good morning or honors please the court my name is david mayer and i represent the plaintiff appellant gregory clemens in this case in this case your honour's the district court impermissibly crossed the line waded into fact finding decided multiple central factual issues in the defendant's favor in the movement's favor and granted summary judgment against the plaintiff ignoring much of the evidence that supported the plaintiff's case either ignoring or discounting it drawing causation case so that's i think the most important thing there are a motivating factor and the only thing that you have is a suggestion essay motivating a look at what he said to him or just the fact that the person was not working for perfectly for whatever reason causes you to look at the shit that he said it is how it was vet the f l s say rever very simply if somebody doesn't work we have to still look at the amount of time that he says he worked why is that we had fellas we were honored for and foremost there's direct evidence here from the decision maker his manager david little that he reduced the comp the contribution units and reduced the compensation and then had to justify that sum in some manner and four days later made a complaint to h r about force of occasion but when he met with mr clemens when the manager met with mr clemens on march fourteenth and said he was taking away twenty contribution units he said directly that this was because of his medical leave he said and i'm quoting here from the joint appendix six eighty four to six eighty eight mr little told me first of all he saw no way that i could have achieved my target given that i was on medical leave he told me that his managers would not sign off on the commission that what the system said because because i was on medical leave is he say medical leave or is he say leave  is that is he say i don't see how you can claim that you work this much when for whatever good reason you were away or  is he saying it's because it was a medical leave that we look at it and that for me is a question of whether v f l is a is it his is involved in it or not i mean if somebody says you have to say that you worked a certain amount of time when for whatever reason you were there how  imply anything about the f m l s a well you understand what i do i do your honor first of all the story that the manager david little told to mr clemens in that meeting was completely different than the story that he told four days later when he filed any which are complaining so so he gave two different stories the story he gave to mr clemens was not focused on any particular claim of units he didn't say that on the s a s project you claim too many units project you claim too many units he didn't say which by the way he testified to this deposition was his normal practice to do he didn't say i have a problem with with the units you claimed i want to sit down and understand why did you claim this many units for this task he didn't see any of that to mr clemens on march fourteenth he said to mr clemens the overall compensation here is too high for somebody who's been on medical leave that's what i think that's what my managers clearly think and they will not sign off on that and for that reason i'm reducing your compensation and you should just be happy that you have your health back that you're on or is it the joint appendix six eighty four through six eighty eight there's a really recounts over those pages exactly what happened w what was said to him by mr little at that march fourteenth meeting now in this case you are we also it's important to understand how the incentive compensation is calculated it's calculated by a table that says when you complete this task you get this many units mr clemens claimed to have completed certain tasks while he was on the ten months that he was working he didn't claim any tasks for the two months that he was on medical leave that's that's undisputed so he claims tasks four or units for specific tasks and he listed the task and he listed the unit seen listed the dates none of those dates were while he was on medical leave and it came to a certain number of units that number of units by the way is exactly is less than if you if you multiply that out to twelve months it's actually less on a monthly basis than the rest of the team who work the full twelve months so in a pro rated basis it's not like he's claiming way more units than anybody else he's actually claiming less on a program that monthly basis so if if the concern by david little had been with some of those line i which is what he later said when he four days later accused mr clemens internally of having and he used the word falsified these entries that's a very different thing than saying to mr clemens i think that your units overall are too high here so he changes this story number one by the way he also david little also admitted to the investigators that he had said to mr clemens that his units were were were too high for somebody out on medical leave that's in the notes of the investigators if we now turn to the terminations determination was david little it's undisputed david little the manager made the determination decision now little says well i i decided to terminate him because of the results of the investigators which then the review committee adopted without doing any further investigation and we show point by point by point by point your honour's that mr little fed false information to the investigators he said you can't claim more in than one set of units if it takes you multiple weeks and the plan itself says there are categories where you are given three units for the task period and then there are other categories where you are given five units per week of work it says for up to one week of work in the language is totally different and the person who actually administered that plan is right in mr mr clemens sworn testimony that he was told by the person who administered the plan he's entitled to take more he can claim multiple sets from multiple who are saying that the person who fired him knew that these were falls that's you're  geisha because if the person who fired you believed that they were true even if they were false you don't have a claim and stand on it in mr clemens affidavit he said categorically david little told me that i could claim it confirmed that i could claim multiple sets of units for for multiple work weeks of work so that's right in his affidavit their sworn testimony david little doesn't actually contradict that he says he didn't actually remember addressing this with with mr clemens but then when you go through each of these projects david little came in and he said i'm sorry your honor of firing david  conceded in their brief that the decision was made by david little little claims that he did it based on the results of the investigation that was adopted by the i r b committee but the investigation was was almost exclusively not quite exclusively but primarily driven by the information given by little himself to justify the units that he'd taken away and we go through point by point by point your honor in in the brief what you are showing that it was false  straight you say that since you say that what little said to the investigators was false then if the investigators come back with a report and then little act report we can say that little was simply going on the report we each he made you believe