exemptions under the law employer made a motion for summary judgment which didn't include anything about the exemptions the affirmative defenses the trial court then decided well maybe we should decide this on the exemptions hell they would all call many hearing and after that hearing dismissed the complaint which argue was based on an insufficient record and even if even under the record his this decision was wrong do you have any procedural objection to the path that the district court found well i think th the district court had the right to conduct the hearing so i don't object to that i don't think that the hearing adieus the evidence that was sufficient to make a decision on that at the hearing i mean  the district court was still obliged to treat it as a summary judgment motion right and correct it could not make credibility findings correct yes the credibility fines and i made a point in my brief the credibility issue was still the judge can't  believe you mean your client said that ninety percent of the work that he did was doing cleaning himself and there were enough of of things around and at what point do we say no reasonable jury could find what reasonable juries but if you but if we look even closer at his testimony there were three types of work that he performed ok he did outside work which he testified to constitute about three and a half to four hours a day that was not on he was not supervising he was doing manual labor off campus he also testified that he did anywhere between fifteen and forty hours a week and events that was also manual labor it was he was not supervised certainly was not supervising any of the defendants employees he was working with other nonunion employees on those events taking down chairs setting up basketball and that's setting the bleachers so in that context you could take the ninety percent and i think it's reasonable to take that that ten percent of his work was doing the on campus work in which he was if you want to call it supervising he had some people in the buildings that were working under him at at those bill said repeatedly that he was supervising an average of six cleaners right at the buildings why doesn't that make him a supervisor well again this is the the work that he was doing basically his in order for the person to have this exemption under the under the the executive exemption i believe the answer to that is yes those are and of it as they have to show not just  just what he supervised some but more of it and around fifty percent is what we write and they would also have to show that he that he was involved in the hiring and firing a person to ask about that and i'll ask more of that to be other side to what extent was the discipline that is talked about and question mark how well that is made out but does does that suffice to meet the requirement of changing status that is disciplining can be just saying you're a bad boy or bad girl that doesn't change status does it well we have the issue number one of whether he was the one who did the disappearance i understand but even apart and number two you also have the issue of the amount if he was working there for seven years and only one time in those seven years did he go to his supervisor and say you know what i think i don't like this guy let's get rid of him that probably is insufficient is vet what he said i'm saying requirement i think you're right on the edge there your honor and i think that if in fact he had of a role in disciplining employees which i say he didn't but if he did i think that contradicting the other supervisors testimony and mr gonna says now i'm not contradicting him i don't remember but again he also tests in other words you have testimony of the employer that he did recommend discipline and then you have him saying i don't know so is that initial enough for an issue of fact was there more in the record i don't believe that that's exactly what he said your honor and  think that if you look at it what he was saying was i was with the person that was responsible for discipline at the time and that that person was the one who did the discipline well there was that one incident i incidence and i employed doesn't raise any other incidents of discipline there was no other no other employees that were named to mention that he had any impact on our thank you yes whether he recommended discipline in his testimony is a little unclear there are a couple places where he says i don't remember i don't recall on the other hand there are three or four places where he says no  and on a motion for summary judgment should we not construe the testimony in his favor well your honor what really happened in the record and you seem to remember it with precision is that judge weinstein asked him if he had ever disciplined employees and he said repeatedly he didn't remember them and then you gave this one instance and i'm not sure whether there's anything in the record shows what the discipline was whether he changed status for purposes of this condition but this one instance he vend says someone else did it well you arrive then yes about whether there's over instances and he says i don't remember yes judge caliber easy in the supplemental brief for summary judgment that was submitted to the court below the defendants said that he did have the authority and it was predicated on his admissions against interest he was asked if he had that authority and if he used it and he said i don't recall why isn't all of this enough to take it outside the realm of summary judgment i mean this is really an extraordinary little side hearing that yes it was a strict judge conducted and it really sounds when you read the transcript it feels more like a bench trial but why isn't this kind of dispute here about one of the essential factors enough to move it out of the proper summary judgment realm and into having a full trial where everyone has complete notice ahead of time and jury can decide whether all the factors have been proven your honor if he said that he didn't know if contradict one instance here and confusion about the circumstances and it's true that he said i don't know i don't know and maybe maybe that's not enough to create an issue of fact  nonetheless also said no several times he said both no and i don't well judge and contradictory testimony will not suffice to raise an issue of fact that will preclude summary i keep coming back to what instances have new given but he didn't contradict you said he had the power but it is for powering usage and when your client else was present but there was no dispute that he himself gave the warning now with respect to tell it briefly did he do anything with respect of that man