winter holiday season as part of his employment contracts for each of those periods he agreed to an arbitration clause which required him to arbitrate workplace disputes arising out of  relating to his employment or cessation after his employment ended each of those years many months later he applied for other positions with macy's and he was denied those positions his complaint below alleges failure to hire claims for discrimination in retaliation he brings those claims under title seven and section  after he filed his complaint macy's move to dismiss and to compel arbitration arguing that his failure to hire claims were covered under the arbitration clauses of his two prior employment contracts the court accepted that and granted the motion to dismiss we believe that ruling was in error for several reasons st the scope of the arbitration clauses does not include his claim this is a simple matter of interpretation the plain language of the arbitration clauses states that they apply to claims arising out of or relating to employment or system of employment employment the general definition is the act of being employed or the i'm sorry this the status of being employed or the act of employing somebody his claims that macy's sought and was denied full time employment would that claim fall within the arbitration contract well i think the st point is he wasn't employed then so that that was  not an issue the court needs to reach but i don't i have not thought about that i think there would be an argument that they were not because the purpose of an argument the purpose of an arbitration clause is to implement the contract and so it's the purpose of implementing that contract not to transcend it and make the arbitration clause become the be all end all contract and so that's why and litton even though the court th e court is clear the supreme court and says that generally when a contract terminates it terminates nothing survives it but it recognizes an exception which is a well not an exception a presumption a narrow presumption that arbitration clauses will survive post expiration but only for disputes that arise out of the contract and so in the hypothetical that you proposed judge grant  that claim would not arise out of that particular contract and so i think it would not be covered well macy's says that his his claim this retaliation claim is based in part on statements that were made by other employees during his st employment period based on information that was revealed to macy's during his employment what do you have to say about  the that's merely that's not a relevant the fact that macy's learned it during his employment is not a relevant fact that's just a fortuitous fact if he had not been employed in macy's had learned those facts  didn't arise under those contracts no so his claim for retaliation is that macy's failed to hire him and that macy's decision not to hire him was based on the fact that he had sued bel l and that he had filed an e o c complaint that decision was made when he applied for employment and then was denied that decision was not made back when those employees said something to him the decision it employment with the answer be different if if there was evidence that the person that he told about that you see complaints had emailed the hiring manager at that time and said hey this guy is trouble make sure never to hire him for seasonal an employment again would with that change i think that oddity we have here is that the worse the alleged behavior of bases the more likely that your client gets put into his less favored forum which is a pretty perverse result if i guess the question is if the decision is made at the time of his at the time of the season employment if the decision is made to never employ him again after the expiration of that seasonal employment does that mean that there's a connection a sufficient connection to the earlier contract so if i if i understand correctly you're made i think my point is similar to before that there's no evidence that that's what's happened here and then nd that no still the decision not to hire him at that point he hasn't applied for the position he did not apply for the positions until september two thousand and sixteen and may th teen and so the decisions not to hire him for those two positions were not made until after he applied for those i agree i agree in this case there's no evidence of what i'm suggesting but in a sense we have to set out a rule that's going to apply in a range of cases if an entirely different person right not your client if someone is working at a seasonal job and for a retaliatory retaliatory reason the employer decides at that moment while the person is still employed in the seasonal role we are never going to hire this person for a future seasonal role is is that it a dispute that would be arbitrary will honor the contract that's in place while the employer while the employee is employed or is that outside the bounds outside the bounds because at that point there is no dispute because the individual has an implied and i don't think we want to impose liability on a company for instance for making a bad decision that they never execute down the road the person may apply in the company maybe has better counsel at that point and says this is not a good reason we must hire them so i think you have bad intent during the employment there but no dispute has arisen yet because the individual has not yet applied for employment and again i don't think we would want to impose supervisors at macy's including the score manager robert robin go ins when the human resource manager tony jones and a sales manager simply davis bennett as having conversations and the the failure to so his claim is failure to hire and it's whether that when did that retaliation occur when did it so macy's concedes that his claims for discriminatory failure to hire fall outside the