was a little surprised when i saw the description of our case don't know who writes those but in the listing for joint owner so i described this as purely a discrimination case because it isn't solely a discrimination case the cornerstone claim here in fact was as a public employee was deprived of her due process rights in the property interests in her job and the there is certainly the other claims as well and discrimination is certainly one of them now the cornerstone of the summary judgment that was granted was really a finding of fact by the court that number one ms employment began on october th of two thousand and fifteen and not earlier as mission contends nd of all there's this assumption it's not exactly stated as a finding of fact but it's sort of written in the opinion that if she had not if she had not started until october th that she was a probationary employee and that she had no procedural rights whatsoever no rights to claim due process of any kind and both of those things are certainly disputed and i think the nd one is just downright inaccurate because probation employees do have rights under the county's policies and procedures and i think that we presented that quite well to the to the court below and then if i can serve the st of those the  whether her start date was monday october th when she actually showed up in sort of working or the start of the pay period on the rd one why is that a factual question and it seems like one could characterize it as sort of a for purposes of california public employee law when does the one year period begin is that the actual date of performing work or is it the start of the patriot act so why should we be thinking of it as a factual question well actually i think if you want to look at the just the clear cut look at the paperwork look at the paperwork it starts on october three that's when she went on the payroll records as an employee she was paid as a salaried employee starting a locked over three and we have the declarations of the person who's in charge of payroll for the county supporting that proposition saying yes when employees go on the payroll that's when they become an employee that's miss girard we have the auditor controller for the county mr miller with a declaration saying yes when they go on the payroll which was october three not october five as a practical matter they didn't do your question is part of the problem here she didn't you know the day that she  showed up at a particular office was not the date she started work she was a management employee and she was going to be in charge of financial records and monitoring the activities that were going on by vendors and employees at the parks and she began actually on october one by going to a meeting of county commissioners that she was asked by her supervisor to go to and she went to it on october one on october nd rd and th she was reviewing and learning about the finances of the county going over records and so on which she would have to do at some point to get into her job she actually went out or die you basically are arguing that is a factual question i think yes judge miller was saying no probationary period can be all different lengths and as a matter of fact there are different lengths for different employees at the county of monterey and though the start date isn't in any statutory or regulatory provision but if you were to look at something like that that's the counties records it would be the payroll record which shows regulation or there's not a regular regulation exactly i think in the policies it speaks of a twelve month and nine month probationary period but it's my understanding that those you know can be flexible on the different employees have different probationary period her offer letter said that she had a one year probationary period but the offer letter doesn't say what date that starts  when she started talking with her manager he wanted her to start earlier and that is well substantiated by her manager when we took his deposition and also by ms yang and also by mr gibbon and saying that she was actually asked start work earlier than that so no that's not an absolute either and indeed she went on the payroll on october three now if we put to one side the work that she did before getting onto the payroll that is going to work before the  the letters as you have a tentative start date of the th now of course it's as tentative but then in fact she does start work in him in a meaningful understanding or perhaps he will say permissible construction of the wor starting you say that that she actually started for all practical purposes on the th no she actually started for all practical purposes on the st one and she didn't do work on the rd and the four that well given the nature of her job i just not like she was a receptionist or something where she had to be sitting in a particular chair in order to be working and i understand that but you didn't get a tentative start date is on the rd the tendered to start date was clearly indicated as to the tentative date on which you will actually begin showing up in the start the day you actually show up for work now that's putting to one side your argument which i'm not sure what the answer is that she actually did begin work earlier you know them going to the meeting or reviewing the records and she actually was paid starting on the rd when she was a salaried employee and she was being paid beginning on the rd so at the as i sort of said in the beginning at the very least this is a disputed fact the zach you know what do you consider all the things that we're just talking about here are things that a jury would consider in her case when they're deciding whether she had actually worked a full year before  the th of october when she was terminated by the way there's lots of other things that happened that are very inconsistent with her being considered a probationary employee as of october two thousand and sixteen i think number one of course is our whole argument that she was told by an appointing authority who by the way none of the people who were involved in terminating her employment were importing we're appointing authorities for the county of monterey and that is a huge problem with the county's position because it requires their regulations do require that the only people that can terminate someone's employment is an appointing authority and neither ms ellerby who made the initial decision nor mr burton who was the guy who sort of reviewed it thereafter neither of them were appointing authorities and mr gurdon i believe there was a big question about the propriety of his hiring and he got terminated treatment thereafter because of that but in any rate neither of them were people in a position to that but her original supervisor in the person that she worked for from october two thousand and fifteen through july was a fellow who was an appointing authority and he told her that her probation was over with now that's a disputed fact but you know our evidence is that he told her in july you are no longer a probationary employee you've completed your probation he gave her a performance review at that time that said you easily pass probation they checked