it's important to first take a look at the position that the both the district court and the the defense focused on and that was specifically with the issue of scott rosen being the individual who initiated the first investigation as a result of the member complaints i will submit to the court that even with that fact it doesn't change anything as far as the retaliatory paus case and here's why that's because prior to that member complaint being made which was around december of two thousand and fourteen as early as january of two thousand and fourteen misc has foreign had raised the very same concerns to several individuals including two jack get it so why is that relevant that's relevant because when the member complaint was finally made and when the initial investigation with the excel spreadsheet was conducted revealing that these case farai previously and nothing was done about it so what happens well besides those individuals that miss caspari had complained about either being terminated or having resigned as a result of this the  mr gannon specifically targeted and requested that mr berger who was the last prevention individual who was conducting the interviews specifically request them discuss fahri interview about these issues so what's the big deal about that why d that even show causation the reason why the show is causing issues because first of all there's a contradiction between what mr gannon purports to have happened with that directive in which he denies that he did that versus what mr berger  mr berger testified as to in saying that it was mr gannon who directed him to do that ok well now we have an inconsistency again what's the big deal the big deal here is that the testimony also revealed that there was an agreement that these employees who would be interviewed would be suspended after the interview and the reason why there potentially is pretext now and issue of causation that would be nice allow a trier of fact find that is because the evidence shows and this was specifically through mr dan his declaration that he prepared a meet a final paycheck from his case farai before the interview occurred so why prepare a final paycheck before the interview to occur when there is supposedly an agreement that these these employees would be suspended after the interview if not for the fact that well he really did want to retaliate against her he wanted to get rid of her because  cleaning at the west l a location i think at least is disputed enough for a trier of fact to make the determination oh ok well maybe it didn't make any sense for this and they this new m a specifically be held at the west l vocation and i also think that we're not i think the issue here is regarding the other and they in this case barton who were suspended it's sort of an apples oranges comparison in other words they're not similarly situated because the evidence shows that the other and and this is important because the investigation itself revealed that the there was the cannot substantiate the allegations against her so of course mr gannon cannot fire her despite having a final page it repaired despite the prior agreement that these employees  suspended because the evidence cannot be substantiated that she actually did engage in this fraud so that i would i would submit your honor that that that that that disputed issue that area will at least allow or try are facts  make the decision that ok well this is something that's just that it does seem like they targeted her she wasn't supposed similarities to it situated to the other employees and there was a other and they who got the benefit despite being president standard that the defense has applied as well as the district court has applied regarding the issue of causation retaliation and that standard is a but poor standard and the case that the the defense and the court read on the issue of retaliation is it's a substantial motivating factor that is a determination of causation not a but for factor it was flourishing to the  two point six of the labor code which is the affirmative the fence for eleven two point five so here not only did the district court apply the rock standard but the defense argued the wrong standard is as as it relates to causation for the retaliation level two point five clearly taking that all as a whole based on the contradictory testimony with mr gannon and mr berger as well as the inconsistency in application as to her being transferred a trier of fact it could definitely find that this is a situation in which we tally was at play and we would submit your honor that the again this is an issue of judgment and adjudication and the tried the disputed facts are certainly something that are supposed to be construed against the moving party in which is in which this instance with the with the trial court it was not i think i have some time left obvious serve the rest of me ask you a question and reading the briefs and the factual recitations i'm thinking to myself there are going to be a claim for constructive discharge here but your blue brief page twenty six i think you say you never made a claim of constructive discharge and you're not pursuing a claim of constructiveness church it's if it's a good issue of regarding nomenclature or semantics because we did allege in our complaint several times constructed herman a shit and being forced to resign i think counsel's position on that is that while there isn't a specific claim for constructs rumination the issue of construct a term nation isn't that it's a claim it's a theory of an adverse employment action in which there are many here including the demotion or as we are is the county council calls the transfer but the adverse employment action is just the form i'm sorry the constructive