a good morning ma'am please the court i would like to reserve five minutes for rebuttal or won't thank you the district court committed three errors when it held st that ms mckinnon did not engage in protected activity under the fair labor standards act when applying had it st a stepping stone this court's decision a jury could reasonably conclude that she did nd it erred when it how'd that trial i'd like to st address the st assignment of air the district court erred by determining as a matter of law that ms mackinnon to not engage project activity under the f s a when she persisted in advocating for the rights of a specific employee to receive overtime pay for the time that she had worked and against the advice of her manager at hughes her superior of abstracting wage and hour laws the parties agree that this court's decision and pettitte versus steppingstone controls the language and pad it indicates that to be considered protected activity an assertion of f l s a rights will normally be specific to an employee and will usually be made in the interests of that employ thus may be adverse to the employer's interests the problem i have with that claim it isn't isn't that part of her her job f l say and because it's part of her job duties l s a study there were recommendations made to the company those things are within her normal course of duties where she stepped outside of your her role your order is starting in december of two thousand and fourteen when she sent an email to her boss's boss his name is jeff miller in which she complained about her superior lou park obstructing the f s a insisting that his administrative assistant remain exempt here but that's all internal that's all within the company i mean she doesn't reported outside the company she's she's still within the company doing their processes maybe it's a little long usual to go to her boss's boss but that's still the chain of command isn't me well there in terms of the chain of command her own manager recommended that she actually go to someone else about this issue to someone in human resources about this issue in your honor in terms of going outside of the company she didn't go outside of the company if she did that i would agree that it's protected activity but when you know all of its internal and really the subject of her job i mean what makes a protected here that it's extraordinary activity within the company or what what made it makes a protective when it otherwise would not be yes your honor i think in in general well st of all when you when you look to pet it pet it does not indicate that the employee has to go outside of the company and that is consistent with the case law on not only the f l s a but in other protected activities the employee does not have to go for example to the e e o c or to the department of labor in order for it to be protected however in this case it is unusual for an h r manager to not just take the word of her superior who indicates you know i'd like to re word my administrative assistants job responsibilities such that the company could argue that she is classified correctly in this case ms mackinnon specifically went out it went outside of her role in stuck her neck out so that this particular employee can not only be classified correctly but could be paid the forty five thousand dollars that she was owed for the time that she had worked over the prior years and in the interest of the company a the appropriate amount of time you're entity to enforce something against your company that's one thing but when you are within the company and you're trying to make sure that they come to the right decision it doesn't matter but it's what stocks they invest in if you're the advisor with respect to stocks or which person you pay this amount with respect to other legal obligations that's trying to keep the company in the company's interest in compliance with with with the law certainly there is a component to make sure that the company is your in that case your honor what i would like to point to is the testimony of the person she went to complain to jeff miller who indicated that at this time when ms mckinnon raised these concerns raised these concerns about individual who would have to authorize the payment and ms mckinnon in after this december two thousand and fourteen phone call and then e mail followed up in february this particular employee had still not been paid as  february of two thousand and fifteen even though the f l s a study had been completed for seven hundred and eighty nine months and again she went back to mr miller she went back to mr park and said this employee is owed the forty five thousand dollars seem to be taking the position that it's the company's interest to pay the least amount of money but i think actually it's the company's interest to follow their legal obligations whether they have to pay more money or not and i see her as just advocating that the company has legal obligations here i think you should follow the rules and that may cost you more money but it's still still in the company's interest that well i think i think your honor in terms of being able to look at it in both ways you know potentially that's an issue for a jury because the defendant does argue that for example some of the communications between her and lou park were some of the communications between her and jeff miller can be interpreted in different ways in terms of the company not looking at it as at st for example but in this case i think you know your and advise them what their obligations are whether it costs money or not what are our obligations and they they tell them to give me a fair your fair judgment on this right i mean even if  and i can see why she's not doing that that's what i mean that's what i think she's doing and that's what she says she's doing and then how does that make a protective when that's that's our job i think your honor in terms i think that like i said that the activity that occurred prior to december of two thousand and fourteen is very consistent with your rendition of you know what she was doing and how the advice piece of it  mckinnon was not going to her boss's boss jeff miller to give him advice she was going to him to say mr park is obstructing this this woman needs to be paid she's owed forty five thousand dollars and i'm insisting that you pay her and in february of two thousand and fifteen when she stood when ms neal the woman in question had still not been paid she again went back to them and said i am not going to be held legally liable for this and so i think when you take those into consideration that's where it shows that she was stepping outside of her role as an h r manager and all three would like this court group in the short remaining time you could address the gender this case was e mail this is a memorialization of our may th call and in that e mail she says that she was complaining of harassment and bullying on account of her gender that by by ignoring that part of the email or race things based on this combination based on gender so it's kind of well i think your your honor in terms of the particular e mail and that language neither the defendant contested that that language was protected activity and nor the court and the court also held that that language could be interpreted by a jury as protected activity but what the court did instead is