grocery store as a front in manager in october of two thousand to the store underwent some renovations was discovered she became ill along with other employees she started questioning the store about mold and testing  was reprimanded by the store supervisor the store manager rod sure she ultimately follow the workers compensation claim and after these complaints and following that point she was reprimanded for things that had been going on in the store for years and n clock she came to my client and said i forgot i clocked in what do i do why quite became alarmed at teen statements from two other in four days as to what was going on so she could point again to rod sheard the store manager about this she was very concerned because she felt it was illegal she also complained to gina santoli defendant or applebee's district manager right after she complained to genus and totally when she received it which was approximately two weeks after the incident she received a disc this one area written reprimand that said basically you are harassing and intimidating employees if you do this again you will be terminated it's our position that that discipline itself isn't of itself illegal under the fair labor standards  in her declaration stated that she was told by the store manager the reason for that written reprimand was because of the off the coffee incident and her complaint about it she said that in her deposition  also the lower court failed to address that shortly after she went to jena santoli the district manager she was demoted she had her hours cut by twenty hours and she was demoted just to a checker and it's our position that that  motion also violated the anti retaliation provision of the fair labor standards act the lower court thing occur in between the time that she was reprimanded for this and the time t off the clock incident so in between what happened nothing nothing she went to jena santoli that was what happened that's the only thing that happened  this and then right after that she gets demoted which was  d that it was not the company the the the that's not in the record the reprimand only says you're intimidating employees and don't speak negatively about the company it didn't say whether it was the mold or the fire or the off the clock incident but my client on the record does contain my client's ical ration and my client's deposition testimony where he says it was related to the fair labor standards act or the off the clock incident off the clock incident that's what she said she said the when she received the october second reprimand from the store manager he told her this is related to what happened with the ways in and obtaining statements from and if such an inflow kaspar who were also had those are in the records huge she had to make statements or write statements about what happened so very closely on the heels of going to the district manager she's demoted and it's our position that the october second reprimand and the demotion  retaliatory for the off the clock incident and we claim that that is protected under the fair labor standards that the lower court said at least in relation to the fair labor standards act claim that there was no evidence of to sustain that point the lower court what was that direct evidence well to two things one p told my calling on october second when he reprimanded or this relates to the off the clock incident so that's direct evidence right there that the demotion was and then he says if you do it again you're going to get reprimanded thought badly about the company sheet i will readily admit it she admitted in a deposition during a break i think that's key because that seems to be missed here during a break she talked to another employee about her worker's compensation claim and said that her attorney told her she was going to win and it's a slam dunk and she admitted that was false she said my attorney told me have a good case and so mr scherer found out about that in demoted her for that and in that emotion he says i warned you back on october second so now you're being demoted the court ignored the second reprimand but for a reprimand that is clearly in violation of the fairly her standards act she would not have been demoted lower court ignored that direct evidence secondarily there's direct evidence in the testimony of anna sudden in her deposition she was the one who forgot to clock in the store manager pulled her back with an assistant manager into an office and said you could have cost me my job you have created a lot of trouble over this off the calk incident it's my position that that anger are on a break it's a trash talking i guess for lack of better words and he just totally ignored the direct evidence here my position is because there's direct evidence of a retaliatory mindset on the part of mr scherer that we should have been able to told she told the regional manager someone's working off the caught clearly that implicates a fairly were standard tech is somebody is not going to get credited for time work and they're not going to least be paid minimum wage and they not get overtime for that time work so implicate genius in a totally the district manager tells my client these are very serious allegations that you're making against mr scherer the store manager so the defendant rapidly clearly understood that this was these were very serious allegations either not some amorphous from point they were they were they were very concise and dealt with off the clock their labor standards act violations my client thought it was illegal also she said that in or in her declaration the other the other idea that i've set forth in the brief besides the direct evidence is the idea of timing this court in passing tino vs johnson johnson consumer products i think that's a year two thousand case that tiny alone is sufficient to get a case to the jury time and close enough on the heels of protected conduct even in the face of a legitimate nondiscriminatory reason set forth by the defendant can get you to a jury that can prevent a motion for summary judgment the lower court ignored that argument you need been addressed so my position is the october second reprimand within two weeks of the end of the protected conduct that is sufficient to be a violation of fair labor standards act and then the ultimate demotion five weeks after the fact that reference the october second reprimand underpass  the other issue that the defendant makes by the way in god we hunt this court held that you just need a little bit of direct evidence to get a case to the jury in a void summary judgment and i think we presented much more than a little bit the defendant also makes the issue that it was part of her job duties my client didn't add adamantly denies that they have submitted in the record a document that they did not produce pursuit going r c p twenty six they produce that only in their reply brief that shows job duties up front and manager and it's