i'd like to talk about each of the four baker factors and as i do that it's important to keep in mind that no one factors controlling all the factors have to be considered in there too with respect to common ownership of financial control the sole owner of hugo one of prices in through hugo he manages hones in operates as various other enterprises including opportunity education mr ricketts also the sole source of funding for opportunity education you funds it by contributing five million dollars a year to it and he does that monthly through hugo he doesn't do that directly hum how do you you know i hate you know i think we're familiar with the facts but there's there's some argument here and i think that smith camp raises this you've got somebody that's got a business that wants to have a foundation to do for philanthropic matters and so that it saves money for the for the philanthropic matters he uses business people and assets and building and so forth the use of so is it if you want to lump them all together why is it maybe bad public policy to do that  philanthropic and we're just just you know we need to save money well i think there are two points in response to that challenge and one is if an employer wants to take advantage of acting like a larger employer to save money i think they ought to be expected to comply with the anti discrimination laws you know they didn't have to choose to but they chose to do it to save money they ought to be willing to pay for that in terms of compliance the other issue is you know this isn't a mom and pop shop here we're talking about an organization with more financial power than a lot of large corporations so it's not a case of as a matter of public policy where small charities are going to be effective each case has to be looked back to the common management prong and i think it's important to know that alfred levitt was president general counsel of hugo he also had a personal one i'm in agreement with mr ricketts whereby he expressed what you read to give business and legal counted which he counted to one lady who tried to reach the for the application the act fifteen people i don't believe you was judge and there is no dispute with hugo combined with opportunity education where about fift but its borrowing at no cost to itself eight other people from he'll go in other words look at it that way and say ok well these people are doing their h r they're doing their bill aims or they're running the company like mr employees as a maximum we don't dispute that so the issue is whether or not hugo should be combined you get about fifty leak even if you add these people do they get to fifty if you combine hugo  opportunity education well you get all of the organization but the people from those you had mr ricketson mr levitt and three or four others that are mentioned in the briefing but if you add all the people that were mentioned you don't get to fifteen do you think it would be close it may fall just short ok but that still wouldn't get you over the hump to make title seven applicable is that right well if if that is the head count five or isn't this a five hundred one c three can't foundation i believe so so that the money that's given is tax deductible and so forth that isn't this a subsidiary corporation of a sister corporation it's a separate foundation that's right and so you're trying to lump this separate foundation with hugo which is isn't a corporation limited liability corporation is that correct in the whole that right that's right that's right and the cases i've seen in the eighth circuit and elsewhere don't count the number of employees of the parent company for example it's just the total aggregation of the two employers and i true employer here or no opportunity of education is the direct employer hugo is the aggregated it was the true employer in your mind so we have to look at all of their operation integrated enterprise combine that with and again we cemented on the facts here the undisputed facts there are enough at least to get this case to a jury in the memorandum in by the district court as set forth in the mid in the memorandum in order or are you sure argument what the court made of the facts well it's what the court made of the facts and i think the facts the court did didn't discuss many of those facts right is that what you're saying is that the district court while making the correct findings then didn't use them little use enough of them well that's one of our contentions like we believe under the facts the district court did find there should be at a minimum a disputed issue of fact if not a finding of you know a great enterprise as a matter of law i mean there's common ownership there's common financial control in relation of operations centralized h r and as we discussed in the brief you go each other mr levitt mr simmons were directly involved in the plaintiff's employment i mean all those factors i wanted to go over that a couple minutes left with respect to the centralized control of labor relations again it's important to note the chronology here and the fact that hugo personnel really involved after plaintiffs complain when the mr turnbull called miss davis to terminated her during the same all the announced the results of the investigation so hugo was involved in all these activities and the reason they were hugo was was because mr levitt mr simmons would work to mr ric again our position on the integrated enterprise issue is that if a company wants to take advantage of voice of an affiliated enterprise and act like a large employer we ought to be held responsible defense which i think is what defendants are raising here the question is not whether the defendant is the c e o the question is whether his conduct was unjustified under the circumstances and i think we've alleged to have alleged a misrepresentation wrongful front office door opportunity education received financial support all the various services we talked about opportunity education to focus on the educational mission because you know enterprises did all the so called back office wor up later after the squid they have is that correct the photo may have been dated after the advance and if you drive by the office you may see that the locals are not there any more but the point is counted not just the individuals but he points to mr levitt and mr simmons even with those two you don't get to fifteen they include everyone in hugo including people such as the housekeeper a horseman a chef caretaker do you  disagree with that approach that they should only count the people of you that were dissipating or what i think that is the right approach if those people actually touch any foundation in this trade of matter those would be the people account not everyone else just shut up or do you ask about the logo it's discussed at page twenty nine of the red brief the logo did not appear on the door the hugo name did not appear alongside the foundation  eleven there is no record evidence of the logo appearing before them if i can go back now i think it's important begin with the inarguable and i think your dryly you touched upon it the plaintiffs are trade a combined for liability and discrimination purposes two completely different entities my goodness you have a cheery that provides educational curriculum materials resources to teachers and students and schools in other developed countries and you have huge job because of normal for profit business operating in the united states the dichotomy between these two entities and the difference is in their character purpose and operations could not be more stark the legal structure of the separate precedent no quote extraordinary circumstances to override that dichotomy and merge them into one yes and have joint employer is a bit integrated enterprise is about domination where one entity the breaks the demarcation between the two so it's justified to treat them as one who can't separate the two he can't figure out who's who but in the case here a couple points actually four points one hugo does not make decide to manage to control the foundation's operations the foundation does not decide manager control hugo's business operations to the foundation has its own employees and contractors in fact to the three plaintiffs were contractors with personal contracts with the foundation they didn't perform hugo work the foundation had its own chief operating officer its own executive director employees and contractors they did foundation work employment the foundation decided compensation