it ignored the piece of that e mail indicating that it was memorializing the may th call and when you take her deposition testimony her declaration and that e mail into consideration a reasonable jury could conclude that ms mckinnon did in fact engage in protective activity on that may  from she was not asked directly whether or not she complained of gender discrimination during that may th call however during her deposition testimony she did indicate in response to a question about retaliation she did indicate that her boss was telling her soon to look for another job approximately six weeks after she had this phone call with mr worsham in which she had made a complaint of discrimination so she did indicate in her deposition well i think you're correct your honor in terms of the declaration the declaration did not specifically say gender however but what i'm what we're saying is that the court erred by not even considering the july th e mail and the fact that it referenced that it was memorializing the may th call lynch so when when she was asked directly at trial by the defendant whether or not she complained of gender discrimination on the may t call she unequivocally testify that she did which which relates to our jailing to reinstate trial happened after the summary judgment was entered those so that wasn't before the district lacked at that time at that time it was only before the a m just to see if i understand your argument is your argument that she was out to your client was outside or went beyond her employment responsibilities because after it became became clear that she could accomplish what she was intending to she can persuade the employer to pay these employees and the issue was pressed and decided that she continued to persist and ra that's part of the argument the i think i would correct is that it was it was definitely there had been a delay which made an indicate which indicated to her that the company was not willing to do what the recommendations had what the recommendations of legal n h are had been several months before and mr worse him was the person who was supposed to be leading this particular f l s say implementation and he also was not forcing the issue in making sure neal for example was reclassified correctly but it could have just been part of the normal communication internal communication process i'm trying to find out if she  continued to press the issue after it was after management and made a decision but let me ask you something else here i am just to see if i've got the record her purview but that she actually wound up advocating for up to ten employees it of home were not under her were not her responsibilities that is that  basis for your your argument that she wasn't simply doing her job she was going way beyond that i think your honor it's not in terms of when she was not simply doing her job it was when she was insisting that ms neal the administrative assistant that mr park had refused to reclassify as  that's when when she made the complaint to mr miller and then again to mr park and mr miller on a phone call in february yes she was initially bringing this up to make sure that the ten employees were paid however when she received resistance from mr miller during that phone call in december and followed up with him in an e mail her focus in the e mail was mostly on ms neal and mr parks obstruction not presented to the court in connection with the opposition to your motion for summary judgment no you are that that this was in the record but for all of the organized i thought you just told me all the of it is wasn't that i'm sorry for all of the arguments that she presents to this court rely on trial e mail itself creates a genuine issue of material fact of whether she complained about gender harassment at in the may phone call and that's before the district court right actually absolutely and the district court employment she said no while i complained in my internal e mail to jim worsham on july the th she was then asked separately about a such a retaliation claim that she made internally well after that july date what she was claiming that was retaliation for and she again claimed her july th e mail to mr to mr walker and then in in one of the main arguments they make to this court is that there was there was a written script that she had used for her phone call t and she was specifically asked in that phone call what if anything did you say beyond what's in the script and her response in that testimony was that she ended her call with mr worsham with with what's seen as exhibit twenty five her deposition at page number am two to six and there is nothing in that written script prior to that that page or anything on that exhibit that includes any sort of protected complaint but that she complained of harassment but she didn't specify she ever made any claim but at that summary judgment that she had made any sort of claim of harassment even but even in that declaration all she says is that i didn't think there was that doubt that she complained of harassment in the may th phone call the only place that  comes up is in her the declaration that she attached to her motion for summary judgment she doesn't mention that at all entered in her deposition testimony that make a difference yeah i mean you didn't ask the question see i mean this this is a discovery deposition she doesn't have to say phone call beyond what's in her written script and she's what she testify was that she ended her call with mr orszag with what scene that page with bates then number am paraphrasing something there but judge their argument she she said i said i complained of harassment and they said eat your position while you're not specific enough that it's gender rassmann gender harassments protected but rassmann in general is not and therefore you don't create a genuine issue of material fact and she says no that's harassment is what i meant  in the light most favorable to the nonmoving party which here is the point if the declaration contradicts her deposition testimony it does not but in this case if it contradicts it will here she says no it actually supplements that explains it it's not a it's not a direct contradiction it's just an explanation of what it is without it without contradictory that there harassment i said harassment actually harassment i met by being more specific of gender harassment and i don't see a contradiction you said harassment no you really meant gender harassment so you contradicted yourself well i don't see that i say that sup part of harass the district or dealt with that in its opinion and that's another reason why this court should affirm opinion and that's another reason why this court can affirm because there's a court address that and said a vague claim of harassment especially when it's couched i mean you take into consideration what she is talking about in the prior script and it's all interoffice politics were does the vague allegation of harassment comments not from the script were each she says in her declaration that she made that she she claimed that she was being harassed in that light twelve decoration is that what we're talking about or something else ok yes in the dischord dealt with that it said even if she did complain of harassment it vague charges even a big orders even of discrimination are insufficient to raise protected activity