references health health code violations but at a bare minimum there can if you believe that the position they set forth that it's part of her job function and therefore  doesn't have a claim because she's she's required to make the point if you even if you buy into that that we believe presented a fact issue as to whether it really was part of her job function i don't believe this circuit has adopted that rule health he's doing his job and that's protected they're trying to claim that somebody who's doing their job isn't protected i speak from personal experience i spent four years as a corporate lawyer for a publicly traded entity in nevada who has casinos in las vegas  reno i can certainly tell you that there is friction between the human resources department and management on a consistent basis human resources and even the legal department is are we making an argument here based on the record well this is an because they're they have to do this pursuant to their job requirement why are they not protected in macau we act the nuclear inspector was protected because he did that pursuant to his job they're saying that my client was doing was making these two points about the f l s a pursuit to her job as a front in manager where she's in charge of the check in a minimum we've presented of an issue of fact as to whether that was but i think that is a very foolish idea because now everyone in the tits every person in human resources who resides within the tenth circuit which is past this rule has to worry and is my job on the line when i go to management and say hey we're out of compliance here because i'm not protected i can't go to management and so that's why i think it's foolish the public policy toward issue the state of nevada has held that is you cannot discharge in kuwait a violation of public policy to discharge him in retaliation for filing a workers comp no terminations the employee was harassed she was employed there were department stores she was harassed to the point where she quit and the court upheld it which was at that time the largest informant verdict in the state  upheld in beckwith and said that that is sufficient we will recognize that cause of action for constructive discharge but what if the employee doesn't quit and that's the issue here is there really is there a don't quit they don't have a claim if they quit they have a client so the claim depends upon the fortitude of the plaintiff i don't think that is of all and i don't think that's what the nevada supreme court intended in beckwith they found that harassment was actual and they found warning about speaking negatively about the company its officials and october thirtieth when she was demoted and mr ruff that indicated that nothing happened well there was something that was very significant it happened on october twenty sixth right before the demotion occurred and this isn't a spot of testimony about what happened it was this conversation that took place in the break room where she speaks with debbie kuykendall a coworker and here's miss fatah's testimony about what happened  and then you had this conversation with debbie tyson doll did you tell debbie that jenny lee who is the regional director of human resources for smith did you tell debbie that jenny lee lie to you yes question what does that have to do with the mold answer it didn't have to do with the mold it had to do with her lying to me that she acted meaning jenny lee that she accidentally deleted messages that i put on her phone and that's why she didn't call me back does that have something to do with the m know sam had also told me that her attorney was that her sam had also told me her attorney told her that she has won her case did you say that yes is that true well no i was just telling her that is that a lot i pretty much and your tone in your attorney told you that he had your case one answer no so that was a lie yes why did you lie about that because debbie kuykendall was really ticking me off i told her that we had enough evidence to win that we had the case once and what she's talking about here is her worker's compensation case because i knew she was going to run back and tell rod and you wanted her to do that yes ideas so you were using her yes i was do you have a tendency to lie when you're mad no not really that's what prompted you to lie here well yeah that happened four days before she was demoted and she ad on the record that she knew that using that because i can fall in that manipulative and coercive manner was a violation of that warning and she was demoted four days after that that's a very important thing to have happened correct well not not the off the clock the negative speak about the company involved two things involved the mole because he lied to a coworker and said my lawyer said i've got my workers compensation case on the mold one which he admits was a lie in a violation this morning that's the mold and the second one is that she said that the director regional director of human resources miss jenny lee was a liar and the reason she said miss jenny lee was a liar had to do with the fact that that miss spotted said that jenny lee had not gotten some messages that cheryl spotted that she had left on her phone so it doesn't relate to the fair labor standards act it relates to the mol and it happens for days october twenty sixth and the demotion is on october thirtieth now here's what i'd like to do if i may mr rumpus talked about evidence evidence of discriminatory intent i want to back up because i think he has invited this court to cook this appeal in the wrong kettle he has invited you to get bogged down in questions of have a dence and to weigh evidence for the purpose of suggesting that well there's factual disputes on some of this so maybe there's a genuine issue of material facts wrong way to go it's inviting to go that way because judge dawson in an in essence when the case was presented to him to get over the primus facia case elements and went straight to the issue of pretext because there was this tantalizing irresistible slam dunk on the issue a pretext below manslaughter only raised two arguments a pretext she said well the demotion the warning in the motion were pretextual one  because they didn't follow their own internal procedures in demoting her because it wasn't internally reviewed and judge dawson knew that he looked at that looked at that he said well she's offered no evidence of that and the only evidence in the record is that they followed scrupulously those procedures so that pretext is out and the other only other pretext argument that was offered to lho was to say that in addition to not following their procedures that there were warnings and discipline subsequent to the demotion and mr judge dawson quickly said well what happens after the demotion isn't probative to the intent at the time of the demotion those are the only two pretext arguments that were raised they were clearly quickly