisin here well i don't recognizes that there's authority in the ninth circuit  statute of limitations in a wrongful discharge claim begins to run on the notice of to start his board and the court all use the appropriate standard of guided  rimando it says that the actual terminations means the time when the employer exercises its power of dismissal now there's an additional case law on a wrongful discharge cla addressing what actually terminated means but we can look to the eastern district of california in johnston v aerojet analyzing a d a claim and they say it's the date that the employee last perform service and the the employee knows that they've been terminated notwithstanding continued receipt of benefits and the johnston case i would commend it to your honor's because it cites from other circuits across across the country action a cruise from the third circuit that caused the actual cruise on the last state of service not to date the pay that benefits and pay and and here at no provided clear evidence we maintain that the elimination letter is clear that her last day of service would be february sixth two thousand and eleven her own sworn statement that on or before february fourth two thousand and eleven she had been laid off and denied employment exercised the power of dismissal on february sixth two thousand and eleven under ramana under johnson v aero jet it's clear that we've established a plane its last day of service was february sixth two thousand and eleven but she no longer had a job as february establish a genuine issue issue material fact or start to stablish a genuine issue of material fact at a minimum had to offer a sufficient explanation for the contradiction between her admitted lay fifteenth less than a month after she'd been about a month after she'd been terminated she knew that she had been laid off and lost her job and that your your your point is not the law knew and what she knew was that she was laid off she swore under oath and she did not provide it sufficient explanation she provided a two paragraph declaration paragraph one in her declaration said if called to testify do so truthfully paragraph t says attached here two is the job elimination letter there's no paragraph three that says here's what i understood when i received the job elimination letter there's no paragraph for that says when i filed the d f e h claim here's she she would need to offer some sort of sufficient explanation and this is very similar to a sham declaration type case and your honor judge smith said just three years ago in slow you ski people in federal credit union that was you're faced with a sham declaration where the plaintiff had caught completely contradicted contradicted his prior testimony and there you noted that in the summary judgment k case that the diff the plaintiff was required to offer a sufficient explanation here we have no explanation whatsoever in your honour's i'd submit to you that given what was before judge o say the court stated discourse stated that these complaints must be construed with the but most liberal ality mindful of the fact that these charges are made by a lay persons unschooled in the technicalities  formal pleadings when you go to the d f e h complaint this statement is that i would say that on or about february fourth two thousand and eleven the following conduct occurred that is ambiguous on its face and it's an approximate date and approximate date that on or about this date these actions occurred that was the start of the action now is not what it is that what  people i don't know but these cases but but it but the under the ninth circuit's only rules these defeats complaints are to be construed liberally and not as a way to knock the plaintiff's case someone outside to stop are coming and i don't know that it's not it's not in the record but they made it clear that their job was being eliminated and she had the opportunity before her terminations date of april eleventh to find another anyone reasonable person would be reading that memo that church terminations would be affective on the date the memo said it would be affected if she did not find another position in the company and if she didn't sign the waiver that's important because words matter or the words matter certainly in this case and that memo when the memo says the effective date your terminations will be april eleventh if you do not find another job within this company and if you do not sign the waiver