good morning your honor richard my thing is somebody half of me is lying and a baker who was also present here in the courtroom today peel in baker raises two fundamental questions there are distinct questions that i will just separately the first question that i raise that the appeal raises that the court must address is what is the plain meaning of rule fifty six or the part of the claim for which summary judgment is sought and in this case it is undisputed that that did not occur we have a first amended complaint which is addr brought to the court's attention to district court's attention at the outset in response to the motion for summary judgment which identifies to the court that in fact what we have all the labeled as a motion for summary judgment is in motion for partial summary judgment disclose all of the claims that he can't issue a final order of the case right in which case we would not have i disagree judge because if i may the the court at the conclusion of its ruling although only addressing both in its in its ruling on the motion for s dismissing the complaint in its entirety with prejudice so whether the arguments were complete or not the motion sought dismissal of every client and the entire complaint and the district court ruled in that respect to motions for summary judgment must be put on notice that she had to come forward with all of her evidence yes when i ask why isn't the paragraph i read you notice to you that every claim was that issue where the where the motion said we want the entire complain under forty two u s c section two thousand and two and three the title seven claims that that's the gender and retaliation claves they do not address that in fact under each of those there are a total of if that's not or if anything that might mean that there's some kind of mistake on the merits if there wasn't evidence to support summary judgment for defendants but it doesn't appear to be a procedural mistake of any kind complete just on that one point you know i'll certainly move to the second this court in two separate decisions i think has come to conclusions that that buttressed the position of the plaintiff in this appeal in green versus said that with respect to a motion for summary judgment that it is incumbent on the the moving party to a done a fine each essential element of the claims which take would say  i've got ten different incidents instances in which i was retaliated or this is a hostile work environment and let me give you fifteen times when people said a really awful things and did things that go beyond you know practical jokes and  instance that does occur with all due respect because what we are going to fight for the court is in the first amended complaint and the underlying charges discrimination is that for example there had been discipline administered and in a differential manner that the client had been threatened in actually disciplined repeatedly i when in fact males her peers on the on the pulling crew who engaged in similar or more egregious conduct were not disciplined at all in fact the supervisor engages in a cover up that's not what is your second issue before you run out of time just a bit i let me just say that the second claim your honor the the court's interpretation of the facts that's not addressed by the court we believe that that's an air and that in fact given the the temporal proximity and the disparity in treatment that occurs here that in fact there is a clear question of fact as to why or not retaliation occurred and what so what is the what it what is the hat for which she was retaliated the act for which is retaliate your honor is that shortly thereafter repeatedly in protected conduct she complains of differential treatment of just being treated differently so that begins in two thousand and nine yes and and and the retaliation is well and the retaliation start shortly thereafter around it because the records that are established is that all overtime and understanding overtime was in the courtyard that when she finishes or trying to she's assigned a whole yard and stays there for six months rather she th and well basically over time are opportunities what other adverse employment actions are you did you present to the district court for presented to the to the district court  response your honor focused specifically on that which is addressed by the motion which was the wages shoes mention is made at the outset in that motion to the fact that the money the commotion does not factually address the other claims that are raised on my side so i think we're not communicating we're i'm looking for what are the apt to have a claim for retaliation there has to be an adverse employment action court was directed to in footnote three but also in the introductory response and also provided substantial information on by way of background was that which had occurred and the number of claims that have raised so specifically your honor the focus of the response was on the wages shoe or the lack of overtime that's what the court addressed the the other the manner in which this motion is made is essentially a can to assume a spine to rule and it occurs without notice i think that it is incumbent that in the context of the motion for summary judgment that the right i thought it was interesting the counsel chose to begin the argument by making this case about the plain meaning of rules for if it is about the plain meaning of rules then surely the absence of any controvers the twenty five identified numbered facts of record which supported our motion for summary judgment entitle us to affirm and in this court as it would entitle us to summary judgment in the first place there is no attempt to controvert the twenty five number of statements and i'm not saying that formalistic lee because it's not as if when you look at the additional statements of fact that were then offered it's not like those impliedly contradict my twenty five statements it's not like you can find by mining within them controversial as of the facts that entitled us on the merits to summary judgment in this case so for example there's no attempt to controvert that scott christie was better at operating the front end loader and that fact carries across the is one of the two things that is a nexus of fact where there is a concrete allegation and there's some attempt to show evidence really that something was done wrong to ms baker there's the coal yard over time and there's the crane operator pay because m the argument focused on this idea that we didn't really move for summary judgment there are several things a couple of which aren't