disposed of and absent a showing  pretexts we had miss bought his own admission that she violated this october second warning by using manipulating and coercing this coworker and so judge dawson said no evidence of pretext we have a valid l and the are legitimate non finding pretexts he saying judge the judge dawson should have looked at my evidence of retaliatory motives because now that i've lost one pretext i want to go to tell it for a motive i want to back up and go to plan the facia case because it doesn't involve any disputed evidence there have been recent developments in the law since this case was brief that speaks to it and allow this court to dispose of this appeal and affirm below on the grounds that  protected activity which is an essential element of our prime aphasia case ok so if i'm if i may have like to like to address that first of all in terms of conceptual construct never look at direct evidence we never even look at indirect evidence and we never even look at a legitimate nondiscriminatory reason now what has happened with the law the law has become more clear since this appeal was a brief by virtue of two decisions within this circuit and a decision by this court at the time that the case was brief there were four decisions that spoke to this the first was the one thousand nine hundred six tenth circuit decision mackenzie versus renneberg in which issued the rule out of the te circuit that when an employee acts within their job duties they're not engaging in protected activity now mr ron has made the argument that they should be the fact that their job requires it should not administer protected activity i think that's completely wrong protected activity is not defined by doing your job it's defined by doing something that a statute protects and there's no statute that says anytime you're doing your job you're protected by statute so mckinsey issues the rule that if you're doing discharg job duty it's not protected activity that's one hundred ninety six second this court sandbank decision in lambert in one thousand nine hundred ninety lambert does not refute that position it decides a very simple and straightforward issue which is is it enough to complain internally as opposed to going to be united states department of labor to make a complaint and lambert decided and i think correctly so that an internal complaint is enough that when someone comes inside the company and says if they say say it with clarity so that it sufficiently clear and they specifically allege of violation of law then it's protected and that was easy in lambert because he had six sales representatives of the seattle supersonics who went to the department of labor found out the seattle supersonics were violating the f l s they came to the controller and said the department of labor has told us that you're violating the statute you owe us money and they had their lawyers send a letter to the seattle supersonics that says the statute is being violated you owe them money until lambert was easy you had a very clear demand for concrete payment and a violation of the statute and what lambert holds is that internal complaint is enough now  just short shortly after let a few years after lambert the first circuit joins with the pants and says you've got to act outside of your job if you're just discharging your job duties that's not protected activity that's the best indic dickinson decision that's where we were when we briefed now fourteen months ago within this circuit at the district court level in the eastern district of washington and this is in our twenty six j supplemental letter of authorities stein versus russo was decided and they looked at lambert and they looked at mckenzie and they looked at back convictions and they said what will the ninth circuit do in cases where you have someone acting inside within their job because that's exactly what happened in stein you had the general manager of a company called hop where hotwire direct who looked out and saw what he thought were violations of the f l s say went to the owner and said you better fix the and suggested that they call region ten of the u s the o l to get information and the owner said don't you dare pick up that phone his words were put the damn phone down and then the g m was fired the next day and that court in predicting what this court would do if you're interested in knowing what the lower courts are thinking what you know they think you'll do gave this this gave now it says mr stein questions whether the first intent circuits interpret the fair labor standards act as broadly as the ninth circuit does in lambert the court carefully reviewed cases from other circuits including the person towns and the court recognize that both the first and tenth circuits probably interpret the f l s say nowhere in lambert did the court suggest that this circuits interpretation of the f l essay is broader than the first in tense to the contrary the court agreed with its sister circuits concerning the proper interpretation saying there is a point at which an employee's concerns and comments are too generalized and informal to constitute complaint it is important to note that the ninth circuit has never held that anything less than a concrete request for compensation that's it a concrete request for compensation is protected in that regard the ninth circuit is like the tenth in some is likely the ninth circuit will follow the lead of the first intent for one thing they interpret the f l s say as broadly as as it does for another thing the ninth circuit has acknowledged that no not all employees statements concerning overtimes are covered no food here you have a retaliation case and that circuit court within the circuit cites mckenzie saying that the employee never crossed the line of being a manager so here's the touchstone under lambert as to the extent lambert is and the lower courts in the circuit have found it to be consistent with mckinsey and convictions and here's what you have to have we know one internal complaint is enough complaint to the extent it exists is internal you have to have a concrete demand for compensation you have to have a clear and specific communications that the law has been violated the law has that there is an illegal  what do we have here in this spot as own affidavit at page one sixty one in the excerpts of record this is what she communicated to the store manager i advised rod the store whose job mr ron did not quite correctly characterized because it page three o two of the record her job description is to observe all store rules and policies and to ensure that hearings to all local state and federal code regulations is not just not a health code and so she has a responsibility if she hears that a direction has been given that's work off the clock to correct it what did she do here she went to rod and she said why did you tell anna to work off the clock and right answers by saying we were correcting a sale