decided benefits decided who to hire who to fire who to discipline where to schedule who it was but those decisions were made in part by people who were managing mr ricketts wasn't involved in those kinds of decisions mr ricketts was involved but he was the head executive of the foundation and eleven or no love it was not involved in those decisions only the foundation the foundation only made those decisions mr ricketts was the head of the and asian he was the chief executive officer of course he's a decision maker but he also happens to wear another hack at hugo does not matter  fourth point i wanted to make contamination was the foundation's operational performance has no impact on hugo hugo's operational performance has no impact on the dish the essence of joint employer integrated enterprise involv of benefits between the two entities that there are so linked there are so joined together that there's a domination to get can't extract one from the other that's not the case here these are things you may be that's pretty important well it was signs the checks and who controls the checks couldn't agree more but who decided what's on the checks who decides how much money somebody gets that was clear only foundation decision  foundation decision but here's let me tell you my problem with good judgement against opinion is he finds all these facts in the in the background section and then when she goes to do or analysis she does very minimal infrastructure in other words hugo handled them for structure for all we have you know the on that alone isn't you know why isn't that enough and you know i could go analysis of the facts after she found them yes based on those material facts the chief found which are undisputed i think they clearly support the district court's analysis and ultimate conclusion i don't think the court found this to be a very good district court found to be a very hard case based on those undisputed facts the going to your point about the administrative support this court in baker said that's not really that important it ministry to support services does not make one employer that's just any third party vendor providing not essential services on unrelated matters to the core operations or the crux operations of the n t well this gets back and maybe you can tell me what  cases say to my original question is do we have to find that the hugo employees are all we have employees or do we merely have to say these are two businesses that were so overlap that that they were integrated sufficiently that we count what we consider all the employee i don't think the court should consider all the employees i think you need to look at the people who may have touched the foundation with respect to administrative support matters and that's all they did and you don't get to fifteen even with that analysis but again that the plane of spirit was long everybody if you go with everybody the foundation that doesn't make any sense are there cases that saying what i yes which is why you only count the ones to touch it it seems that they're saying if they're in agreement you can i'm all i think that's fair your honor but i don't think in any of those issues excuse me in any of those cases the demarcation even between the other entity like hugo was ever argued here you're talking about symonds and level and what's critical i think is they had personal agreements with mr rick so their roles they had different functions therefore it in this case because of that feature those two individuals that's all i'm hearing in terms of demonstrating integrated enterprise there yet they actually work for m they may be assigned and also have roles of hugo but they're doing various things you have to identify what things they were doing for which entities so i think it's totally appropriate in this case because of the factual record cou only simmons and love it and you don't get to fifteen but our case doesn't turn on that our whole case turns on you can't count hugo at all if you want to try to measure everybody great but it doesn't matter under the factual record in this case this case is cases from the court the case the factual records in those cases are so different than this case that they actually support the district court's findings and both baker and standard had two business businesses that were in for profit their work was related all right then and call the financial performance of one flow directly to the financial performance of the other there was common ownership common to come executives so in those cases the benefits terms and conditions of employment if i can go with the four factors real quick just so i can summarize our position in relation of operations no the administrative support stuff doesn't change anything common management primarily mr ricketts basically so what he's entitle to run multiple organizations doesn't mean when he says functioning in one capacity he's always bringing in his other capacities three centralized control of labor relations no on all policies all pay decisions all benefit decisions all disciplinary actions were decided by the foundation for common ownership or for handle control none the foundation actually all those reasons a district court got it right i think it's a bad message to send a corporate service through the form of administrative contributions so to say is somehow going to result in legal liability in my remembering the term i want to get to the tortious interference claim this case is not about whether something was justified or unjustified under the depressed a supreme court's decision and harm to elements one interference by the other part third party to the employment relationship with a contract relationship second and you only get to the second if you meet first but the interference was unjustified and i never first element the huff court agreed with various other courts which had held to bring an unlawful interference claim against a coach employee the play if my show that the alleged interfere acted outside the scope of the of employment authority or that the interferer was pursuing some individual or private purpose nothing in the complaint even suggests that mr ricketts was acting outside the scope of his employment authority and nothing to suggest that he was acting for some private personal interest his actions were entirely for and on behalf of the foundation alleging that an employee acted with an unlawful motive but with in the scope of that it individuals authority to act is not third party interference the plaintiff has a claim potential claims against the enemy because the agent that the interferes acting for the editing go after the entity it don't go after the individual and it hup they talked about a couple of policy reasons work which are interfere pieces would conflict with nebraska's laws prescribing no personal liability for discrimination or retaliation and i'm not saying arguing preemption or anything like that i'm arguing a matter of how far do you take   or managers it hup the court realize that's a real problem and therefore we have to impose some boundaries on the tort when it's involving actions by a co employee and that's what puffs about third party with respect to the issue whether hugo individual employees ought to be counted defendant didn't make that argument alone the district court in address it as far as we know there are no cases counting heads at the affiliated entity the two entities are combined if the baker factors are mad and that should be the case here because even if you start counting heads for example mr levitt mr simmons school and others all those people are supported by other employees  are not out there operating independently they're able to do what they do because they work for hugo so you've got to consider all the employees not counting heads again for apple is to suggest th hugo an opportunity education totally unrelated just misses the mark hugo exists to support all the other enterprises mr ricketts headed that opportunity education has no administrative infrastructure these other entities don't either that's what he goes there for but with respect to outside the scope of the thory on the tort claim shouldn't be disputed that if a chief executive violates the company's c e o policies which  will do a legitimate good faith investigation of your complaints and they'll be no rising also if instead the chief executive has a secret plan to get rid of the plaintiff or complaining carries out that plan retaliates that's outside the scope of employment that