strong arm have trouble here ok this case involves a situation where we have a human resources manager out there trying to do the right thing and the question becomes what protections  to mr miller was the director of human resources as such he was the senior h r person for metro care services that care centrally oversaw the provision of mental health care services in dallas county and what mr miller observed happening was that on the one hand the department of labor was looking at case managers and a number of other employees and saying look based on these job duties these people are nonexempt if they work overtime they're supposed to be paid overtime on the other hand is the director of the facility mostly the original director and then an acting director of the facility was saying look we can't pay for it we're a public institution and we have limited funds and we can't afford to pay him over time and so what was happening is these employees were centrally told don't work overtime if you have to work overtime then you have to get the c e o s permission before you get the over time if you don't get advance permission then then you'll be subject to discipline all the time when they know that the job in order to get everything done actually takes forty five to fifty hours per week a major hindrance to your claim even if you're absolutely correct on the facts and what they were and that they were doing something noble same that argue in the hague and case which makes it that an h r director pretty much almost can't ever be have one of these claims because they're always going to be trying to advance the law in the area so the question becomes first of all is hagan rightly decided in light of this the supreme court's new decision and then secondly if it is what do you have to do to step outside of the role of an h r director  or to advance claims for purposes of obtaining protection under the statute the statute itself does not support any management exception and the statute says any employee any mr miller and so i mean i guess the first question is is hagan at all even relevant given the supreme court's decision in casting versus saying gibson  hagen and that says but then it goes on to say well what kind of formal complaint we understand that we don't want just every sort of grousing to become actionable and so if it sets forth kind of a test and it says there has to be an assertion of rights protected by the statute and the coal for their protection and it has to happen in such a context that the employer is put on notice so what miller did is the classic i mean if you were to come up with the employer being put on notice this would be it he goes to the acting c e o and he says this is what's going on this is illegal he's the director of human resources  anyone in the company would know he would know when he says this is illegal it's going to expose us to liability we need to stop this and i will personally undertake training to the supervisors to get them to stop pressuring the employees to falsify their time sheets certainly not stepping out of his role that is completely in the warehouse of his role in that train the other employees to instruct the company as to what their duties are so is it stepping outside of his rule probably not but does it comply with what the supreme court said is actionable in caste and absolutely and so we've got this now this contest between the cast and decision from the supreme court which admittedly didn't look at it in the context of a manager and it complies with a test and the hagan decision but even hagan is there are some exceptions to hagan in terms of what this stepping out requires of the first big gaping hole in the hagan decision aside from the fact that there's no statutory support for a management exemption the first huge game we have to follow it are you trying to argue that we should go on bach or something or we have to follow that unless it's pacifically over rule by the supreme court which you've conceded hey kate the other case didn't address the manager so it and it didn't even talk about stepping  and so there under those broad purposes of the act there's no reason to hold mr miller out in a separate category the act clearly says any employee and so what hagan overlooks  hagen recognize is there is an exception when you have a person with mixed responsibilities the exception the pagan sites for that is the york case where you had someone who was a manager but he was also a union president and as in his dual capacity he goes to the chief and says look at this new supreme court decision and does this mean people are entitled to overtime wins so the court the recognize there's an exception where there's this dual function so in hagen there was not that dual function in this case there is and the reason i say that there is a dual function in this case is that what the h not address is that the congress has basically said compliance with the f l s a is so important that we are going to have individual civil and criminal liability on controlling persons in an organization so if the if the if the district court's interpretation of hagan is correct we would have this bizarre situation where mr miller has arguably a controlling person because he is in a position of  implementing rules regarding how wages are determined he would arguably be controlling person he would arguably be subject to individual civil and criminal liability for his knowledge that the company is engaging in f o c f l s a violations so he could be criminally liable he could be civilly liable personally not just the company but him personally and yet the court would say that when he says we can't keep doing this we have to stop doing this it's against the wall he would have no protection that just doesn't make