arbitration clause and so the failure to hire occurred at the same time whether it was discriminatory retaliatory or both it occurred at the time he wasn't hired and so if one falls outside both should fall outside but to go further to your point your honor the the fact that those state what matters is those statements evidence knowledge it doesn't matter that he was employed at the time he could have been a non employee when those statements were made and they would still be evidence so his claim is not as litton would say a direct forseeable result of the employment contract there must be a direct relationship between the contract and the performance of duties and so his claim that you retaliated against me failing to hire me does not involve the performance of duties under and then our last point so our st point was it's not within the scope the nd point which we've discussed here was that the that it does not fall within layton's narrow presumption and then the last point is that it was terminated his contracts terminated when his employment ended and the little presumption does not apply if it is expressly or by clear implication negated and the documents state that after sixty days a party is not covered so it says a party remains covered if at the end of their employment they are reemployed within sixty days but if more than sixty days passes the party has t again agree to arbitrate and we see that in mr harrison's case because he was presented with another arbitration agreement to sign common sense dictates that would not have been at all necessary had he been c it please the court let's see for of the apple e macy's before i get to the retaliatory failure to hire claims is really important to address the fact that a pellets framing of this issue before the court is inaccurate in his supplemental reply brief appellee claims that the only remaining issues before this court are to decide whether or not the retaliatory failure to hire claims fall outside the scope of the arbitration that is not correct in the complaint the appellate makes to allegations of failure to promote that occurred while he was employed by macy's during both stints of his employment if you look at paragraphs eight through t n of the complaint he alleges that while he was employed by macy's in january of two thousand and sixteen macy's bail to promote him from a seasonal position that he was currently working to a permanent position due to race discrimination and gender discrimination all of that occurred while he was still employed by macy's he's alleging that he was they failed to promote him from a c's no to a permanent position they fall squarely within the scope of the arbitration agreement as he was still an employee at the time and he was alleging that he wasn't still live for arbitration as well as your arguing that the retaliation claims are still alive which ration the macy's has now conceded apparently after taking a pro se plaintive through an entire to search for litigation process that his claims of failure to hire for race failure to hire for gender fire to hire for a failure to hire for national origin that all of the now after all ok fine the her and those are in federal court as opposed to arbitration that we've been fighting on for so long and let me just briefly interject once we received notice from this court that there was supplemental briefing argument macy's reached out to the pro se plaintiff through his attorney in agreed with him that our lease acknowledge that we know now that the that there are some claims contracts are an issue of leave and contrary to the brief of the belief of the district court that do fall outside of agreement we also think that there are some claims this deal fall inside of the arbitration agreement but so that we can have a fish unsee and to avoid further litigation we will agree to put all claims both even though we agree to some fall outside of the arbitration agreement court it was not until after that that we agreed that there was some claims they fell outside of the arbitration agreement but the dish a court agreed with us initially that i mean that's why the ruling was in our favor that all the claims fell outside the arbitration agreement so it was not just bases but it was actually the dish record claim that you sorry falls within the art that retaliation as well as the failure to promote so while he was still employed by macy's if you look at paragraphs eighteen and then again in twenty eight soon at twenty nine while he was still employed by macy's during  alleged that macy's bailed to promote him and those claims deal fall within the arbitration agreement should be compelled to arbitration and have them aces will have a similar realisation for any comparable plaintiffs in other cases well i mean again your hon  that was the initial relief he was requesting he didn't want to litigate all the claims in district court he wanted to fight as we did we agreed to consent to have all the claims even though it is blatantly obvious that some of these fall within the scope of the arbitration agreement we agree to litigate all the claims in distr  sympathize with macy's and with the district court the compliant like many pro se compliance is kind of all over the place on before you started talking minor standing from the briefs was that the only cases that mr harrison is still pursuing were the cases dealing with the failure to rehire him  not failure to promote him or extend his employment while he was there and i agree with you that any claim that they failed to give him a permanent job while he was working there is probably within this arbitration agreement but i thought that claim was by the board and that there really wasn't such a klein that the only actual claim being pursued so i guess my question is do you want to declare victory on any claim the plaintiff that he's dropping these facepalm all claims i know