ok let's see it so mr look cool it looks like you will have eight minutes to begin and you've reserved two minutes for rebuttal is that right that's correct ok so why don't we kick it off there with mr look cool go ahead good morning your honour's my name is value look cool i represent the plaintiff appellant mr know the district court here erred in both compelling arbitration and then denying sr knows motion to vacate that arbitration a war with respect to the st issue the threshold issue of compelling arbitration new york law is clear that an agreement to arbitrate must be clear explicit and unequivocal if it requires implication or subtlety there is no agreement to arbitrate and in your court of appeals is equally clear that a handbook with that a disclaimer a no contract disclaimer within a handbook is dispositive holding that there is no contractual intent in this particular case there was a handbook that repeatedly say it is not a contract it represents guidelines and creation of a contract that disclaimer cannot be overcome by implication or implied in fact contract in fact the text of the operative documents makes that clear mr no s acknowledgment form in connection with the handbook that acknowledgment form which is on page one hundred and fourteen states this handbook is not a contract of employment express or imply that means that you cannot have a contract by looking to the layout of the document to see if there are sections that are distinct by looking to the mandatory nature of its language or by conduct more importantly perhaps the disclaimer of no express sign pages that say it's a contract i'm looking at page sixty one of the joint appendix which appears to be  a document an electronic signature through adobe with two acknowledgements one understanding and acknowledging the handbook and i understand your argument that the handbook can't be a contract  it independently says i agreed to the terms of the arbitration agreement so we have a very different situation here the arbitration agreement was a standalone document and he agreed to it effected his cross referenced in the handbook doesn't seem to be something that could make it less binding well it's not just that it's cross reference iran or it's literally signing pages of the document of the arbitration agreement the only place the arbitration agreement lives is on pages twenty eight dollars to thirty says this is neither expressed nor implied contract but perhaps more importantly your honor this situation is undoubtedly messy we have interlocking documents two of which are signed that appear to point in different directions a handbook that says it's not a contract a a signature that says i agree to the arbitration agreement and a separate acknowledgement that says this is not a contract in that suit i'm sorry  two thousand i hear in the states that he agrees to resolve any claim arising from its employment by arbitration why isn't that also reflective of not because of the subsequent disclaimers in the handbook because the only place that the terms of arbitration are set forth is in the terms of the handbook so pages twenty eight to thirty two  are the sort of the logistics of arbitration so to speak and so you need to combine those two so again you have something that indicates that it could be a contract and something that indicates that it is within the in that within the handbook itself is still a separate set the internet is not it is not your honor because it is because what he is signing are literally pages of the handbook it would be equivalent let's say there was a progressive discipline policy in the handbook if you nischelle those pages would that mean that that's a contract i think new york law would say that it is not a contract and again agreed we have different permutations here but the clarity with which oppenheimer must prove that it's a contract requires there to be no implication we would have to read out the disclaimer that says that the handbook is neither an express nor implied contract it order to convert these pages into a contract in other words as i understand oppenheimer's position this is an expressed contract because pages twenty eight to thirty two are signed with a disclaimer says you cannot have an express contract so we have two things going on at the same time a document that purports to be a contract and not a contract at the same time and under well settled new york law that means we defer to the no contract rule and so i will appellate argument fails for two reasons st the argument ignores the fact that the appellant who holds a law degree and a certification in european arbitration as the court has noted agreed three times in writing to arbitrate his disputes with oppenheimer he did so within his offer letter he did so within a separate document titled arbitration agreement that he signed the day he started working for oppenheimer and he did so a rd time in november of two thousand fourteen when you electronically affirmed st having received two thousand and fourteen handbook and then as judgment even pointed out separately affirming yes i agree to the terms of the arbitration agreement and those three agreements are separate they're distinct and by their terms are entirely mandatory and the appellant here has been unable to cling to a single authority in this circuit were court has refused to enforce a separate distinct to torrey arbitration agreement simply because in a company employee handbook provides that that particular policy does not create a contract of employment and as to just record noted the law school case and other authority cited sue by view of how and is fundamentally different because there was no separate distinct agreement to arbitrate and it's also important to note your honour's that both versions of the employee handbook that mr know points to provide very clearly that the terms of the handbook do not affect any separate written agreements between the employee and oppenheimer and that if there were any conflicts between a separate agreement and the handbook that the terms of the written agreement would apply now finally on this issue your honor even if this case were in line with the authority cited to by mr know where you were dealing with a separate distinct arbitration agreement but rather a majority tracing clause