because he couldn't believe it because of what he had told view investigators in the first place clemens he claimed to the investigators it's right there in report that that little claim to the investigators that mr clemens copied the battle cards from from mr gill at his deposition i asked him do you know whether or not he copied these from mr gill and mr little said no i don't know i have no idea so there and there's point after point that i could go through that we go through in the brain the main brief and then i summarize in the reply brief point by point by point on all of these central issues that result in those twenty contribution units that he took away where he took them away he said to mr clemens i'm taking these away because you can't earn this much for somebody who's been on on medical leave he was very clear in the testimony and the page pages that i  this is that mr clemens in his own deposition says i don't believe of discriminating against because i asked for a leave of absence your honor that that was  taken not only taken out of context he explained that answer literally one question later in which he made it clear that he thought he was being asked what was his state of mind at the time when little came to him question and answers in the reply brief i can i can give you the page references it's on page eight of the reply brief so so when you when you don't stop at first question you realize you know what he thought he was he was saying is what what was my state of mind at the time that that march fourteenth meeting when i when mr little said i'm taking this away from you he didn't know at that time that middle that mr little four days later he's going to launch an investigation accusing him of falsifying units because little didn't say a single thing about that mr mr clemens he didn't say listen i have real concerns about your units i want to go through line by line how why do you claim this many units for this task that that was his normal little's normal practice if he thought he had concerns about units that were claimed he did none of that it's undisputed he said to the investigators he admitted i didn't ask mr clemens about a single one of these entries and that shows a certain state of mind good morning your honors may please the court can turnbull representing defendant appellee moody's analytics i submit to the court that the district court faithfully adhere to the well conversation with mr little where the fact that he took medical leave was at least a factor in determining or rejecting the unit's germination what are we to make first is that accurate in your view and if it is what we make of that testimony so so mr clemens contribution units which measure someone's activities that are intended to help generate business and sales were evaluated by mr little and by his co manager or assistant manager and a crane independently they do it every year as part of their evaluation knew how long mr clemens had been out he knew what his activities were and when he saw the number of claimed contribution units he was skeptical it was not f m alay specific it just had to do with the fact that he was out of the office you were medical leave but you're saying that the fact that the words medical the really made no difference he was just say you were  deposition my surprise was that the total number of contribution units claimed given the amount of time out of the office and given what i knew about the projects mr clements was working on that is what prompted my review and a crane independently said i looked at the claimed contribution units some of which he claimed work on projects that i was leading and i knew for a fact that the contribution units that he was claiming were not legitimate because i was supervising that project i want to clarify one other point mr clemens description of his meeting with mr little is a little different than what we heard earlier mr clemens said that during this meeting this this march meeting that mr little and here's a quote and he kept saying i remember specifically he kept saying over and over there's no way i can approve one hundred sixty hours for a one hour presentation or there's no way that i could have achieved my target given that i was medically correct but again that is not f m s lay specific the same conclusion would have been reached had he just taken a leave of absence the same conclusion would've been reached had he been on a short term disability leave i think the other important point it's not saying i am rejecting because medical leave it's no way you could have done this while you're  correct that the number of contribution units you're claiming which are stretch goal made me look closer he didn't just make a decision because it's a stretch he actually looked closely at them the district court  year on an appellant has said that the district court shift improperly shifted the burdens and i think the district court clearly understood and articulated that plaintiffs had the burden of demonstrating pretext no that's an error i'm not sure it matters in views context but he'd it there's a difference of having enough evidence to demonstrate something to prove something and to have enough evidence to get t jury i understood your honor and i thought and i take your point that if it was an end in artful use of a particular word what your point is this is what it says plaintiff fails to prove by a preponderance of the evidence that little repeatedly lied to investigators that's not the proper standard the plaintiff doesn't have to prove anything by a preponderance of the evidence at this point now judge probably follows it up with basically stating the correct standard which is that the evidence would not allow a reasonable jury to find for him but there is some sloppy language there that you seem to work very hard to defend in your brief and i don't quite understand why there is no way the plaintiff has to prove anything by preponderance of the evidence at this stage that a question the court looked at the record as a whole it didn't it didn't look at one statement based meal at it we can affirm any groaned if it is vigor so that we should ignore the fact that the court actually stated the wrong grow honor yes i'm saying that if the statement was wrong the courts can still review the evidence and just as the district court did hear i believe the evidence was overwhelming against this one comment we have of opinions by federal courts it cites it actually criticism for of a sighting of a state court case but i see nothing that tells me what the state law is on the questions of whether this was a breach of contract in anything else so that i i just don't see we're of a creek meant of a state law claims was failure to pay wages and the state law is clear that where compensation is based not only on your individual contributions but also a team leader but i don't see any citation just a cases honor the briefing identified the cases that a stablish that under new york state looked wage law rely on true love true love is the principal case that and its progeny but true love is the principal case that says where one's potential incentive compensation is based not only on your individual contributions but also the contributions of others then it is not wages that can be sued for under the new york state labor law and that is exactly the plan here relied on both mr clemens and his team's contributions