car my name is terry white and i represent kristen jones in her appeal of the district court district court's decision granting douglas county smoke to dismiss her failure to hire claim and that is the only issue we are appealing the dismissal of the failure to hire the district court granted the twelve b six motion despite the fact that all of the elements of a prime of  are alleged in the complaint according to and in the appendix at page ten paragraphs thirty five and thirty six those elements are all stated the elements are met and the only elements that are at issue are the fact that mrs jones is female that's not a disputed issue nothing controversial about that here the second element she was qualified for the position in fact she had been a douglas county deputy sheriff in the past she was terminated and the circumstances around that terminations are not on appeal she applied for a specific position in the district court had questions about whether in fact she did apply in fact i sent a letter to douglas county sheriff's office and requested that she be reinstated to a position that had been opened was through my letter to her anything beyond just your letter requesting reinstatement no your honor and in fact nothing more was required no formal application process is necessary particular in a reinstatement situation and that is you can look at the case of hotchkiss versus c s k the eastern district of washington in two thousand and thirteen case where they are the employee contact is former supervisors and also human resources and they said that was sufficient they knew he was reapply and in fact that's what happened here douglas county sheriff's office knew she was reapplying because within a week of getting my letter they sent a letter back saying nope we are not going to hire mr jones thank you very much so it was treated as an application but what about the fact that in the actual charge of discrimination and also in the in the  and the district court it's always called a reinstatement do you know what i'm referring to when i look at the charge of discrimination yet says requesting reinstatement and that is equivalent to a request for employment well you have to be very careful there because you know the statute of limitation cases so you can't just every six or ten months as for reinstatement reinstatement you get it repetitively reinstatement i understand that and that is what the district court said relying on the  reinstatement she wanted oh a variety of things in addition to a job and i would simply holds that when i apply for a job for instance at high v and i go in as a clerk applicant and i want twenty five dollars an hour that requests for twenty five dollars an hour does not negate my application it simply is a request for pay at a different level than what's available so it doesn't negate the fact that she wanted back in that she wanted back on the job but and in the circuit it is very clear that a failure to hire or a failure to reinstate is a separate action separate type of discrimination from a discriminatory discharge and the case in the circuit there's a two thousand and five case else a booty vs tech industries making that very clear the district court here absolutely ignored that lump them all together and said this all relates back to her prior employment from our perspective the better reason case principle stated that a history of one type of discrimination does not preclude an applicant or a former employee from alleging a separate and distinct claim of discrimination in the process that's our case that's exactly what we're relying on here and in the former instance the allegations of discrimination in the by the former instance i mean ms jones former employment that wrongful termination had to do with pregnancy with the americans with disabilities act and with medication abuse totally and completely disc thing from her application where we allege it is percent tell me how they are going to get her former employment over here was based on and it terminated because she was pregnant and she was having issues with medications it raise claims that would have been brought under the americans with disabilities act now when she read quested reinstatement she applied for a new job that was posted open to the public for applications she was she applied she was qualified she was turned down and the position was filled by a male that is a separate claim for sex discrimination now on the second one do you believe you have to plead that the male was similarly situated similar work history or something like that you know are cases that have language like that as an element yes and in this instance she does not really have that information so the fact that her it was a male satisfies the prime to face the elements to go forward but in the fourth circuit in the case of an e o c versus norfolk police department so every single case if i apply for a job in a higher while of if if a woman pyres for a job and they hire a man the privatization case is satisfied we don't it is there isn't there some greater nexus than that required yes i understand that but i i think that even if that was an alleged we should have been allowed to amend add that rather than dismissing the case do you asked for  case the norfolk p e a c versus norfolk police department the court recognize there in the fourth circuit's opinion that collins which is relied on by the district court and it actually do recognize that a refusal to hire is a new act of discrimination and even under collins that that was a viable claim in this case as i stated the original acts of discrimination and they are referenced in the complaint have to do with disability pregnancy medication abuse now as in the e e o c versus norful case we have a separate kind and  stinct claim based on sex discrimination she satisfied the onus for disparate treatment and she raised her plausible claim for sex discrimination and that satisfied bo boss requirements with respect to a motion to dismiss if the district court had critically