determination is just a form of the adverse employment that issue i think that the the conduct that would be can be sued is outrageous and the fact that she specifically complained about illegality that she thought would be addressed and that that in turn was turned around and used against her by the by the company to to then put subject her to an adverse and pointed action that would be the evidence jon it wouldn't be anything in terms of extreme or outrageous comments although there were comments that we would submit that the comments are are more to the issue of animus and retaliatory intent then something that would be construed as outrageous regardless of what standard applies whether it's a contributing factor or a but for cause which you know there are different standards depending on which claims we're talking about in this record but regardless of that the if you look at what mr gannon said mr gannon was the decision maker here and what he said was miscarrying testified that she heard second or third hand that he called her crazy maybe not nice especially in a person of his position with the company but it doesn't events a retaliatory motive it's not connected in any way to her activities on the other thing he called her with amy winehouse and while the district court turned into an issue i have a play on whether that means she is a whiner ms has varying herself testified that she understood it to mean a derogatory term because ms winehouse was you know she died from a drug overdose and she was a drug addict how that relates to any of the issues in this case i don't know mr gannon on the other hand he testified he admitted he said that because she had hair similar to ms winehouse they had the same kind of hairstyle but no one testified it had anything to do with whining that was something the district court after she made that first complaint wasn't she confronted by a number of the people that said she's a tattletale she was warned that she might ruin her ability to make a lot of money that her complaints were too aggressive and that you shouldn't do it that she should leave if she didn't want to see such practices that she should only worry about those things that she can control or mr gannon apparently at least from her perception ignored her isn't that all set things up for what actually happened then a year later now because you have to look at the context who said what who allegedly said what so the decision maker is  well she my point there is that she can't be a person who's in gauging in retaliation she's not the why and who participated with mr gannon in the decisions to interviews and ultimately makes the recommendations of what he found he didn't know ms cuz varying didn't know she complained this was the first time he ever interacted with her tracy quba is the person who did the first part of the investigation with mr stan five and they're the ones who conducted the audit that found anomalies in the billing practices and neither one of them are alleged to have said anything inappropriate in any way and critically misc has varying doesn't challenge their findings she doesn't say oh yeah their findings are and correct it that's that's not disputed they made these findings those aren't challenge to mr berger conducted interviews based on those findings and then when you look at who's who who's involved here there were four membership advisors when the whole thing started in december the first one who was the one who actually  the conduct that the member was complaining about terminated right away so then you're down to three by the time that mr berger is interviewing everyone one of them is the new guy who wasn't at all implicated in any of the not that she was innocent but there wasn't enough proof that she was guilty of anything she was transferred the other one and the other and may who was also suspended he was fired now there was a reference here that he was also transferred he was fired who's right she was she was transferred where the others were fired you know but it's one thing to say yes she was transferred it was a lateral position except we were paying her nineteen dollars an hour now we're going to pay or nine dollars an hour and maybe she'll quit i see what you're saying and i'm not trying to argue that you know she's she viewed that as a demotion and at the summary judgment stage we don't challenge that opinion of hers but what it is telling is that you have to look at so mr gannon is supposedly has a retaliatory motive he's the one that's making all these decisions her complain were a year ago a year ago she made these complaints and when it comes time to deciding what to do with with what the investigators found he doesn't take the opportunity to fire her like the other two with two other people were fired he could have easily fired her if he had a retaliatory motive instead he tra or that's not true there was there was evidence just not enough to warrant terminations and these individuals so how does a fit with your argument they were suspicious of her and didn't her round but they didn't have enough to fire her so they figured ok let's send her down to san diego and pay or have less than half of what she's been paid well they didn't send her to stand here you know the center to marina del rey which is also a very nice club and not far from where she was already working in west l a and mr gannon wasn't getting rid of her by transferring her he's in charge of the whole west coast so if he had this breath retaliatory and for making a complaint twelve months beforehand that's an odd way of showing your retaliatory motive by transferring the person to another club and not because i don't think i should have to do that the summary judgment standard is to prevent me of less