and here we don't even have that records correct  attach or rely on her e mail in opposition to the motion for summary judgment that she not that's correct ok so why doesn't that e mail itself create a great genuine issue of material fact of whether she raised gender harassment in when she goes to the jury right i mean i guess i mean the issue is she claims that this was that this was in the e mail at i believe she does claim that this was memorializing her prior phone call that she says  but we have to take the facts in the light most favorable to the party and that's what she says the facts are and ear of the judge apparently goes the other way and says no i don't have to accept the facts as  that complaint on the may th phone call and we raise that in our brief and the only response that this we can offer so that is in footnote five that the district judge rule on that basis he did not he did not address that because he initially found that there had been no project a complain prior to use that to the district court but there's no ruling that's correct ok so if if we were agreed with the plaintiff would we remain for a ruling on the attorneys now because this this court can affirm for any basis it was in the still firm on that basis and her only response to that is the claim that it's quote is important five reply brief where she claims that that's suspect but discords case law is clear that knowledge of a protected protected activity is an essential element to summary of what she said to mr wharton which is everything that precedes that i think that's the fairest reading until the end now for the st time and it's based on my gender that's correct or on the reading but why couldn't it also be really the bottom court were to assume that that protected complaint or a protected complaint was made to mr worsham on that phone call there's no evidence that the decision maker knew that before d he made his decision to terminate her employment so we still get back to the same place that the district correct correct but with regard to to miss mackinnon's f l s they were tally ation claim it appears from her arguments in this court and in her reply briefs that she is arguing that her email to mr miller and then a subsequent i don't do jail filed any complaint in the supreme court and casts and says that filing a complaint means that it must be sufficiently clear and detailed for a reasonable employer to understand it in light of both content and context as an assertion of rights protected by the statute in a call for their protection in the content we have here is flip offhanded comment i don't do jail and the context is it's coming from a high level each aren't visual whose express job duties were to raise these types of issues to her superiors and work and figure those out she expressed he says that compliance was one of her main job duties as a high level in charge of visual and is that this record acknowledged the overwhelming majority of the comments that she makes in the interaction that she has with anybody is in the context of the claims could also be affirmed because miss mackinnon cannot show evidence a pretext now it's summary judgment the trial court did acknowledge or did did rule that there was sufficient evidence of pretext on the gender discrimination claim such that claim could go to trial but this on that basis for two reasons one that same evidence does not apply with equal relevance to b s retaliation claims into the trial court's analysis of that issue was flawed first missed mccain's protect our pretext argument doesn't stand on this retaliation claims a difference in treatment between men and women perhaps raise an inference of gender discrimination but it does nothing to raise in advance of retaliation and secondly the trial for suspicion can be affirmed as there's insufficient i ask you one thing about that she actually complained on the phone call because there is no evidence in the record that mr walker knew of any protected complaint when he made the decision he was the one who told her to look for a new job he was the decision maker with regard to her terminations and there's no evidence in fact his expressed testimony is that he did not know of any protective complaint performance and such that you know ultimately helped him arrive at his decision to terminate her plummet but this doesn't money it's clear that he had not known or not heard of any complaint of gender discrimination or gender harassment prior to the time he made the decision to terminate her employer that's contained in a brief the district court summary judgment opinion on these retaliation claims th every like to point out that at the district court level the defendant did not make that argument with respect to the lack of knowledge of mr walker they did make that with respect there is testimony in the record from mr walker in which he indicated that at the time he discussed a possible exit package for ms mckinnon in july of two thousand and fifteen that he knew an h r investigation was her complaint to mr worsen to mr walker in may and he had a follow up conversation with mr worsham about that complaint so there is at a minimum a question of fact in terms of mr walker respect to the argument that all three is making on a pretext at the summary judgment stage the arguments by all three on pretext were the same for the gender discrimination in fact they specifically indicate that they're not going to go back into pretext on the retaliate piece of it and as this court knows the district court held that ms mackinnon had presented sufficient evidence of pretext on the gender discrimination claim and we would ask  well there are some additional pretext arguments that are set which we provided at the district court level with respect to the retaliation claims in terms of timing except however we are asking this court to remand the case back to the trial court for further proceedings which hopefully will end up resulting in trial yes so in terms of the in terms of the decision by the to the remaining pretext elements or anything like that in then i did want to if possible briefly address the motion for reconsideration i mean those issues below they're all raised to us causation pretext i mean work people deciding them but your preferences we don't you're certainly capable of deciding them your honor but but my understanding is that in general  th circuit typically when it's looking at an appeal from a district court decision if this is primarily on the on the issues that the district court reached in in terms of the errors that were alleging were were alleging that the errors that he made were with respect to these particular issues is in terms of the motion for reconsideration because we didn't get there i just want to point out that the testimony at issue in particular with this extra tally ation claim that occurred and the district court allowed this evidence to go forward and consider this evidence along with the other evidence that was presented at trial and ultimately ended up erroneous lee deciding that  that this court concluded that the district court made these errors despite significant questions of fact and that those errors on the summary judgment decision were compounded by the district court's erroneous decision not to reinstate those claims at trial based on the evidence that was presented the