for whatever you're ready good morning me please the court i'm going to try and reserve one or two minutes for rebuttal the district court erred in this you state your appearance for his views yes minow goodman on behalf of appellant and garcia court erred in holding that title seven's religious organization exemption is a statutory is a jurisdiction provision that cannot be waived it is not in the in the salvation army hear way of the defense the supreme court  adopted bright line rule a provision is jurisdictional only of congress clearly states that it is that it is this court in leeson further identify three factors to guide that inquiry first is did congress clearly finding that the title seven's exemption is non jurisdictional that's important in this case because contrary to what the district court held it means that the exemption can be waived here the salvation army waive the defense by failing to reason and in its pleading operative operative rule and we've gone although i would know and i do we do think we are prejudice but before getting those points i would just say that in regard to the court actually reversed on waiver grounds because the district court failed to conduct any inquiry into whether or not it was prejudicial so the but as far as i could see you weren't prejudiced so we think there are two grounds for in which two ways in which mr c was prejudiced the first that she was denied the ability to take discovery well at this covering what  testify and in a way that clearly indicated that that they did that this really was a religious society organization and use that whatever term you want yes your honor so as the first part of your question we think the discovery would have taken would have been an inquiry into how the salvation army generates revenue but that's all there but that i thought that's all a public record our position is that even on the very limited evidence to record that this court has before it which as you note is all public documents we think there's enough there that that you could find a genuine dispute a fact under spencer that precludes summary judgment however we think the record could be much stronger and in fact should be much stronger had the district court permitted mr c is request to take the limited discovery on this precise issue and the sorts of the things we would have sought discovery on was how exactly does the whether or not an organization engages primarily or substantially in the sale of goods to the public but it's also consistent with the concurring opinions by judge client judges kleinfeld and judge of scanlan where the very debate between them is on this question it's not on whether or not an organization holds itself out on as a religious that's relevant but it's not dispositive what's really necessary is a limited inquiry into how an organization generates revenue in in the spencer case they concluded that well world world vision which was the organization at issue there that it doesn't sell anything to the public and therefore that it's it's it can be you can claim the seven o two exemption so you our argument is that the the plane letter of the rule established by this court and spencer in the per curiam opinion is a four factor is it provides an analytical framework for this court to guide its determination on whether an organization is covered part of that framework is an inquiry into how an organization funds itself and where there is a case as here or as on the limited ever evidentiary record appears to be the case here you have an organization that sells goods in substantial volumes to the public an inquiry needs to be made into that to make this determination that didn't happen in this case the district court didn't even rents reference spencer it didn't engage in any of the factual inquiry into the relevant spencer  facts and to type back to judge corman's initial question that was prejudicial mr c a because she was left defending herself at the summary judgment stage without any of that information all she had was was the public record  i do want to spend a little bit of time would you object to remain of the term and whether or not there was a waiver that waiver should be discovery we would not we would not object to that to a rematch and with i suppose a i think you're in visioning maybe a limited instruction right to conduct some limited amount of discovery on particularly this issue we would not object to that again i will say that we do make the affirmative argument that there is enough in the record as is just based on the public documents you referenced earlier to show that there is a genuine dispute of material facts under the spencer if the punishment for delaying to raise the cost of delaying to raise a defense is two years into the litigation the court issues an order that now there is some limited discovery i think you do create risk creating a situation where an organization which has  incentive not to raise it in the pleadings instead to wait until the summary judgment stage and then raise it their work the incentive i mean the judge could have if the judge could have reopen guess it's broader so in an improper way i understand the word waiver in its technical sense to be knowing in the liber of relinquishment of a right i don't see that that happened here i think what happened here was a procedural forfeiture and very simply not raise it and it's a problem that comes up all the time of the competence of lawyers know i'm not sure that this was a strategic decision and i don't know whether you would suggest that this was a strategic decision i'm not sure if i would and i think it's a question better directed at the salvation army as counsel i think as i agree with you that this is probably more accurately conceived of as a for forfeiture potentially although we adopted the language that the district court itself used in discussing this question of waiver i know but that those those two the one of the other arguments that we have that we think warrants reversal and this is in the event that you don't find that your argument was waived which is that we did our position is that the religious organization exemption in title seven does not protect against claims for retal  and hostile work environment like those that issue in this case and there's a few grounds for that first this court's decision in pacific press and that's at six seventy six f second twelve seventy two  held that the legislative history of the exemption makes clear that it does not cover or protect against claims for retaliation we think that's consistent with the text and structure of title seven and the religious organization exemption the supreme court in  well i mean isn't it how do you even get past the first five or so words of the provision this subchapter entirety shall not apply that encompasses retaliation claims and so we think that language  by the rest of the phrase with respect to an individual of a particular religion right and dry so so our view is if you look at the clause so that the language you read is is