trials and what a reasonable fact finder has to show here are whatever reason all fact finder would need to  find is that either the entire investigation was concocted and was just a mechanism to get rid of miscast here and she's only a complaint none of her peers did or our investigation was legitimate garrett is going to use it a way as a way to transfer her to a club that he sticks still oversees and i just don't see the that see how reason or fact finder can call that retaliation for saying you know someone's credit card was used a year ago this was her complaint and it's just why when mr gannon care about that to harbor retaliatory animists it just doesn't make sense  only thing that could arguably be considered protected activity the year before hand then there's a member complaint so the investigation is started independently independent of misc has baron or anything she does to people who aren't alleged to have done anything against ms has perry and conduct an audit have these findings showing anomalies and not just her sales but to other people sales one is immediately fired then they bring in another person who has no contact with mr has very and doesn't even know or before this investigation flies out from new york to do these interviews interviews five people and decides ok here's what's happened here and then they make some personnel decisions and ms has various and the only person who is not who didn't receive anything was someone who was new and that person wasn't suspended or transferred or terminated because he was new everyone else involved was moved out of the club and the legitimate business reason that was offered was that they wanted to start against the plaintiffs claim because aren't we supposed to look at the facts and interpret them most favorably or draw the inference is that favor her when it comes to summary judgment right and so when you when you look at it and she complains about something in january twenty fourth teen mr gannon is really upset by this that she would you know make this complaint nothing happens for a year someone else complains independently there's an investigation and she's implicated in some fashion not the same as everyone else and so he's been sitting on this for a year and uses this as an excuse to retaliate against her it's far fetched that's the most reasonable but her implication had nothing to do with charges on credit cards right it had to do with nine separate instances where there were  sales made without eight of them without credit card charges and they cancelled within two days and one of them was on a track good balanced but that has nothing to do with the complain about other people using credit cards in a non authorized method fashion or her complaining it's not even clear what are completely well which she says her complaint was is that the person in the office next door to her she overheard that she was telling the person here you pay for a mind and then your friend gets a gift card and she doesn't know and she made an assumption that this person is being sold a year membership and not knowing that it's a year membership thinking that they're buying a month membership that she when she was asked you know if the person was charged for more than a month she says i don't now so i mean what i am not even sure that that's protected activity we don't raise that you know at this stage but it's it's then at best our thank you very much counsel thank  you just to address the issue regarding the timing of the complaint i think that's sort of a red herring argument here because although she did begin her complaints in early two thousand and fourteen as i indicated earlier it did not come to a head until the member a member separately complained to mr rosen in which now the issue is it should becomes implicated on mr gannon who was the recipient of these complaints before and failed to take any action as a result and the issue whether or not mr ghanem well it was asked and why would he have a retaliatory motive that is retaliatory motive he was aware of these complaints before he didn't do anything about it and then once the investigation indicated that oh well this actually was happening at a club that he was in charge of he had to take action and unfortunately for my client he took retaliatory action and to address the issue of pretext that council have raised there  evidence a pretext here that will allow a trier of fact to find that this this this adverse employment action whether we're talking about the contract term nation or the transfer or demotion however you want to call it is something that was motivated by  retaliation she was of obviously as well performing employee don't think that's disputed whatsoever you have the inconsistency as i discussed earlier regarding the investigation the application of who should be transferred or suspended and who is it you have the issue regarding the fact that while there were several individuals interviewed the assistant general manager simonson and the three and mates who we've talked about well there's no evidence that the others whether these this in general manager or simonson who are also responsible for this team were in any way suspended or transferred to support this fresh start that is the defendant's position to justify  rejected that doctrine and specifically stated that comments made whether or not by decision makers are not just it's this issue makers whether or not in the context of a termination decision or not internation decision are all relevant inappropriate making this an issue for a trier of fact to determine the weight of the comments that are being made that's exactly what we have here your honor and i submit again that the evidence here at least on summary judgment standard