any sense because he's a controlling person who's this potential civil and criminal liability he then becomes like the union that is totally in simpatico with his role as the manager and the h r it's not a dual interest he doesn't want to be individually liable that any manager doesn't want to be individually liable so that's not the same as the union the unions not trying to keep from being individually liable they're trying to represent the union whereas the h r manager has to represent the company and provide information to all the employees as part of being h r manager so the company is adopting the policy of let's the or the fellas say let's do something even though you're telling us it's illegal at that point mr miller's individual interests his individual interest in not being hill civil legal or criminally responsible for the little legal action becomes adverse to the company but that's also his interest in being h r manager to continue telling them what the law actually is is i think the h r manager makes it extremely difficult for you to argue stepping out but perhaps you disagree well i think it's the court's burden to justify why someone who is in a position cheat people out of their overtime wages there's absolutely no language in the statute the statute very says any employee and again mr miller has complied with what the supreme court said and kasten is required to make his her complaint to the sea acting c e o protectable you understand though that if we totally agree with you and think that that's a bad rule and that the rule should allow him to make a claim that we have to still follow the case we are ballmer to do you understand that not necessarily not necessarily there are again there's another exception here that the court could go to aside from going to the the the york exception which is to say that when you have a controlling person who has an individual interest that might be adverse to the company's adopted policies aside from that exception the court could also go with another exception that we've cited in our br s and that is there's an exception where the company believes that this individual employee either happens who will step outside and go to the department of labor and instigate a proceeding with the department of labor in this case we have a situation where there's evidence showing that the company believes that mr miller was about to do exactly that he and sam clark and other  he had made these complaints consistently in the past sam clark had just been fired in the prelude to being fired mr miller learned that she the company was monitoring  her network activity on the system basically she was fired immediately when she was subject to the reduction in force unlike other employees who were given a couple of weeks to kind of wrap up their affairs and mr miller asked about this and the answer was she's an organizational risk and so risk to go to the apartment of labor so she was there for regarded as someone who was at risk of going and doing something adverse to the company's perceived interest by going to the department of labor so we've cited two other circuit cases where the company believes that person is going to actually step outside and affirmatively argue or  ely go to the department of labor or sister people going to the department of labor and that's good enough to invoke the statute so that would be as simple and easy exception to to to get outside the decision taken they can didn't address that issue  can didn't address the issue of whether or not the manager in that case was someone who was a controlling person who would have individual in a civil and criminal liability so the court can easily distinguish hagan on either of those two grounds without  we're finding that the supreme court's decision and cast and overrules the decision why isn't your retaliation claim totally voided by the fact that your client was parker hasa fine background checks well the simple answer is  didn't falsify in that he did have a prior criminal and didn't perform background checks on people he was first to perform and he said he dared including himself as to whether or not there was a criminal background he did subject another also you run your name and they tell you family's been going to event the other way to do it and they use this for situations where there is a common name in there for likely misidentifications of information is to go and have an outside company do it based on things or prints and that's what he did he went to the outside agency that is fingerprint and it came back and and confirmed what everyone knew that he hadn't had any criminal incident aside from the incident in high school so that incident in high school was known it came up in the criminal background search when he was hired he discussed it and information was communicated at the time there's dispute as to whether it was communicated but it was communicated arguably to the person who made the decision to fire him so there's there's no fraudulent activity find to conceal any criminal history it was all disclosed metra care knew about it when they hired him they checked the criminal that would go back and automatically check everything and so he assigned them to do it he later learned that they had failed to do it the day before he was fired he instructed they were changing the way they were doing it the day before he was fired he instructed them to go back in because they were changing the system to run a criminal background check on everyone in the company including himself so there's just it's it's not true all right th please the court job her belly medicare serves as linda thompson comments and let me address the question that such climate posed towards the end and that is regardless of whether any activity that