that was buried within the terms of an employee handbook his argument still fails and that's because just records in the circuit have held that even under those circumstances where you have an employee in a book with limiting language if there's an arbitration clause that makes clause and in fact further down says in consideration of my employment or continued employment i agree to arbitrate there is no such limiting language in any of those agreements as such a believe the district court got it right that the court was proper and compelling arbitration and was the panel has any questions for me i will move on to the order denying motion to vacate and to that end it's well settled that a party must meet a very h and i also respectfully submit that it's not enough for the court to disagree with the holding of the arbitrator rather as this court held in teco medals the award must be enforced quote if there is a barely colorable justification for the outcome reached and here you honor is not only to the arbitrator a retired united states magistrate judge have a colorable justification for his finding which dismissed mr those claims he had a robust factual record supporting his findings and as the district court held mr nose motion to vacate the word is in fact impermissible challenge to those factual findings and most importantly the factual finding that mr know had his supervisory responsibilities removed on july th two thousand fourteen which was before he ever went on an f m illegally of absence and was before he ever indicated that he wished to take in f m l a leave of absence the evidence reflected that oppenheimer on multiple occasions made  mr no aware of what his rights were in so far as taking up to twelve weeks of unpaid f m elihu for the birth of his child and there was evidence including the testimony of mr newell supervisor in two of his coworkers which was credited by the arbitrator in his award that mr no elected not taken f n l a leave for the birth of his child and instead desire to work for mostly him to continue to get paid which he in fact did and so can i just as you to clarify  you've said a number of times that he didn't answer to go on f emily leave is it your position that he asked to go on some other form of leave or is it you're saying that he just was working remotely and wasn't going  lately are you suggesting that he asked to go in a different form of leave no he got all the drama ok so when you keep saying f m l a leave i keep wondering whether you're trying to make a distinction between yes he wanted to go on a leave but it wasn't technically of the kind of leave that falls under the f and i lay and again i thought your argument was he didn't ask to go and leave it all he just asked to work from san francisco that's exactly right thousand in fact mr know was making the same one hundred and fifty thousand dollars base salary when he was terminated by oppenheimer year and a half later in june of two thousand and sixteen that he was making the date that he went to california in june of two thousand and fourteen for the birth of his child the only reduction in compensation that mr no incurred was reduction into discretionary production based bonuses and you will discretionary production base bonuses which the arbitrator relied on well settled law that an employer is entitle to take into account time out of the office including time out on a family leave when awarding discretionary production based onus and then finally the award there is a factual basis for the for the findings that that a year and a half after his f m r lately if mr no was terminated by oppenheimer and he was terminated at a time when oppenheimer had just suffer two of its worst financial years in recent history including the financial crisis and more portly there was evidence that oppenheimer had ceased to do in business or together in the industries that mr know was a research analyst for in fact  never hired any research analyst to replace coverage for those sectors and for those reasons i respectfully submit that the opponent is not come close to establishing that this award qualifies as one of the exceedingly where rare circumstances where an award should be vacated on the grounds of manifest disregard for the law thank you very much thank you mr le cool yes your honor your two minutes for rebuttal yes thank you we are not challenging the arbitrator's findings of fact even though we may disagree with and we have challenging the standard used by the arbitrator to determine when f m l a protections kick in the arbitrator repeatedly looked for mr doe to either request or be placed on leave before the before he found that she the f emily protections kick in in fact this court has made clear that the protections of the f m l a kick in when the employer has reason to know that the f m elaine may a plot and in this case that july th e mail has all of the necessary elements to let mr lowenthal know that the f m elaine may imply mr know stated that he had just that his daughter had been was two weeks ult that she had a health condition that prevented her from traveling and that he would quote be back in the office by august t just to think that the f m l a may apply here and it is undeniable that mr lowe and all then demoted mr know because of the actual life thirteen e mail in fact only a few days later he sent mr no f m l a papers and it minutes that the reason for stripping mr know of his responsibilities which the arbitrator found was in fact an adverse period but by that point he is demoted isn't consistent because once he sends a july th email the adverse action is stripping him of his supervisory responsibilities that completes the violation because it's at that point that the employer took an adverse action because of a situation in which the f m l a may apply that's not what i'm to am asking and asking that question the fact that he continued working at not arguing that i apologize what i'm arguing is that mr lowenthal was prohibited from taking an adverse action in response to the july th e mail it matters not to mr no continued working what matters is that he gave mr lowenthal sufficient information to let mr low and all know that leave may apply and response to that notification mr low and all took an adverse action which is a d advisement thank you