good morning everyone so we have an unusual situation today all of the cases on calendar are related we have allotted twenty minutes total to address these cases and we try to select the cases that based on determination that she faced in two thousand and fourteen which she believes was motivated based on her protected status the reason the case is here before you today is because of the motion to dismiss those granted in the district co judge and that kind of that motion to dismiss scott's across the board because there's seems to be you can correct me if i'm wrong but you seem to be taking a position that you don't have to more that that judge shanley was holding you to a higher standard than it's required and i guess and you're kind of putting everything in one basket and if i'm correctly reading the wasn't holing holding you to a higher standard then is that the end of it well we asked to be sent so that the cases can be litigators as previously close so you  want to say that the pleading is adequate is the is because she didn't say that you want to send it back for leave to me and you want us to send it back with the ruling that your plea was yes or yes but if we don't agree with you understand it it's sort of like you know when you when you're all in your say and i mean i'm right and it's enough and if we agree with you then you go back and you did then but if we disagree with you and we say that x ball stated that while plated facts and a complaint must permit the court to infer more than the mere possibility of misconduct and we don't think you did that then  how let's just say we disagree that if they're not adequate then we've got what seventy seven people total ok so then who all have different facts and we don't have any offers of what each person could say and they're not all some way situated in the sense that i think one of the people grieved and has got hired back and so that person i had that person in a completely different situation then we've got i mean we have all of these other facts and we have no showing of here we are at the court of appeal and we have no showing of what what facts you could show i mean each of them right in your honor i've tried to focus on the issues that i felt were it is shoe in the decision that was made at the just record level not to present new facts not to present the employment histories that have come since the decisions have been made  for example that adams associates is no longer affiliated with the sacrament of job corps these are issues time has gone on but they're not the argument that i was prepared to make on something i ask you were these people employed by sacramento job corps or what they employed by adams adams was the contractor responsible and so technically they were employees of adams ok and my understanding is that there was a joint understanding between two entities it was the mcconnell and city and adams but adams was actually running the center so if an employer if someone asked for one of the claims was for the release of personnel files yes  and so it's your position then adams was the employee who had to release the fouls of previous employment with sacramental job or how did that work how would that work it was under saying it was my understanding or in the transition period between the prior contractor for the center which was horizons and adams that a transition was made and personnel records were available and relied upon by adams in that time period so if to the extent they were making decisions regarding hiring or term an asian or things of that nature with those records that's what was being requested and that's what we were arguing in that case were not produced so if the  previous past or present employer you would say that applies to adams i would say that the standard applies to an employer and that they were the well we have got jennifer who the employer is right so was adams who is that pass so i'm trying to if somebody has been terminated and you know all of the people were terminated or they relieve their positions or whatever and they had to reapply correct correct so at that point was their past employer so the the the situation that your honour's pointing out is that in this transition from horizons to adams there is a transition of the employer some of the elements we're arguing are the same for employment there was a collective bargaining agreement which would include who paid who paid the wages who told the people what duties to perform who hired and fired that would be some test for who the employer right and the argument that we would make would be that horizons was the initial employer there was a transition to adams as the next employer so their management people were on scene they were the ones who  responsible for setting schedules and things of that nature what leads you what in your complaint or what you said you were led to believe that adams had the records that belong to horizon i mean the person horizon was the employer presumably maintained personnel files what leads you to believe that adams had them even if they didn't have them after horizons finished the transition period because this is a period of time we're talking about between february when adams is announced and then march when they make offers and actually come onsite as the employer even if they were not in receipt of all horizons files as they continued with employment the job applications the memos taken it interviews the other documents that should have been maintained as part of a file for the applicants should be there the documents so the new personnel files yes that i would expect that for every person who transition whether they were in fact hired or they were tonight hire some of the cases differ on that they would have a file at adams in other words  when i say adams i mean at the sacramento job corps with adams management having possession of that file so you're not necessarily suggesting that they had the horizon personnel files for all of the employees of horizon no and i'm not asking that they would go back and contact horizon to try to find files that they don't personally have but it's my belief that they would have again even if it were just the root file of the application resume notes from interviews things of that nature there should be some portion of filed well the problem is because you don't want to tell said anything that way we have to keep asking all of these questions and you know catch none i was and you know we're reviewing him for abus discretion and when you can't even you know when