applied the case law that requires facts alleged on a told me six motion to be construed in favor of the plaintiffs we would not be here if in fact the district court had correctly read the case law concerning collins and webb based two acts would have been deemed separate and the motion to dismiss would have been granted only as to the original claim and not as to the failure to hire but you know that so you agree that the nebraska law  on your state law claims if if i think you do have state local aims but it's the same as the federal title seven that's correct thank you in fact if the district court had gotten those two analyses correct we would not be here and we should not be here we submit that the district court's opinion should be reversed and this case should be remanded for for the proceedings on the complaint thank you your times reserve for rebuttal mr r but got acquitted in the middle of it of charges and as you know the other circuits are very kind to acquit police officers and did these guys have claimed so so how do you address that is that at a practical level  judge in our case here she was terminated for violating various general orders first she was dishonest during the investigation second she failed to advise her commanding officer that she was being investigated by both i was state patrol and the brask state natural i worked a motion to dismiss stage right correct that's their complaint right so how do we know all this other stuff that you're telling us now well judge i guess it was in response to your no i know question so stick to the complaint kind of certainly what was alleged and miss white in her argument indicated that the circumstances terminations are not on appeal your honor are the reference the charge of discrimination and i can i would like to read the very first paragraph in her charge i am a female and was pregnant i have a disability a record of disability and respond to perceive me disabled i worked for the respondent beginning june one two thousand and thirteen most recently as a deputy at the douglas county sheriff's department and requested past accommodations due to my seth sex past pregnancy disability record disability perceived disability and in retaliation for accommodation requests respondent failed to reinstate me what we're talking about here the facts at issue that have been raised by the plaintiff are the exact facts that would the facts may be similar it's being brought on a gender discrimination basis and that language explains it and so it's a it's not the same claim but a different claim and of course your argument hinges on the idea that the requests to reinstate is nothing but an attempt to revive the statute of limitations right and so why are you right why she were wrong judge as you pointed out i think in your question there are no new facts there's no new pretense asserted assertion is not enough to overcome a motion to dismiss i wish i could use up all the time i've been given here but this is a simple case and simply by picking up the phone and calling asking him i still fired you can't restart a new the statute of limitations allowing a litigant to do that would write the statue of limitations on a law would render it completely useless if you have no other choice do read you do read thirty five back to the complaint certainly you do read thirty five to say you have to read it backwards but it does say i have put her first person i applied for an open deputy sheriff position right was addressed and appellant's argument she never reapplied for employment it was a demand letter from an attorney asking her to be reinstated and for back pay as a political subdivision i'm sure all of you can understand in a law enforcement position these jobs are posted in hundreds of people ply she still has the right she did then to reapply for employment she did not apply for employment at that time in reverse order the letter i sent my clients request was not a demand letter it was in response to a specific job opening and had it been a quote unquote demand letter it would have gone to counsel for the public entity not to the employer the douglas county sheriff's other ways that letter is not in the record is it i do not believe so no it's not a complaint so it's fine go ahead but the demand letter or that a man better i don't want to call in the application  that is that of significance in your opinion no what is not why not his those demands or those requests do not negate the fact of she applied what she requested the reinstatement that was my example earlier for instance if a law clerk comes into my office and wants a job and they want to be spayed seventy five dollars an hour well yes they apply but they're only going to get paid maybe thirty five dollars an hour so that doesn't negate the fact that that individual actually applied and in fact the goes county treated it as an application they assumed that it was an application because they sent a refusal letter back and said no we're not going to hire her and i simply would know that with respect to the claims that this all goes back to her former employment mr jones is allowed to plead in the alternative and that is precisely what this  included she alleged items relating to her former employment but those claims were never investigated and they really were not it issue when you look at the specific facts alleged in the charge of discrimination those all have to do with the refusal to hire that charge of discrimination based on the refusal to hire was well within the three hundred days of the allowed for making such a claim this was not a blanket request from a former to please hire me for any job that you have it's not one of those that was only done to extend the statute of limitations it was with requests a request for a specific job that was posted open to the public and it was the only time she did apply if you don't have any other questions saying that thank you for your argument thank you and case number seventeen the thirty one ninety six  for decision by the court