please the court my name is tim casey i represent the plaintiff appellant josephine rosenfield i'd like to reserve three minutes for a report all i understand the court may fashion this differently the issue before it but i respectfully submit that the issue really before this court is whether the circuit is going to adopt the mckenzie rule for h r managers in the f s l a context now whether we call it the management of the manager exception or the manager rule we respectfully submit to you that that rule is it consistent with what this court has already decided and what the supreme court has decided and purposes its purpose is plainly are to make shirton that there is compliance with the wage and hour laws of employees and well that's fine in generalities yes or you have to have a comes to manage us is also it's of things that managers do may do on behalf of lower level employees they may just amount to advocacy or may just involved  of policy discussion saying this is what we should do or say look i'm complaining that that that this is not being done and i think that's  the the key thing is compliance is how do we comply with to how do we comply the congress chose to make sure that employees regardless of title regardless of job description regardless of duties made sure that there was compliance that was a congressional public policy decision and in order to make sure that that is done they had under section twenty nine u s c two fifteen a three in anti retaliation provision that make sure that no employee has to face economic retaliation for that can do for achieving that congressional purpose so in answer to judge kozinski question is how do we try to make sure that it goes something beyond and it's not just what the fifth circuit discussed in hagen was an intra company dispute but what i want to do is look at lambert lambert for a minute which is obviously from this court section two fifteen is designed to ensure that employees are not compelled to risk their jobs in order to assert their rights williamson that decision come ports is the is the main is the main thwart of that particular food provision is to prevent economic retaliation so an employee doesn't have to put it online make kensi as it's been adopted only in that circuit the tenth circuit but the other ones basically requires two additional requirements for an h r manager one step outside of the role of the h r and then take a position adversarial to the company speaking policy and you can never discipline because everything they do that sounds like you know a policy position becomes a legitimate concern but the concern that ought to be adopted by this court is in the benefit of the employees regardless it's also true that under any statute retaliation and any employee they can always all be fired for cause it's only a question of whether that's a triable issue of fact as to whether carlos just cause was the reason or something else was the reason yes and i think the main problem  but that just puts everything makes everything a lawsuit you know i guess if the manager if a manager says anything that that advocate you know the favor of employees then anything that i respectfully submit that we do have claims that were submitted we have eight separate claims but specifically i would address the court to three different complaints actually four different complaints the first complaint was done off on her complaint about the company's compliance using the term compliant is that went to revive yes that was the first instance in which if you have to go a step beyond outside of the role and get adversarial if that's the mckenzie rule this court adopts she did that well there's an issue of fact that really is in precisely that is underlying most of our argument is the district court we believe made a determination that will he determine there were no undisputed facts we believe it is of tribal issue i mean she says jerry there's a reference to a complaint but is an actual complaint i mean this is this is a back over your her complain complaining she comes in and she tells her immediate supervisor upper management i forget the fellow's name at this particular time verb and mat verb and the company is not in compliance with all i say you're having people work the clock you're doing this cetera she raises that complaint and he tell us or she has to back off of this this is not being received by management and then it e r one fourteen it goes a step beyond that she is then and i'm what i'm looking for specifically i believe it's outlines fourteen and fifteen between may and july of two thousand and ten she made her first f l s a complaint of global trance management to mark ericson and her direct report manager matthew vervet and what she said there and there was nothing particularly magical about it but what she did is she says that you are not an f l s a compliance that you are in my words that you are cheating employees out of wages and that is when she is told you have to back off and you have to rehabilitate now under the lambert decision your honor the case says so long as an employer communicates the substance of the allegations to the employer he or she is protected by two fifty three the cast and supreme court decision says it page thirteen thirty four the recipient if the recipient has been given very notice that a grievance has been lodged and does or should reasonably understand the matter is part of the business concern there is protection and so what we argue here is the for the strongest arguments if you adopt the mckenzie argument of hostility or add adversity is the first complaint he are one twelve the sixth complaint on december third please the court the need to james here on behalf of global trans enterprises and to individual defendants on this case if you want to jump right to those jump or two or three complaint can i can i ask you if i'm sorry richards his answer here i want to backtrack a little bit because what we've been talking about last is even if we adopt the mckenzie were all there are issues of fact but i'd like to back track on whether special kind of statute where the person in question there was basically in a quality control position everything he did was to make sure that the energy process was going right