and you didn't know that you know when you can't even tell what happened i at it's very difficult to say he appears just this question why i believe that the pleadings were clear as to what happened to each of the employees and i'm sorry for we got off track from talking about this broad next in the ten minutes that were allotted for her conclusory allegations and i think that well in twamley require just a little bit more factual pleading for instance it to say that there was somebody who was unprotected who was treated more favorably and named that person than what the more favorable treatment and your honor i do agree that what i was reciting was the basics of the cause of action she had the the facts i believe are there that she was hired she worked for a month faced a false allegation of sleeping on the job was terminated without due process even though she was a member of the union and should have been allowed to go through a grievance procedure and stepped disciplined and so generally what we would see is that someone who did not have this protective status was was also caught sleeping on the job and was not terminated so to me that's the missing link that you had in your allegations and we did include a general allegation had observed other particularly younger white coworkers who did things that could have warrants to discipline him or not discipline that's too general ok for this to me i'm not speaking for anyone else but our case president it before we do that let me just for the record say that the cases will be argued in the order listen on the docket the cases of teen versus adams and associate roles versus adams and associates versus adams and associates aspirants versus adams and associates and taylor versus adams and associates submitted on the brains we just heard we're hearing argument now on brought next verses adams and associates  runners morning morning may it please the court my name is john adams adams and associates corporator no relation no really the district court applied the proper standard and correctly determine that  entirely proper i can talk about the bleeding standard if you'd like i think we know what we're clear on that i can address some of the points that were just made i guess i'm a little  didn't seek leave to amend and basically stood their ground and they didn't seek leave to a man and before us so can they seek leave to amend here or and you know i don't maybe there maybe some people can state a plot suppose case but what what's your response to that from your perspective my perspective is that it's too late at this point you're absolutely correct did not ask for leave to amend i believe it's it would not be proper to grant them that at this point counsel's make clear they believe these pleadings are sufficient which is why they didn't seek leave to amend and it would really be futile at this point thirty dollars judge not only did leave to him and when he granted the nd motion to dismiss is because he determined that it would be futile they could provide no additional factual allegations to support their claims what did he just refused to do because he was standing on the ground said i don't have to do more or i know at this point i don't doubt that there might be some more things but i don't know how do we have to ferret that out we do not because that they were given two chances two bites at the apple the st order the order granting the st motion to dismiss all these people don't seem exactly alike to me they're not they're very different in fact you have some of us who are saying they were discriminated against because they were a man and some because they were a woman so obviously there are some conflicting but never pays for the allegations are are the same discrimination on the basis of protected status right in fact because they all lacked any did so and i can tell you he absolutely did as a litigant i was a little dismayed frankly to see that there was a roadmap laid out for exactly how these plaintiffs could amend their complaints and then they simply did not do so and i think judge not only saw that as well and so you know they have been given the specific reasons how these quote complaints were deficient they did not come back and correct those deficiencies the only conclusion is they could not do so and that's why i believe it's futile to allow them to amend at this point is there anything specific that you want to argue regarding this brought next complaint simply that her allegations are completely conclusory there are only really t allegations that even come close to having any kind of specificity paragraph thirty three of the st one to complain or she says she observes others were treated differently than she as counsel said there was a general allegation that others were treated differently and as the panel pointed out there were no specifics about that it was not that someone outside a protected class was put into the specific position that she had once held that the lack of detail that allegation completely conclusory and thus not entitled to the presumption of truth which means she cannot plausibly state a claim did she ever even allege that no there was a general allegation that other people have broken the rules and haven't been disciplined but to cheat ever even allege that other people had been caught sleeping on the job and were not fired i don't believe so i mean there are a lot of cases in a lot of facts one of the  other employees were caught sleeping and were not terminated but they did not allege that those employees fell under protected categories i think that was the person that was found sleeping twice that many of these appellants were found  sleeping that was the basis for several terminations and i apologize that i'm i may be conflating those facts but i don't believe she did know no one ever specifically allege that a non minority was not terminated for being found sleeping so what about the access to the records so a person who is not rehired or whose employment is terminated does not have access to the defendant's employment records how can such a person allege with both the city their cheers he or she provided with any documents that they've signed that's the only code section in the labor code that applies specifically to applicants obtaining doc about the former employees at that so that's the conundrum that i was trying to question about because a number of these people had previously worked for job corps think almost all of them had previously worked with job corps so why isn't it fair to say