off the boxes there for your end performance review had she still been considered by the county to be a probationary employee thereafter and to have a twelve month probationary period that continued past july they were supposed to give her an eleven month performance review that's what they would have had to do and didn't tell or else there were any problems with her performance so that she could have a chance to fix them so she would successfully complete her probationary period undisputed that never happened also if she's a probationary employee they're supposed to give her five days advance written notice of her them the intent to terminate her employment business she's called into a room and given oddly enough a performance review and a terminations notice that absolutely no idea from july forward that she was considered to be a probationary employer might be in a probationary status she felt that from july forward it was her understanding that she was no longer a probationary employee and her prior supervisor he was retiring in july which is explained why he did this just before he left and when he after he retired she called him up after she'd been terminated and said wait a minute aren't i still a regular employee and he said yeah you're a regular employee you never went off probation if you were wrong  words your argument seems to be that if you have a firm written policy about who and who is not a probationary ploy that anyone can change them i think an appointing authority could give her an early release from her probationary period and make her a regular employee but if the county of monterey thought she was still a probationary employee why no eleven month review why no five  treated as though she's a pronoun ploy that doesn't change the policy well as a matter of law is it not all employees are probationary for twelve months and so no there is no automatic twelve month probationary period it did say that in her let yes and she was told of the contraband like i said if if one if one was to assume that she was a probation employee then why didn't they do the things that they would have to do with a probationary employee and they didn't do them so you know that's partly our argument that she had a contractual right to assume that she had reasonable expectation of continued employment and could only be terminated if she if they went through the proper disciplinary steps that they're supposed to do in addition to which it's just calls into question whether the county actually considered her to be a regular employee i think this was a hurried last minute decision and i think they knew darn well that she really wasn't a probationary employee anymore you're down to about two minutes do you want to reserve party or you're down to about two minutes to join reserve oh i had already reserved two minutes i thought i we don't separately change the clock when you say have reserve time if the manager just by way of explanation may it please the court crispin at a four different county of monterey i think the and eighty three claim she was an at will probationary employee at the time she was released from or employment on october th two thousand and sixteen and she therefore held no property interest in her position with the county she can't sustain therefore she actually started work on october rd well that's one of the arguments a payroll period in the time that im person starts work are two different things it's apples and oranges you do agree with the position of the plaintiff that whether the one your clock starts running at the beginning of the pay period or on the st day of your actual physical presence but that's a factual question or do you think that's a i've like think it's i think it's an issue of of law i mean that the letter the letter is what is your legal rule that we would look to to to answer that question well i mean i think i think what has to be analyzed is when does the county state this is twelve month period is going to begin and in the letter it says you're going to start work on october th and that's when the county understood that she would begin working and that that was when her twelve month period would start if an individual by working looking on the internet or visiting parks or or visiting a public presentation of the parks district can can can read jigger the start date of a probationary time for a county then the employer would have absolutely no control over the probationary period and i just went into that parade of horribles not in front of us we're going to i'm sorry that the county believed that the last day that they could terminate her was october th two thousand and sixteen based on the letter that said her start date was thousand i think that's your problem it said your start date is x you've got a pretty good case it's tentatively it and she's paid for the two prior days she's not a payroll period we're just trying to sort o i don't see a anything in california law that says the start date is the st they show up for work or the payroll date i just don't see any guidance on that you have any well what they what the county records or what the county rules say is that you want a twelve month time period in the twelve months time period starts you know the st day of work and what it says is that temporary or part time or any work prior to that start date doesn't count as it as an initiation of that twelve month period you know where is the county role that lets us that we cited in our brief and i don't have it to tip the tip of my tongue right now but i can provide because they need to know when they can terminate an employee during the probationary period you are an at will employee you can be terminated for any reason right so that knowledge is extremely important and so if the county puts in a letter to both parties that looks at a letter and at offer letter and sees october th is the start date and then not in till the person's been terminated as she claimed that she in fact worked prior  to october th well she was fired and that jim in the firing apparently just comes out of the blue so of course she would say it afterwards because until she after she was fired is not relevant so the fact that she doesn't make the argument to later is neither here nor there for me well i think she's told in a letter if i'm if i start work and i'm given a letter and that letter says hey your start date is october th two thousand and fifteen and you're on a twelve month probationary period i'm put on notice that i have a twelve month period and that the last day of my twelve month probationary period is october th two thousand and sixteen the letter actually says there is a probationary period of twelve months starting from time of appointment so it doesn't even use the phrase start date so that i mean it does kind of invite the possibility that maybe for purposes of computing the twelve months the time of appointment is something else and i think i think i think time of appointment has to be the time that they start work it cannot be the time when they voluntarily choose to visit a park a couple days prior to october thousand and fifteen which is what the letter says what would plan to his claim exemption is and what's