mr miller engaged in was protected or not in the federal statutes supporters that he had run checks on seventy employees in december of two thousand and twelve when in fact he had not run those the person responsible for uploading in metro care's human resources information system a confirmation as to whether those checks had been run or not as mr miller the on the checks being done because for some reason which i don't really get to the program was set up just to indicate that automatically the people had been checked rather than to it after the check and been run no there's no evidence what mr crouch mention is that there was an effort of medical care towards around this time frame to design some sort of system that would allow them to take mass information from these checks and a that they were following for background checks but in actuality they weren't yet fine so it wasn't falsifying that they had had the background checked it was a default system that said that everybody was checked but they weren't so it wasn't it's a different situation than them going in making an entry the entry was already there that everybody was checked and it was not following up on that i'm not saying that it was a good thing to do but i don't think that the that's simply is the way it works regardless of that the mr miller doesn't dispute that every year he was the one required sued again if i each month a list of employees who had to be checked because they were checked by birth month so he would have to go through and save our seven hundred fifty employees these new freeways available to be checked give that list to a subordinate who would then run the checks to the dignity and d p s system there's no dispute this case of mr miller excluded himself from that list for three two thousand and ten two thousand and eleven and two thousand and twelve it's not clear to me why he excluded himself in his deposition he indicated that he thought that because he was not a direct care provider you understand the measure of care is a  y retardation agency that deals with disabled people who are vulnerable to bad persons and so those who provide direct care clearly cannot have certain criminal convictions on their history but if you look at the regulations of political to make them our centers in texas near thirty nine of them those regulations indicate that no employee of the center can have a certain conviction there's a list of maybe fifteen or twenty of those convictions are solved sexual battery murder things like that so m because his chris conviction was not on the list his own action was a minor a minor theft issue they didn't know the details of the conviction but it didn't show up on the list of disqualifying convictions so he was hired so they have to run these every year and mr miller was the one who cr list to run him every year and mr miller took his name off the list three years in a row now he has given the he's given the proposition eight six name all because he didn't believe he because he was a direct care provider he didn't have to submit himself but when i asked him  wasn't the practice to run everybody at that metro period mention was yes so he knew that was what was required he just felt to do it why did he philip do it you take me outside the record your partner speculate but the immediate answer is he didn't want his supporters right in those to know th y had that conviction and gossip in the center about it i can understand that but that doesn't justify the major intention you know the original commission of conviction yes and i can understand that concern and and i feel for that but the reality is the h r manager of the seven hundred eight her employees public agency has a responsibility to ensure that those criminal background checks are run on employees at that center and excludes himself from the very process if that's not a legitimate reason terminate him i don't know what is so let me swing back to the issue of whether there is protected activity on the fair labor standards that mr miller's contention are skewed mr precious contention was is that cast and somehow affects this court's prior decision cast and simply dealt with that issue cash and said yes and all complaint is sufficient the court didn't say anything further that would that would damage or deprecate the haganah one fact the court said thirteen thirty four the supreme court reporter version the employer must get their notice that a grievance has been lodged well that goes right to the issue of mckinsey and and and hagen which is the import has to understand that what's happening here is something outside the ordinary role of ensuring compliance or ensuring while it's lines of the law the employer has to understand that no this person has stepped outside of that role of unit h r person or a compliance person or general counsel or in house counsel and has gone to the partner of labor made a complaint for example in some of the r claims yet in my opinion that's it and it shouldn't i mean in my opinion is some point if the general counsel h r director somebody in the line of fire on these issues feels like they're not getting a response from senior managers feels like there are real issues yes it's a very tough decision for that person to make but yeah i think if they do step outside and they do go to the partner of labor or they go to some other important agency e e o c whatever whatever it is there may i think yeah i think arguably at that point they district but that's exactly what happened they charge a manager urged compliance internally it didn't happen she got a little upset about it she contacted the partner of labor judgeable said that's fine that's stepping outside of the role so i do think there are instances where compliance employees in house lawyers