immediately apparent from looking at the opinion below i'd like to point out not only was there not a controversial as i've stated but then i think it was the night before the the oral argument before the district court but it was immediately before there was a document one seventy five which was not authorized by the court or the rules and it is an authorized quote statement of disputed facts and it seems to be an attempt on of the argument to say well we really did controvert things that needed to be controverted and if you look at document one seventy five what really puts to rest the idea that there were some extant phantom claims that we didn't somehow address the last paragraph in one seventy five says well there are it's disputed issues of fact and counsel there are sites only the crane operation and the coal yard over time which is what the whole case and the motion and up being about so when right on the eve of oral argument in document one seventy five to say well no i really controverted things despite the complete lack of an attempt to address our fax numbers one through twenty five counsel then pointed back only to the things that we contend are the sum and substance of and this readily demonstrates that there are no other claims out there another way of determining that is that when you look at the actual fact statement that was filed by counsel number one forty three you don't see evidence of any of these phantom claims that you're supposed to think constitute the margin between the counts which you were just discussing with counsel and these additional supposed claims up to number thirteen that are out there there's nothing making evidentiary before the courts original summary judgment ruling the set of things which counsel vaguely alludes to and that's why the district court said in the course of one of the two orders i believe the first said you know there's some sort of discussion here about you know retaliation by investigating but there's nothing that is  is is it is it correct that she's the only woman on the crew she was the only woman in both of these work environments joshua and the the argument is that she was not given overtime assignments and that they were given to someone else right and the district court held that there was a good reason for that because he was better qualified the district court since correct your honor is there any showing the existence of one woman in a crew is kind of a classic situation that arises in sex discrimination cases was there any evidence or any indication that  skills i don't weavers any evidence in the record about that particular scenario and speaking to the foundation was there any evidence of any other net of anyone else being given overtime assignments no i believe the question over time of issue in the coal yard that they're complaining about was given soley to scott christie that the population was very small your honor i believe as a factual matter there were three or four people who would work in the coal yard at once so there would be a very small number of people eligible to seek  overtime a very small number of males and the speaker being the only female and that issue was resolved by the court i think correctly because of the articulation of not only a legitimate nondiscriminatory purpose but here it was all of the overtime went to  as far as who got more overtime overall was done in our statement of fact and we drew a comparison over almost a two year period using an exhibit that diana baker's counsel introduced at the deposition of her witness who was her union head and over the period of late oh wait to me had ten she got more over time than scott christie so if the question is launch of student will we would win because there would be no issue of fact because in fact mr grover the head of her unit admits that she got more over time over  nearly two year period which we think is strong evidence of our good faith but going back to the legitimate nondiscriminatory purpose that we're discussing facts around it's striking that ms baker herself admitted in what became our statement of fact number  six that deposition ph to fifty one or so she did that he did a better job on that test in two thousand and eight he did when they were observed together and so there was a chance to have a comparison and the comparison was made not only in front of tim hurley who is the decision maker but the evidence by which we elicited this testimony from his baker was that there were notes of a gentleman named john john appearing who was a was lower in the chain of command than mr hurley and who was friendly with miss baker and he at the time had opined you know robert christie i think scott christie's brother was the best and then there was a second individual and then the third individual in his notes represented a hierarchy and so it wasn't that i just asked her out now was he better than you then i elicited the observation of others at the time do you agree that it was true and so there's corroborative evidence around this that i think should give the court comfort that this is a stark admission and  business purpose for which the company assigned the relatively modest amount of overtime issue i'm so we think that there were only the claims which we just discussed in colloquy with the court we did address all of those claims and the question of what was out there we tried to pursue that decision was lee through not only discovery but there was really no disclosure under rule twenty six what are your buckets of damage and that's one of the ways you learn what someone's complaining about tell is a bit of a difficult burden shifting exercise when you never tell somebody your damages completely during discovery to turn around in the ninth circuit and say well you didn't address all the things i was complaining about when you never told us in the first place and that's we think nonetheless the district court dealt with this in the right way i've come to the end of the things i would wish to address or the other questions i could address your honest i don't believe so thank you thank you for your time arrives heartiness you have about half a minute but she complained of discrimination very raw after that lightning bolt strikes and she gets no overtime and it all goes to mr christie not only does it all go to mr christie they then offer to distort the record by the courtyard mr while mr christie had worked for the company he'd never done front end loading and in fact that the type of front end loaders that were used which were were quite large nature had only been used for consecutive period of six months