that they are past employees they worked at the job corps center they worked for prior to  ms and associates horizons that was their employer the location where they were it was a job for center both horizon his record can we verify who the employer was well they right considering employee at sacramento job corps which is the site that was the point that i was making where did with fear an allegation that horizon was the past employer so on page forty two paragraph  employer that's why i have the question whether or not there is a legitimate claim if sacramento job or with the employer and the records not clear on that w i would need to go through more more closely in the complaint but she does allege that she applied to work for adams and so see it's that's a bit picks the question because if she was employed by sacramento job corps prior to her application then that would still be the employer us who the employee is she thinks she was hired for the jack sacramento job corps by a predecessor doesn't say in there who the employer is what was she said she was hired by her predecessor and then several paragraphs later she says adams is the legal successor to horizons you services that presupposes that she's identified the predecessor as her employer in this allegation does not do that what's good for the goose is good for the gallagher has a piece of something specific in the record that identifies the employer if they identify the employer in their complaint and we take the allegations as true that she worked for a nd all job corps we don't have anything in the record to refute that right i right i guess a sloppy pleading means she can't meet the standard slopping beauty pleading might mean she can well i don't know that's just cut either way i mean in terms of the personnel files why w would there be resistance to providing the personnel files and any of the we don't know that adams had those personnel files if adams had the personnel files would it be your position that they had no obligation to shore up your position was they had no obligation to provide the personnel files under labor concessional of a ninety eight point five they do not but only if they are not if only if there are not a past employer right if adams was never her employer then it would have no obligation sacramental jop poor or her employee employer and adams is the manager managing agency for sacramento job corps there would be a duty i don't think that's correct why not  agency but when the agency have to assume that duty under the law because they're not the if they're not the actual employer but if we're soon if i ask you if sentimental job corps is the employer and adams is the managing agency for sacramento job corps nd job corps has contracted all of his responsibilities to adams then why wouldn't adams have that obligation to to to turn over any thank you very much your honor i did want to address the one issue that you were you're dealing with right there at the end about the nature of the employment relationship and whether it was continuing or not i think that's one of the issues that is it's an ongoing concern for me with several of the people involved in these cases there's the fact that they were members of a union and so therefore even though there was this transition of employment there are certain expectations that are built into being part of a collective bargaining agreement that still continues including that you have the same rights seniority it cetera that you have has a separate issue and the discrimination claims there isn't that something that would be the citation that was made in that i was trying to follow up here was that the reason why so many of these people said we were denied our grievance procedure we were denied due process was because not they were trying to redo the action but because we believe these are specific facts that show bad faith in the reasons being given for their terminations so that if an employer says i believe that you're sleeping on the job and here are the three ways that i'm going to violate your employment rights now to get you out the door today i think that that is specific factual evidence but going back to the issue of the personnel records i thought you conceded when i asked the question earlier that the former that they work for horizon youth services that that was their employer i said that that was the predecessor yes employer and again it's a employ yes i did say employer and i'm sorry if i'm trying to address two different arguments that are sort of close together because i think what the court said was we don't know what records adams had and we don't know what was there and what i'm trying well we're saying is that we don't know what adam's responsibilities are with respect to the records and if they're only responsibility is for employment records of their former employers and they were never the former employer anyone except the i believe three people who were hired and then fired would be horizon that would have any obligations for personal records is the obligation between horizons and the subsequent contractor as to what records were there or what was going on the argument that i have is that there was a continuing employment you know judge ronson was trying to drill down is job for the employer where these people did it but you yourself you're bringing the action and you're so used told judge bolton that it was that horizon  that employer and then adams was the employer yes and i want to clarify counsel i think was saying a very similar thing to what i am which is that there's the job corps center there was the predecessor horizons who i i believe we played was the employer and then there was silence i was in in you play that tailor play at that she was a continue continue an employee it's a sacramento job corps what does that mean it means the point that i was trying to make which case says that once someone has been terminated and is reapplying that they fall within the statute to be able to request person employment records what case are you relying upon that has interpreted that regulation of the labor called i q i can't think of a specific reference to your honor instead what i would refer to is the n l r b decision which was in this case which required that miss taylor be rehired with the same seniority and continuing but those issues are issues for the labor board not for the this federal action but i think you can see where your time but we will move to franklin vs adams and associates if you please put five minutes on the clock