h r employees do have the ability to be protected under the statute it's just not in their ordinary role of doing what they do every day because we think about it it would be virtually impossible to terminate because what they do every as they provide guidance on the law in house lawyers same thing when they're they're asked questions does this comply with the law they provide an answer the management doesn't like the answer they go to outside counsel outside counsel gives a different answer and say you know i'm a fire you don't know what you're doing well that's her job though that was her job she is she's she's providing appliance activities for the agency i have eleven minutes left there are a number of claims sort of in this case i'm not really sure what you want to hear about and i don't want to regret regurgitate my brief  complaint i think is undercut because first of all it's our capacity to make a reasonable accommodation but if he did if he made that request the request was to rehire an employee that we had just laid off for cost savings reasons cost reasons to come back here and help him do data entry i mean that's really specific and that would be dot com and sensical but you could say that you require some sort of data entry accommodation and that's sometimes an  requirement in other contexts not to hire a specific person back but you can request data help that is a normal id and a requirement so can you help me with that one that client ok well first of all his claim wasn't i want help with his claim was i want you to hire somebody to come do it for me in a particular i want you to hire this person to come back and do it so it wasn't really a vague database klein if he had said yeah i need some help entering david and probably going to find find somebody else  apartment they already down to people at that point in the department because the layoffs to try to find somebody else or bring in tim fell to the tension late help with data entry and again all let me back up the reason accommodation the retaliation and the discrimination aviate claims also assume something else and what is that something else that mr miller's actually disabled the only evidence we have of that is mr miller's declaration and deposition testimony where he testified that four years ago in elementary school when he was in seventh grade one of his counselors indicated to him that he might be dyslexic that's our evidence of dyslexia as ok now we have no vocational records we have no educational records we have no medical records we have no independent expert corroboration of this dyslexia as a disability so before you even get to the accommodation issue those claims determine whether is enough evidence to support the fact there was a disability here i think it's hard to questionable that that evidence that just him saying i had dyslexia is enough otherwise anybody can walk into a court in a time and say you know what i've got a mental health issue i've got this you should get that without any corroboration whatsoever i agree that corroboration is not required if it's something that the jury can perceive on their own missing limb something of that nature but when and when somebody says i have a condition that's not typically a parent's anybody there needs to be some some medical vocational some type of backup that corroborates that and there's none of that here so let me turn to my f employees to testify about his terminations in an open meeting of the board of trustees after he was terminated now that arguments as springs from border regions versus raul with the supreme court indicated that in certain circumstances even at will employee who has been stigmatized by the government's allegations at the time of his terminations may have the right to some sort of name clearing here in this circuit the court has developed a seven factor test i won't go through all the factors of that test one of the elements of course is that the the reasons for terminations in other words that the stigmatizing information was taken outside mitchell care and published to the public that's one element that has to be proven to have the right to a name clean and here in the vast majority of those named karen hearing cases what happens is the government publishes that terminations basis to the media you know the county sheriff stands up says i terminated deputy county sheriff because he was having an affair with somebody in the office or being defrauded the federal government publishes it to the media that didn't happen here there was no discussion of the media no discussion outside of metro care about the basis for mr miller's terminations instead mr miller has a relatively novel theory his theory is that because the texas public information act which essentially the open records act in texas which essentially requires government entities in texas to make available all their records with some exceptions to the public if they're requested mr miller's contention is that well because my terminations records the the that's nonsensical to me that means that any time a public employee is terminated under circumstances that are arguably stigmatizing and those those reasons have been documented somewhere whether in an e mail a memorandum  to me that essentially means that the public agency has to give a name for me here in any of those instances well every day there are thousands of government employees in texas state local cities counties that are terminated under situations to stick stigmatizing fraud what happened and simply because a records in their file that might at some point five years now be requested a public information act to me that doesn't that's not publicizing the governor is not intentionally publicizing the records simply by creating it now mr miller also