good morning your honor brian layton on behalf of the plaintiff an appellant julie white i'd like to save a substantial amount of my time for rebuttal in this matter this case comes to you on the district court's granting did jackson the district court was required to weigh all of the evidence in the light most favorable to julie white the non moving party this court is obligated to do the same thing this is kind of a rather sad case of taking advantage of the only young woman in this entire team requiring her to be on call twenty four hours a day seven days a week the only female to have to do that and then getting her put her on separate probation and then terminator because she would come in late on occasion and sometimes not come in at all even though her spineless supervisor is the one that told her i recognize you're working long hours you don't have to come in today or you can come in late and then turn around  supervisor is on the east coast that julie just didn't show up and so she was terminated as a result of that what she was actually terminated for and the evidence shows that she was terminated because she complained about the fact that she was not getting over time she complained about the fact that there was gender discrimination in that she was the only one that was required to do this twenty four seven twenty four hours a day the district court looked at it and in a footnote weighed the evidence which he could not do and apply in an illegal standard if you will by saying well since she was single she metrics cited throughout both of my briefs states that the employer has the burden of a stablish in the application of the exemption exemption from overtime and the court must construe exemptions narrowly against the employers the position in this case julie weiss position must plainly and unmistakably fall within their terms and spirit now the district court judge correctly found over the objections of good jacks the julie white was not an administrative or an executive in the with did jackson she couldn't hire she couldn't fire had no personnel management had nothing to do with the business she was a grunt employee but he found that she was a professional and found that she was primarily involved in intellectual creative positions that and exercise discretion and he found that she exercised discretion because when she was working at two o'clock in the morning she was unsupervised so she had to exercise discretion that's like saying a mechanic that gets called in at two o'clock in the morning to fix the vehicle exercises discretion because the boss wasn't there julie white was not experienced in this field she acquired the skill while she was there this chord in bottles that acquiring a skill on the job does not make one a professional she acquired a skill all she did was tell pan desk lead pan desperate through while there w server was down and tell them how to get it up and running she was the one that was called the two o'clock to four o'clock in the morning it was very time critical to pan death sake because apparently people shop twenty four hours a day on the internet a supply the service to like adidas and board so people can chop twenty four hours a day and if the service went down they had to get them up and running and that was julie white's job it's my understanding is she was the principal point of con contact with one of digex largest clients the largest client of jacks on the west coast was pandemic and she was the principal point of contact with that client well when she started off there was nine employees that were taking care of the west coast several of them were working on the pandemic account because pandemic was the largest they then in march of two thousand drop the number of employees from nine to four changed her title didn't change her job duties listen i understand right your arguments your criteria arguments my question is simply focused was she no the principle point of contact with one of the defendant corporation's largest clients that is true and it is true when they called after hours and had a problem with their server she was the one that told them how to fix it yes now the next in fact occurred after hours the next day was she required to go through some supervisor and say here's what i did what she was required to do is because she had a computer at home she had a computer at work the computer at home would show when she logged on to help the pandemic when she logged off those log in log offs were then sent somehow to the company the worst supervisor would see when she logged on and once you logged off she would log on to help and that's a log off when she was done helping fantastic so the supervisor was aware of what she did because every step on the log and log off would state what she did to get the server up and running or dry extract only in this record is there were there any instances where a supervisor said i looked at your log on log offs last night and the solution you suggested for our client was was not the correct run you should have done x what the record shows no your honor but the record does show that there w occasions when julie could not help and so she would call the east coast team who were above her knowledge and capability and they would do it but there isn't anything in the record that somebody told her the next day that what you did was wrong but i don't think the question was ever asked it appeared as though she was able to get the problem fixed very quickly because it was time sensitive or that somebody above her on the determine this kind of issue that we're talking about in this case well i don't think it's in even a car mechanic that these days has to be computer literate they do but that doesn't mean they're exempt from overtime now the stake in the company well i just i have a relative who has received lots of worthless stock options and i see companies and i know that it's very common in the industry to do that but i don't normally less than a thousand dollars and this was after one year she was supposed to get bonuses the men did she did not but we have to look at exactly what she did and it has to be unmistakable and clear that she fits within the exempt category now one of the things that