the date of her appointment the point of the appointment has to be that her start date there's no other date that's listed well but wait a minute if her start date that that that is a payroll period that exists for all of you she paid during that st payroll period i don't want to she was paid by weekly or monthly which she paid a full two week period or pay of the full month period she was an exempt salaried employee so which means that she's paid for the for the week the five days that she worked but both of every think that i mean so i think it well it is the paper it is a weekly period or bi weekly i believe it's by week specifically at at the at the pace but what i would say is that when you've got an exempt employee they generally work five days a week this individual started on october th mine day she work five days out st week as she would every week the fact she didn't you know so i don't think you can say let's look at this payroll date which is a payroll date that that applies to every single employee in the county it's what's used by the county two to process their their their their payroll you can't say that one date means that the october th date magically becomes october rd it's two different things if i say to an employee you are starting work on october th and because my payroll period happens to start two days for all the other employees so that when i pay that person it indicates the same thing that a payroll period started before that it does not mean that she started two days before she started on the day that she was told to start which was october th but the problem is i mean this is all official statement defining how this is to be computed and the plaintiff gives us these declarations from the people in the auditor's office that says that though they both say that it runs from the start of the paper and so what what basis do we have for saying as a matter of law the those declarations should be rejected as a matter of law that the county has a twelve month  probationary period the letter that told miss zang when her start date was going to happen said that she started on october th she testified in her deposition that she started on october th she wrote in afterward when she filed a complaint with the oh that her official start date was october th everybody understood that her start date was october th in til she got terminated and she decided that no order to file a lawsuit and that in order to claim that she wasn't in fact a probationary employee she was going to use the fact that the county's countywide payroll period which happens to start on october rd means that she started two days before when that's not the case her letter says that she starts on october  know it sounds as though the county h r people need to rearrange their life a little bit every lawyer knows that if you're trying to file a document on the last day at the end of the day you're risking they might want to start a couple of days earlier they might want to give or her performance or after eleven months i mean your honor i understand what you're saying i truly do i practice employment law and i know what im employees go through and and sometimes it's just not possible we're all human sometimes we wait in the last minute well i was not it was impossible it's just they and they didn't do it i'm not saying it i'm not saying it's it's impossible and also what you're saying is sort of contradictory for example the federal system where you get the paperwork start dates on it doesn't matter what a letter said you know that's that's the that's somewhat h r considers the start date yet and so you're saying it has to be this oh well there's another universe out here where it's that doesn't work so it's all county back for for a trial you know and and i guess i would say that if you're running a county if you're supervisor in a county and you want to determine when twelve month period probationary period ends you're going to look to the offer letter and not offer letter the appointment date is going to say that the person starts on a particular day and that's how you're going to calculate it you're not going to look at what payroll records says you're not going to look at  whether or not she served the internet a couple days before that you're going to look at that offer letter and that makes sense you've got to have something to go to so that people can be consistent about what the last day is if  particular day it means you're you going to stay start on us on a certain day i'm not sure i would say that it's probably a word that that is superb flew us it's doesn't mean that she didn't start on october  october th and in fact that was a communication that she fully understood to be her st day that's why she never asked for compensation for the prior days as she worked that's why when she was terminated she wrote in h initial complaint that her official st day was october th everybody understood until this lawsuit was filed everybody understood that october th two thousand and fifteen were start date and that's important because it is review your argument on hand and i think else in conclusion i would also just briefly say that i think the record is also undisputed that ms daying was terminated for a just a couple of real quick things the issue always was in measure hangs mind that she was assigned by her manager to work prior to october five and he gave her books and records of the count's wasn't glancing around the internet he gave her books and records of the county to work on to learn the know the way that the financial system worked to actual work that as an accountant she was doing and she did it before october five she did it at the request of her manager nd of all this is an important point i think there is one wrinkle that you haven't brought up yet and that is that the county regulations and indeed the practice and this is in the declarations of i believe both girard and miller has taken is that and probably mr timoney as well that the county rules do say an employee's appointment point begins on the st date that they're on the payroll they the payroll begins and that if management in any department wishes to change that in any way they have to get prior written approval from the auditor controllers off e to do that so in other words if they wanted her pay to start on the rd but she doesn't start work until the th they would have had to go to the auditor controllers office to get approval to do that and they didn't do it  as far as this complaint to the c e o complaint saying or start it was the th if you look at the complaint it is based on exactly what i've argued here today that her manager told her to start earlier than that that she was well past one year of actual employment and when you have actual work as assigned by her manager and that's in that same eco complaint the fact that she on one of the lines of the form put down the date that the county was at that juncture saying was her start date is just that she was filling out the form it's not a position that she took she took the position that she'd started well before that she did that in the body of that you know complying there's nothing after acquire after invented about this case