argues that in this case his records were actually requested by a member the public that's correct he contacted one of his friends ross heideman in arkansas mr hyde and senate open records request here requesting mr miller's personnel file now i knew at the time i handled the response from medicare i knew at the time that if i produced mr miller's i knew what was going on i knew mr heideman was i knew as mr miller's friend and i knew that if i produced mr miller's termination records that mr kraus mr miller within our good measure they had voluntarily publicize those records so what i had to do was i knew what the action was going to be the turn in general but i had asked the attorney general for an opinion as to whether those records should be disclosed i knew what the answer was going to be because i've been so the fact that those records were produced in this case out of the public information that doesn't help him either one it just goes to the point of the very creation of these records shouldn't give you the right to a name thing here but to if you yourself are the one who actually end up calling the records be publicized you don't get a name from here final point even if we publicize the records and he was entitled to a hearing he got we loud him and his attorney to come to the board of trustees in a public meeting we allow them to present any records they want to present present witness statements if they have them to provide voluntary witness testimony if they had for example sam clark who was one of mr most foreigners or of him she was at the meeting they didn't call her to testify that so they had the ability to do whatever they want except i would not allow them metric i would not allow them to compel mitchell karen poised to testify the one thing hearing that's because the law does not require that no circuit other than the  blown cross compulsory cross examination is not required in those cases or cited in the brief the ten circuit in one case did indicate that where in that particular case the employee was charge of misconduct by undisclosed reports in other words it was unclear who made the the accusations and what the accusations were the tenth circuit held that and that case i think it was a school district a school district needed to present those persons who made those reports so that the attorney for the the employee could cross examine those  persons in this case mr miller knew why he was being terminated i provided seven hundred pages of record his records to his counsel prior to the hearing that included all all the basis for the terminations they knew what the term nation basis was they came in they made a presentation they're not going to do everything they want to reasonable accommodations from employers and from educational institutions throughout all the time there is no requirement is there in the record idiots there's no requirement that it be a claim of disability be supported getting reasonable accommodations from other employees within the h r department they were giving him assistance in terms of proofreading in the hope sampler in her declaration confirms and corroborates that he had disclosed the dyslexia condition presumably had these functions in others throughout all that period of time it's not until this time but in a way we accept what you say he did and as i mentioned sam clark who worked for a number of years in human resources with them for declaration corroborates that he had disclosed that islam for many years but it wasn't until the beginning of two thousand and thirteen when he requested the reasonable accommodation there's no dispute that data entry is an essential function of the h r director position  it's not a reasonable accommodation to have to rehire somebody who has been fired is it you can look for people within the company that can come and do the work or hire a temp or it gets to pacifically say you must hire this made is that an employee who was fully trained fully knowledgeable in the systems be brought back in on a part time basis to do the data entry function metric kara could say well that's not reasonable or we will get you somebody else and they could have that dialogue but when they refuse it and don't suggest any alternative then it infringes mr miller's rights and the so they could have had somebody else provided who was still employed and trained them what they actually did was after they got rid of mr miller is they actually hired a new person to come in and do the data entry for them so that none of the existing process that they actually did what mr miller suggested which is hire someone to come in and do the data entry that person was eventually hired full time so mr miller suggestion was moved why not get someone that we know is currently unemployed and currently trained on our systems and just have them do that data entry work so it's it's not an unreasonable  make they could they certainly could say no we don't want to do that for whatever reason but they have to at least instigate that interactive process under the a b a and start the dialogue of what is a reasonable accommodation and if we can't do that because it's an undue burden maybe we can do this that claim rises or falls with that if it was legitimate to terminate him for for allegedly not running the background check i think  engage in that process and then they actually include has part one of the reasons for terminations not one of the reasons disclosed in the terminations memo but one of the the afterthought reasons is failure of him to do this wellness fair and that was part of the reasonable accommodation if you're going to fire my employees that have been doing this wellness fair i need some help or an extension of time on that they actually cite that as reason for the terminations so