to labor ratio by allocating this time to a prior time period this plaintiff never believed that that individual that that third party had not been paid here's what the record says on that particular point which is important this sudden testified did you have any concern that you weren't being paid for the hours worth no did you ever make a complaint about not being paid no that's the individual who was kind whose time was reallocated miss potus testified quote she is sure smith's paid for all our she worked excerpts of record seventy four her deposition when cheryl spotted went to madeline's lunch to tell her about the incident she told her that she knew she had been paid that's record ninety four and on the spot a testified that she knew she'd be paid and she told her to punch in so what she's upset about is that this instruction was given she knows that she's corrected it there's never a demand for compensation there's no never a statement of illegality and she is clearly acting within what her job requires her to do ten years before this line of cases involved involves very unique circumstances peculiar to the nucular energy regulatory commission because metallic said quote every action by a quality control inspector occurs in an proceeding because of their duty to enforce any r c regulations will front and managers at grocery stores do not have a duty to enforce the fair labor standards act as deputized officials of the united states department of labor and want to run any manager goes to a store and says hey i think this practice might be questionable we might want to fix it they're not acting in the us deal well proceeding so macau wickets is clearly in offices additionally the statement a violation of law has to be clear that comes from a decision three months ago in hard with vs complete skycap services where a plaintiff again has alleged violations the fair labor standards act and the court said in order for appellant complaints to be protected under the f l of say the complaints must be specifically concern f l s a violations and must be directly communicated to the employer citing lambert and again that's in our twenty six j letter why is this important because if she didn't gauge and protected activity everything mr romps talked about during his time is irrelevant there's no motive question there's no issue of quickly to the public policy tortious discharge question and let me just before i leave that ad that the issue of causation also is a prime  respect to that issue miss patty admitted that she violated that warning on october twenty sixth when she spoke today because i can tell so her own testimony shows that the issue of causation could not be met which is also a crime to face a case element public policy wrongful discharge beckwith was a constructive discharge case this is not mr data testified in the record that her employment had never been terminated she was currently employed at the time the case  decided in the briefing mr romps goes to the bearden united states district court of combat a decision saying that the policy implicit in tortious discharge comes from the worker's compensation statute itself and relates to any device that has the impact of modifying or altering the impact of that statute that case specifically supports the critical distinction between someone who has been terminated either in voluntarily or constructively and someone who's been demoted but still has their job for this simple reason somebody has been demoted and still has their job still has workers compensation insurance and so the policy of that day definitely supports the critical distinction that judge dawson made and that with me as a constructive discharge case because they keep their workers compensation insurance and we've cited in the briefs several decisions  emphasizing that a federal court should not exercise to refine the contours of state law and that that public policy wrongful discharge law and of that it's very narrowly defined the complaint does not a ege and there is no argument that it's thought of was constructively discharged from her position in addition even if the court order recognized that there's another employee madeline's alliance who engaged in the exact same protected activity filed a worker's compensation claim based on mold complained in her words vocally and loudly to everyone in the store about the mold and testified in the record and her testimony in the record on this point is i believe that page eighty four that she had never been demoted discharged she had only received promotions and raises throughout her employment my time is up in reply i think it's important to note what i said in my opening which is this conversation was on a break if you look at excerpts of record one twenty one which is the october second reprimand it says that if you if you talk to employees negatively towards them it's that causes intimidation coersion or undermine the smiths in any way while they or you are on the clock they are you are on the clock my client was on a bright so he violated his own october second reprimand by by demoting her for something that happened when she was on a break he can talk about mandated by state law like in california nevada and similar to our laws in california you ask what was discussed what was discussed was a worker's coupling she was talking about what her lawyer told her about the worker comp claim she said that jenny lee had lied to her she'd been trying to get hold of jeannie lead to talk about the clock in the worker's comp claim on exposure with it yes and it's actually still ongoing there's a hearing on monday i think back with certainly indicates they would go that way because she quit but my coin didn't so my coin has a more fortitude and she she can withstand the harassment back with good what do you have i also as you know certain benefits well i want to would like to address that there was an implication by opposing counsel that if you if you terminated you don't have worker's comp benefits that's not right in nevada if you're terminated you still have worker's comp clear whether whether she pass and teano the this court said timing alone even in the face of other reasons set forth by the employer that insufficient the other cases that they cite the eastern district california case where else in practice that dealt with a very specific california statute and not a not a federal statute they talked about stepping outside of your duties what does it take to step to take a position contrary to your duties we cited h p e e o c versus h p eaton eight circuit case a requirement of stepping outside a normal role is so even if you adopt their position my point this is satisfied by showing that the employee took some action against a district minatory policy this placed him outside the normal managerial role which is before the company policy that's what my client did so even if you drop adopted that within the position my coin