there were and it was a nuclear believe a nuclear plant kind of thing and so there the language in that statute was not the language of the f l s it was not filed any complaint  and this court determined that basically anything he did was protected activity because of the unique nature of his role in ensuring the safety of this nuclear energy process and his job had i mean he was  his employer said his job duties but also the statute said his job duties and it said he was required to have full and unfettered access and right what it did then and interpret a stamp that seemed even to perceiving under you know before the nuclear regulatory commission and yet we said well we can't fulfill the purpose if we go literally with the stamp and it just  seemed parallel to me at least on first three well i think if you look closely it does not use the filed any complaint language and it really does create sort of this  employee who has both regulatory duties and duties to the employer and i think that's what really makes that sort of a sue each onerous type of statute i would like to talk a little bit of mackenzie which is great i'm sorry ok go ahead so i think that the place you have to start is the cast in case the u s supreme court interpreted the filed any complaint language of the f s i in two thousand and eleven so it wasn't a manager case but i think what the supreme court said in that case is very pertinent to how this court construe that language in the context of a manager and we you know our briefs we were focusing on stuff there on particular language but i wanted to call the court's attention to some other language from mckenzie and there's also a phrase in the statute that prohibits retaliation or discrimination against any employee and wooden paddle also have to have a broad interpretation yes your honor and i think all of the manager rule cases acknowledge that they are applying a broad interpretation to section two fifteen a three but there still has to be a complaint and the language i wanted to call to your attention from kasten is actually on  page thirteen thirty five of that decision to fall within the scope of the anti retaliation provision a complaint must be sufficiently clear and detailed for a reasonable employer to understand in light of both the content and the context and assertion of rights protected by the statute and a call for its protection so that i think that is important language because when you're deciding if something is a complaint you've got to look at the content and you've got to look at the context and it's got to be asserting rights under the statute adverse to the employer and that is what we don't have here  the and kasten is also very clear that there has to be fair notice to the employer and so you also look at the complying and say is this putting the employer on notice that a manager is making a complaint that could support a future retaliation claim against the company and that's what we don't have here now there's a couple of published decisions from other circuits applying kasten they are not in the manager context and they're not cited in the briefs but i do think that they give a further gloss to what the supreme court meant and cast in that this court should be interested in one of them is montgomery versus ha montgomery versus having a case from the eighth circuit involved a law firm a small law firm and a paralegal who she stopped working about for forty five one afternoon the office manager wife of the lawyer in the small law firm saw her there that she'd stopped working she told all of the employees to go ahead and close and leave off lock you out and the paralegal found out that the office manager had clocked her out ten minutes before that she clocked out the other people and she called or and they had this cop telephone conversation she explained their positions the office manager said ok i'll correct that i'll give you the the ten minutes then there was a second phone call about something entirely different that became very heated and the paralegal got fired and the eighth circuit affirmed the summary judgment in that case relying on kasten saying that no reasonable jury could find that telephone call which was about the wage and hour issues to be sufficiently clear and detailed to understand that the plaintiff was making an f l a complaint in the the tenth circuit applied kasten actually in a title seven case but the complaint at issue there was a facebook post and what i think it's really interesting about the tenth circuit case is it reads kasten to say to file an informal compliant with your employer you've got to use the informal grievance procedures that your employer has set up and if you're and the tenth circuit reads cast into say an informal complaint to an employer that is outside the grievance procedures like a facebook post is not sufficiently clear and detailed to give the employer fair notice and your cast which brings us to the you focus on those and so mr casey is pointing back to his statement of facts at the summary judgment stage in the district court and what i would urge this court to do is look at the real evidence and not counsel statement that the evidence in this case is very limited it's one in iraq a tory answer  even material and the district court didn't rely on it in reaching summary judgment so the first complaint was and let me say in a rocket story answers are in the record yes they started page one twenty seven and their extreme lee specifically couched about fairly standards act their message there's nothing vague about you know gee i guess i ought to get ten more minutes which is what you were describing the montgomery  case and they're described by her as having been these employees in prescott or wherever it was are not are misclassified under the fair labor standards act you know there it's clearly  f l s a problem that she's bringing to the attention of management and there's no doubt about that in all of her communications with the managers but just being invoking the f l a say does not turn it into a complaint what is key is that in all of her communications with her fellow managers she is talking about what the company needs to do to avoid liability to comply with the law to bring it into compliance