but there is no demolishes by judge crotty about whether or not the court should the principle reason is the plan itself by its terms could have been terminated at will at any time by the company and so where are the plan is terminable at will it does not rise to the level and then if i may i just on the issue on what the court had before it it had mr little miss crane and investigation undertaken by seasoned compliance professionals who interviewed at least six quit messages they reviewed voluminous documentary evidence they issued a fourteen page report which was what about the claim that the n f l is f m focus primarily on what was done by foot and therefore save it discounting was appropriate they focus primarily on what he did and said that was discounted into your now double disk county and then you have this odd fifty percent which suggests that in fact it was a little bit of both and so where was it not full double discounting but some discounting and that from a purely mathematical point of view is probably not the most accurate one the other hand it didn't it is kind of taking into account that it is both is is  can help i think that that question of proration does moody's have the right to pro rate this compensation based on one's absence i think that's answered clearly and straightforwardly by the f m l a regulations itself because those regulations state unequivocally that if a bonus or other payment is based on the achievement of a specified goal such as hours of work or production then payment may be denied or the employers are free to prorate such bonuses are or awards in a non discriminatory manner and that is that what that means is you can't treat f m l a leave different than other types of leave and the record is clear that no matter what type of leave one took the same proration would apply well i'll ask them whe as i want to turn first of all to your question to mr turnbull about whether or not the district court's application of the wrong standard matters here and i think it it absolutely does it was central to this case and what the district court said was that we failed to prove as we might to a jury that mr little had lied to the investigators in order to orchestrate the result he wanted to that investigation it's absolutely essential to this case you honors if  if mr little lied and repeatedly lied on issue after issue after issue in order to support his claims of falsified units that your honor is is itself strong evidence that he's doing that to cover up an improper motive and we know what that improper motive was because he came right out and said it multiple times in the march fourteenth meeting with burden of you don't even have the burden to show that he lied so ultimately your burden is to show the issue of mr with a lying is not one of the circumstantial it's not it is not enough in order to show pretext in vs cases to show that something you you have to have something that indicates for a pretext with respect to re f m l a f m s your family on you and that's exactly what we do here even though it's not our burden at this stage we show that four days after he tells mr clemens i've got a problem with without pain you this much when you're on medical leave and if you show something of that sort then all you need to do is show evidence of it sufficient for a jury  district court said you have to prove it yes or if you have to show something of it and i would submit that we that we did we showed we showed where he said one thing to the investigators and at the deposition he admitted that it was not true and he had no basis for saying so one in fact if you look at it more carefully he doesn't say it because it's not because you took them out lately if we are just it cannot be the case that you are entitled to these contributions given you isn't that two very well those two very different things but i think in this case your honor we on on page twelve of our main brief we show that this is not a case where if you look at mr clemens he's claimed as many units as somebody who worked for twelve months and he only wore ten he claimed proportionately fewer you it's then than the rest of the group who work the full twelve months so this is not a case where he's coming along and saying wait a second how could you get to two hundred forty units when you were when you were out for two months because his units are proportionately lower actually much lower than the others in his group so this that that that potential explanation and by the way your honor it's only a potential explanation for what mr little could have meant when he was referring to being having too many units for being out of medical leave who dress questions of state law and whether this was a contract at will which could breached and whether these were clearly the kind of payments which would not be covered under state law yes your honor and on page twenty six  talk about what i think is the central case and it's a state case state appellate division case of freedmen aronsen office furnishings that's a two thousand and fifteen first first department case in which the first department says the operative issue for determining whether the labor law applies is whether the plan in question creates quote a direct relationship between plaintiff's own performance and the compensation to a cheese and titled that that plainly on discretionary bonus case ok that this was a totally discretionary bonus you know turned on things that were outside of your client's control right it was his productivity plus the productivity of his team it was  formulaic bonus that applied to elements one was what his team generated in records and it was a mandatory bonus it's a non discretionary bonus and so the language of the plan that is this bonus can be changed or amended or altered or  says the payment is discretionary the allocation of the payment is discretionary versus the plan here which says it can be amended or changed during the plan year at the discretion of the company well in this case it wasn't it's undisputed we get to the end of the plan year they have amended terminated or changed the plan bakes in it bakes in now a contractual right to be paid under a formula and that formula is half dependent on mr clemens own productivity that's what that's what meets that that is a court cited federal cases that referred to state cases you're right it did but it but for the reasons i just said i believe that is an incorrect application the wall the only case i believe that the defendants for the on an unpublished decision of this court but in that case your honour's what what this court hung its hat on there in saying there's no contractual right is that the plan explicitly stated quote it does not constitute an express  reasons that we show that he that he lied to support these allegations but i also don't think we have to show that if it's a contractual right then the question is did mr clemens perform the work or didn't perform the work it's not it doesn't require a state of mind by mr little and as your honour's  it's within the court it's certainly within the court's discretion if if if those state law claims are are were not were improperly dismissed and the federal ones were then and i guess there may we may now lack a federal  really a question of what the presumption should be in situations where all the federal claims are out and view only reason the court had jurisdiction