big change the guy status and beyond that what do we have and again i'm not saying that ultimately judgement is a matter of law may not the law for you i'm just worried about finding it under these circumstances and you know it  is a great great judge but still as a matter of of law your honor the issue of issuing a warning constitutes in a way rewarding employment law and adverse employment action it is a change of status is the smirch is the employee's record as a matter of fact and subjects them to the possibility of future discipline so it's it's very important if it is on the record yes but it was on the record in one contradicted and let me ask in a related question as i read the the regulations the fourth prongy is that the individual has to have the authority to hire fire or that his suggestions are given particular weight so it's your position that here it's not that he had the authority that was shown he had the authority but that his recommendations would superiors they didn't contradict him is there they were general about his authority and kind of his relationship with the employer that suggest that he would be listened to well that was his response part of his responsibility to iran or he carried out his duties under a relative lack of supervision he was the first line interface between the cleaners and later on upper management  there even in this particular case that his employers paid attention to the fact that in this case the the warning of red sickie they did pay attention they endorsed what he said they upheld the warrant as his testimony was this is at page two and one did i recommended no he said i did recommend it i didn't because the assistant director caught the employee  self he didn't recommend it your honor because he did it he didn't have to recommend me that's your very down or a target taishan huff the testimony by couldn't a reasonable jury interpret it differently namely that he didn't have to do anything because the assistant director caught the employee and softened disciplined him on the spot your honor a reasonable jury couldn't hold a lack of authority on this record but  more a matter of interpretation of what his duties were he took areas that he said he worked alongside his first line porter's judge analyze that to determine that yes he worked alongside the porters but he wasn't doing the physical work himself he was allocating work he was directing work isn't this really a case where the district court looked at the fact that his salary was high and it certainly was and that he worked in a coat and tie was not a member of a union any number of things that made him if you do need to have a wall for your honor and didn't have a court kind of shade over view of others because he was convinced by these ones which i must say i would say are important we're told we have to meet all your honor i believe that when judge weinstein looked at the papers of him put before him it raised his suspicions based on many of the factors that are used to judge whether an employee is an exempt supervisor when he carried out his hearing on notice and directed the parties to be able to argue on these issues he focused in on the issues i believe he thought were important however he didn't gloss them over he made very specific findings of fact including each one and i might add that his findings of fact were predicated on statements against interest i apologize  sorry i interrupted you but i do notice that he said as to the ninety percent that judge calibration is pointing out that this testimony is not credited it is found to be untrue that is correct and where on summary judgment your honor the hearing testimony in place of deposition testimony but you can't make findings of fact you're depriving the plaintiff of a right to a jury trial well your honor  that that claim the claim of prejudice was actually not made the case while it seems on over a start at times there are times when we say that something someone said is incredible and there is uncontrovertible physical evidence that shows a picture or something else that comes up in torts cases he couldn't have  because of his beating and things of that sort but it's a bit try to fit it's it event category but i have trouble because there is you know i might find it unbelievable but i'm not sure of it at s y judgment we can judge at the risk of being redundant the plaintiff laid out three areas of primary responsibility inspection on campus inspection off campus and then doing set up work he concluded he the plaintiff concluded that this was nonexempt work judge weinstein drilled down into those conclusory statements and found that they indeed were exempt work and he made very specific findings so yes when he finds facts totally contrary through the point of sun and mission i do not believe that this a genuine material issue a fact upon which a reasonable jury could make a finding thank you we have an argument well here  thank you a couple of quick points one counsel mentioned that my client was a was the front line and there was lack of supervision now the record is clear that that's not that's not the case my client went to daily meetings he was instructed exactly what he was doing that day there were events were discussed he had to know you have to be here at this time you have to be here at this time you have to set up for the six people he supervised at those meetings now you know so he was given specific instructions he didn't have any discretion in terms of what to do that day didn't he have discretion as to how he was going to manage the six porters not really because the six porters had daily duties that they had to perform for st john's and they were those duties were consistent every day you know they had their anyone else supervise them exporters were they all equivalent status they were they were they were union employees and my point is that my client had a supervisor several supervisors above him that were directing him specifically what he has supervisor of those six but again there were other supervisors above him that had contact with those and but that's it that doesn't suffice to take him out of the exemption if all the other  wrecked i would concede the point on the supervision i have no i have no objection to that but again the second prong of that that exemption is requires it to be primary duty and the mullins case indicated that even though the the individual had supervisor duties as to those people if that was minimal or the impact of what he was doing on that day if he was had no choice in terms of what task he could form that day then you don't you don't satisfy that condition on the statue the other point in terms of time i'm sorry