with the fellas say it only becomes you don't think congress intended to protect an employee for in who's doing that firm being fired for that reason not for not coming to work or drinking on the job or some other problem but you don't you think that congressional town when they talk about any employee would protect a person who did this you know congressional intent i think would encourage managers to engage in of whether in general an employee in this situation is intended to be protected by the statute at all which is the issue that you have raised in this case and i'm asking you about congressional intent in that context well all i mean mackenzie and all of the other circuits that have considered this under the fella said i have determined that that was not congress intent that congress had no intent to protect interim management communications about getting to the point of compliance that they intended to protect only complaints that gave the employer fair notice that you were doing something against the company in a sense she was stepping outside her normal duties to do this that's not how i believe the step outside her role should be construed it step outside the role of the manager acting in the interest of the company versus doing something that is against the company like calling the department of labor or threatening to call the i thought there was there were cases though saying that internal complaints do suffice if they are complaints but if they are you just have an answer to my other question that no no stepping outside your role requires you to be calling somebody outside the company that's oh no or threatening to call the department of labor or telling the employees they should hire a lawyer or you know telling the employees oh you should sue us because you win and those are kinds of well yeah i also guess that create a perverse incentive because what it what you're saying is that a manager who sees that an alleged violation who comes to higher management and says i see an alleged violation here and i would really appreciate it if the company would fix that they can be fired for that reason under your theory and but if they then say and another thing i'm going to call him you know the fads i mean doesn't that actually we do see the opportunity to obtain compliance if you go back to cast and cast and it has to be a clear detailed complaint an assertion of rights a call for their protection and what the sort of theory that mr casey is advocating what i believe you're saying is that managers should have extra protection they don't even have to file a complaint they just have to mention the f l s say and question whether there's compliance and they're protected but an employee has to actually do something that's not you know hey what about this isn't there some overtime obligation they have to file a complaint but they can do that internally they can call the same manager that this person called and say i'm not getting overtime and i'm entitled to it and here are the dates and i invoke the f l s say that's sufficient under the case law because they're a check that employee but if the if this person did the same thing and got fired for that she's not protected that's that's the that's your position the manager is if she's acting in the interest of protecting the company from liability then she has not communicated a spoke to the manager of the call center and said hey these people need to be required to rise as hourly employees because their phone reps that was what that is what she identified as the first complaint  company going through each of the positions in the company talking about whether they should be characterized as exempt or non exam and i believe this is the one where her the president says good job after they've completed that rundown of all the different positions on the company and talked about the principles of the and whether they should be exempt or nonexempt and i believe that these seventh compliant  mr casey mentioned is i think he said march ninth after under her guidance the company had to rise to a number of going to be checking up on the other managers to see if they were making sure their employees were completely relieved from work during lunch breaks thank you you have about a minute yes is the seventh complaint because none of them can be looked at in isolation because that benefits that makes it a a sterile environment where you don't have the opportunity as a factual determination to look  i thought you were going to tell me what they are yes we can we can we can figure out what the significant you know yes you want what what are these things that you are ignoring complaint on the seventh and eighth complaint her ignoring what the boss tells her to do and what she affirmatively does is she discovers up in prescott valley that there are still having f l s a violations she tells her boss that who's told her you're not involved in this on the twenty six in the following business day on may thirty first she's fired on the sec the sixth complaint she challenges the c e o s designation of his own mother as a salaried employee and he she challenges her immediate supervisor anthony and her immediate supervisor she's told to back off she then is told that she needs to rehabilitate it but she doesn't do it so i'm respectfully submitting to you judge kozinski that if mackenzie's the standard it's not cast and it's not lambert if mackenzie's the standard she has gone outside her role and she's demonstrated the adversity it takes in order to do it and if you look at most of the cases your honor under mckenzie an entire class of h r employees is excluded from ever trying to comply with the f l a say they're not subject to anti retaliation and i understand the courts have the if if we follow mackenzie i'm not sure ignores her bosses who tell her to on two separate occasions to back away don't explore and she still does that's outside role if the if the issue is if i've got to go and put myself in a position of adversity what better way of doing that in putting your job on the line and ignoring your immediate supervisors boss the same way as if you're a law clerk you say thou shall not research this and they go do it that is what that woman did problem law clerks re