she hasn't that basically hasn't been addressed either way so for purposes of this we are assuming that those claims still exist and if they do then they would be compelled to arbitration all right and then my other question i was go ask you i know you tried to give up on on this and take everything to court makes sense at some point it just gets expensive to keep fighting for reasons i don't understand we were still fighting anyway so despite your effort to to give up you did mark so where are you now i mean look if we agree with you that some of these claims are arbitrary then you go back and you've got i'm also pinning in the district court you've got an arbitration write a two sentence opinion and we're done i mean that was the that was the initial you know thought process when we went back to the plaintiff that we were going to waive our right to arbitrate the claims that is that what you present would you still want him and if if if if fact that the plaintiff engaged to protect that activity and so the fact that macy's allegedly failed to hire him as a result the protected activity for both failure to hire claims occurred solely while mr harrison was still employed by understand my understanding of what is meant and recover a promise my understanding of what you've said is we waive the arbitration agreement we want to go back to the district court but if for some reason the court does not accept the way for you disagree with the point of about the law and you think if we're going to decide the arbitration issue we ought to decide that the retaliation  discussions with plaintiff to try to again try to waive arbitration even though we disagreed with the with the law to try to waive arbitration plaintiff would never agree to waive arbitration which is why we had to brief the legal issues and is why we're here today do you have the you understand my concern that your client was very willing to engage in these legal issues with the plaintiff he didn't have counsel but perhaps once the client saw risk on appeal and decided that it was no parent to us that some of his claims fail outside of the scope of the arbitration agreement we only wanted to litigate in one form that was i thought process that wasn't to to try to out game a pro se plaintiff as we stated when we initially found out the most to compel arbitration in the district court we assumed as the dish record again to judge take this point due to the confusing nature of the pleading that all of the claims fail within arbitration and again the district court agreed with us but after further consideration and realized that those claims some claims did fall and on our st let me say this was gamesmanship it was gamesmanship throughout the settlement negotiations were between myself and an attorney who has since withdrawn and the offer was the st that or i ever heard that they believed that some claims did not fall within the scope of the arbitration agreement was when we received the opposition that was never stated before what was stated was we want to keep the ruling that says that's in our favor in the district court and will waive our rights and so that left him in an untenable position where macy's was saying we want to have our cake and eat it too i don't get that macy's was s you what you want i don't understand why you didn't declare victory what you wanted was a case in the district court you didn't want to arbitrate they said ok we'll give up on arbitration i mean i basically haven't been asked for an advisory opinion everybody wants to take this case to a district court nobody wants to arbitrate but what it sounds like mr harrison wants is an advisory opinion he wants to hang a notch in the in the belt that he bases macy's in the court of appeals there are some procedural complications which i attempted to discuss with opposing counsel about how practically this would work there was his case was dismissed so it was not procedurally a simple as saying you know oh you can just proceed now his case is gone ok so and so we put out what's wrong with this now what's wrong with an opinion from this court and about two sentences that says macy's has waived the right to arbitrate we vacate district court order and remand to the district court for further proceedings we do not object to that if the underlying decision is vacated we have no objection we attempted to work this out with macy's we explained the procedural problems and instead they went and filed six motions various motions and that so we did attempt to work this out we would not have any opposition to vacation of the lower court order  and vacation was important to us because macy's indicated that it would continue to push its arbitration agreement while it might waive it right here it was not ever going to concede until we saw this appellate brief that these claims were not covered by the arbitration agreement and that he was bound indefinitely into the future for any claim that might have anything to do with employment even if it was applied for like six years in the future he applies for a job but there did seem to be some confusion about whether there was a claim that mr harrison suffered an adverse action during his employment by the failure to extend his seasonal employment to permanent is that is that factual background in the complaint or is that a standalone basis for a klein the word promote does not appear anywhere in the complaint he never alleged that he was failed to be promoted he's very clear that he is suing for failure to hire him in october two thousand and sixteen and may two thousand and seventeen he refers to his ego complaints for background on that and they themselves are specific about those two failures to hire and if there were any debate footnote two of our reply states that he did not assert those claims so i'm not sure why that was discussed that was my understanding coming in thank you thank you