is limited or constrained by those subsequent clauses one of those clauses is of a particular religion and we think that clearly limits the scope of the exemption at a minimum to status based claims which are which which are set forth in a separate statutory provision altogether from the retaliation claims ok remind me what's the basis for the retaliation claim here so the basis for the retaliation claim is that she filed she engaged in protected activity which was what she followed july nineteenth written grievance to the salvation army complaining of religious discrimination that was on july nineteenth two thousand and thirteen ten days later she began suffering adverse consequences i guess that's where i'm just trying to get this straight so the if the salvation army is a religious organization it could certainly say to your client that you don't want to tender our church you're out and there would be no he could be demoted could be right demoted well like well you you've had a position in which you have to interact with the public and we only want people who have that kind of public exposure who are sort of true believers we're going to you know transition you off to this lower paying job that takes you out of that it seems to me that would have to be ok if if the if they're covered by the exemption right i welcome the opportunity to clarify this point so our position is that the exemption if it applies to an organization enables that organization to hire or fire an employee as you say so in that circumstance where you have an employee who may be sharing your religion when it was a coreligionist when you hired him or her but subsequently left the original religion that were the organization could hire could fire that person we don't challenge that o n the other end of the spectrum which is the which is what we think this case is we don't think that organ that same organization could could verbal harass or verbal abuse that same individual to the point of say amount to something about so like a constructive discharge that's the hostile work environment claim now there's a whole area of conduct in the middle that isn't actually directly at issue in this case so we don't think the court necessarily has to reach a position on it we think the better the better read of the text and structure is that that conduct is not protected but again you don't have to reach it here in our position and i think this goes to both the hype this actually relates to the hypothetical the salvation army puts in its brief a lot of the conduct it is saying sort of the parade of horribles that would happen from adopting our construction of the statue is actually not our position we're not committed to that it's really just one conduct rises to the level of a hostile work environment claim where it's severe and pervasive that it becomes a you if you harass them to the point of stating a hostile work environment claim that's not permitted and we think that's that's actually sensible you know if they're actually going to do that if they could just find some way for a room i don't know resist that characterization of it we think she stated a viable retaliation and hostile work environment claim so what's the answer to the hypothetical i posed where i had the organization to most of the person to a position where they don't have any interaction with the public so i  that in the text of the statute so i'm trying to just gauge like where where do you get that from so we get that from from two places so referring back to the text of the statute we think that of the particular religion calls out just those status based offenses then the question becomes is it the entirety of the status based offenses or some subset there of my hypothetical the sole basis for the demotion is you have stopped attending our church and we only want true believers to have interactions with the public you have to say that that is permissible i just don't see what your basis for resisting that is  we don't think we we will concede we will concede that i will we will concede that here but we don't think that undermines or weakens our argument as to this case in any way ok why don't we hear from the upon your part and we will give you a couple  minutes for about oh thank you very much ok with counsel for the salvation army would come for great please the court sean all on behalf of the salvation army we believe that judge campbell in granting summary judgment for the salvation army reached the correct conclusion you need to speak up raise your yes reached the correct conclusion that the seven zero two exemption the religious organization exemption was a non it was a jurisdictional non waive a ball exemption for religious organizations and it's there's several bases for doing that and i can go through those for you first the section by its plain language as you pointed out applies to religious discrimination and applies to all aspects of religious discrimination and employment by religious employers this this provision i'm just looking at the it says nothing about sure stiction nothing about the power of the court to decide a case which is basically says the plant doesn't have a cause of action in this set of circumstances when read in conjunction with the jurisdictional provision of title seven and the subchapter which is at two thousand and five f three it says that the district courts of the united states shall have jurisdiction are for actions brought under this cloud chapter this particular provision under section seven zero two specifically says it's this subchapter shall not apply to an employer or to religious organization exempt religious organizations from this job chapter there cannot be a cause of action brought under this subject or because of this section and seven o two further when the supreme court has sought to amend the jurisdiction of title seven that to do with it so when they sought to explain congress sought to expand the jurisdiction of title seven the section that they amended with section seven zero two to effectuate that purpose you object to remain and we do  there's no purpose for it if the you know if he'll purpose for it if you prevail on your last argument well if we were to disagree with you and say that it's not yours directional and that it is waive a bill but you could excuse the waiver of procedural forfeiture more accurately if prejudices show how are you hurt you still object we still do object and so there are several hurdles that ms garcia would have to overcome for a man to be proper first the court would have to find that this is a non jurisdictional just  that assuming we were to disagree with your argument and then we get to the waiver argument that you raised earlier and the specific issue then raised the waiver argument they raise and i suggested that there was a way around it if you were not if they were not prejudiced and in your adversary said well we would need and i asked them how when he said well we would need a little bit more of this coverage judge campbell correctly found that would be futile to consider any type of additional discovery because the admissions in the papers and the admissions in the briefing in the missions in the summary judgment motion and and the depositions all indicate that this is clearly a religious organization but she was never allowed any discovery on that subject right so how could i don't see how there could be a few determination i don't even remember that determination in the first place she wasn't allowed any discovery on whether they had the full ability to conduct any discovery that she let the litigation proceed for two years and then you say your honor we've been wasting your time for two years sorry to bother you but actually you don't have jurisdiction come on nobody does that there were other claims in the lawsuit there was an intentional infliction of emotional distress claim there was an act and americans with disabilities act  only to just hiring and firing actions but applies to all actions again the plain language of the the statute says that it's supported by the cases that have interpreted rule seven o two the kennedy case out of the fourth circuit out of the southern district of new york the case out of the district of iowa those all of found that the seven o two exemption applies to all aspects of employment that is further echoed by the amos case directed by him in the supreme court in which they were talking about the constitutionality of seven o two and to quote the amos court they said quote congress acted with a legitimate purpose in expanding the section seven zero two exemption to cover all activities of religious employers i don't think there's any doubt that we can't parse out of a tally claim or a hostile work environment claim or some other type of claim when we have such broad language not only in the statute itself but the courts interpret the statute including the supreme court's interpretation of that statute homely with the retaliation claim because that seems to be the from the p of standpoint the strongest right i'm with you on the certainly the demotion prim i just think that's definitely you're ok there but retaliation could help me fit within the language of the the statute here well in the opening brief the news garcia seemed to distance herself from the fact that the retaliation was based upon her complaints of religious discrimination she's come back now to that and said that it is based on her complaints about religious discrimination in the workplace and because of that she was retaliated against section seven zero two says this chapter this there's an exemption for anything under this subchapter seven o three which is the status basis talks about and then seven o four which is the retaliation based discrimination as well well i mean your opponent focuses on the language employment of individuals of a particular religion right and says that retaliation claim is kind a it's a different species altogether it's not just saying to someone in lust you're going to you know you're not a member of this religion so therefore you can't do this kind of work at some other kind of of wrong and if this were a case like pacific press where it was a retaliation claim based on her complaint about gender discrimination that would be a viable claim if it was a claim about disability discrimination retaliation based on disabilities commission that may be a valuable claim but when are when the retaliation claim is based on religion it implicates those constitutional provisions that congress sought to protect religious organizations from having to answer in the section of seven o two exemption ok your your view is that as long as the person's protected activity is grounded in a complain about religious discrimination then the employer is free basically has a free pass to do whatever it wants to the employee in retaliation for that that's what the text of the the exemption and the supreme court analysis would indicate yes claim we think that judge campbell also correctly reached the merits and dismissed that claim ms garcia refused to return back to work she demanded that she wanted to see a customer complaint about her we summarize that for her gave it to her and without any doctor's recommendation a doctor's note or a doctor's authorization she still refused to come to work we gave our personal leave absence for several months from january until i think june and then at the final end in july when she didn't return we terminated her employment ok thank you counsel thank you let's give counsel for plaintiff two minutes for  thank you your honors i'll keep this pretty short just a few points on the retaliation point we think the supreme court's decision in nasr is very clear that retaliate in title seven claims are conduct based offenses and if you think about it you know someone who merely is a participant or a witness in any ongoing investigation that does not even share the protected status could be could file a retaliation claim so it simply doesn't make sense to think of these as status based court reversed and remanded with instructions for a limited discovery and third on the a claim i would just highlight again which you know generally rest on the briefing but otherwise i just want to be clear there were two reasonable combinations that were at issue here it wasn't just asking for a summary and then a copy of the complaint in january of twenty fourteen february of two thousand and fourteen in may of twenty fourteen wrote to the salvation army and said i can't go back to a workplace w that one and at that point doesn't she either have to come back to work or so before face termination i think the i think the district court and the salvation army over reads that may fifth two thousand and fourteen doctors know that for two reasons one a few days before she got that note the salvation army was putting pressure on her that saying if you don't come back to work we're going to terminate you so she felt like this was somewhat coercive and got the note and presented it second we think they're over reading it the note said that mr c is current medical condition the symptoms there of had alleviated enough so that she could return to work what it didn't mean that she could go back to a hostile work environment and have her medical condition not be triggered again and that's the accommodation she says she sought and what's all the more striking is that freshman refresh my recollection earlier whether from the doctor actually referred to the conditions that she was working  recollection i can't recall offhand your honor i'd have to go back and look at the record unless you have further questions you've exceeded your time we appreciate your argument and i can't tell me how to pronounce your last name again goodman mr goodman we thank you for the court let me thank you and your firm for being willing to take on this case i assume you took it on through a pro bono referral from our court yes yes i did very very grateful for the assistance so that you provide in this case thank you very much the case just argu