would assist us is the california courts and the federal courts say well it's under california law we will look to the federal code of federal regulations and see and use their language and their interpretation page thirty two of my brief i point out of my opening brief that the the the federal government has twenty nine c f r five forty one point three zero three and they're talking about whether someone is a professional or not in the computer area and subsection d says this exemption does not include employees engaged in the operation of computers or the manufacture repair or maintenance of computer hardware which the california courts follow now she didn't even do that she didn't do repair or maintenance she didn't design the websites she did not have to tell the servers she did not design that under all the levels of reading is not considered a professional particularly if you look at bothell and particularly if you look at the other case the cited between thirty two and thirty nine of my opening brief and also in my in my response a brief where they say acquired skill on the job acquired skill does not make one a professional person who worked for the insurance company communicated with attorneys witnesses doctors and negotiated settlements on behalf of the company julie white could do nothing except get on her computer and tell a how to bring their server back that was her only job twenty four seventh's when the court determines that the district court erred in finding she was not in that she was not an exempt employee and therefore entitled over time then it's a domino effect as to the district court's granting summary judgment as to all of her other claims he claim on the retaliation claim it wasn't retaliation for gender discrimination or for complaining about overtime in the shift differentials that she was promised but because she was tardy in late the record shows abundant evidence which the district court unfortunately waived in violation of summary judgment standards and said well it looks like she was late and tardy and therefore that was a good reason to terminate or not because she was complaining about overtime because she's not entitled overtime is that this is no way meant to be a rhetorical question ok so correct me if the actual assumption is wrong is it your argument that there is sufficient evidence of pretext or at least a material question of fact as to create text based on the dispute the tween her contention that she was told she could come in late or not at all in the supervisory denying that there is enough evidence to take it to the jury where a jury could find which of course is a summary judgment standards  jury could find that it was a pretext because she was being given over time and tell they dropped five employees made them four employees changed their title but peter kept her job the same the only problem is is if i'm not entitled overtime why am i the one that is working so much not getting over time yet the male employees are getting job training they're getting bonuses they are getting more stock options than me what's going on because she was working so many hours she would call her boss gone be on by who say come in late don't come in at all but he never reported he reported the opposite never recorded that he told her that she thought everything was ok then don't did she sign some write ups yes because she was required to sign the write ups whether or not she agreed with them or not otherwise she would be terminated they said that you can make your own statement which she did and did jackson never provided that in discovery so they couldn't find them the h r manager sima kapoor had left didn't know where she was and those were not produced in discovery but she did write up her own separate statement didn't keep a attendance problems did not resolve initially she received three verbal warnings she then received a written warning in may of two thousand her attendance problems continue she received more horrible warnings this was all white while she was  who placed her on a performance improvement plan in august of two thousand ms white signed the performance improvement plan it doesn't say she agrees with the terms as she understands those terms she admitted in her deposition that she understood that if she violated that performance improvement plan she would be terminated the letter of the performance improvement plan says in two places if you violate this you will be terminated she knew that and yet for two more times only two weeks later after signing the performance improvement plan she was late without first calling in to advise that she would be like that was  the performance improvement plan she admitted that she violated that performance improvement plan twice to just follow through on its policy and terminated her employment so many employees that they have at the time that she was  to that she was late for the job how many people were in that i'm not sure the exact number of people on her team at that point in time she had about four employees on her team and supervisors a as you read the brief you get the impression that well you know if she's up till two or for something and the next day it's understandable to come in late i don't believe that there cannot prove pretext to use identified no inconsistent reasons for her terminations as some of the case if i didn't embrace had she has identified nothing that mr along may have said to her that would sky person as home working on their computer and it freezes up or whatever and they scream and yell and parachutes in these volkswagen beetles occur in this g q looking guy whatever that is and walks up to the door holding a badge and this is the  that's going to come in and solve the problem i get the impression that this woman was no criticism intended to be the company or the employee that that was really her function that when this client had a problem with that server she was supposed to be available day or night to help them resolve the problems with their server and it would all be done online she would post on their computer and fix the problem right i don't put all those that make her a with respect to the fact that you set forth i don't believe that she was expected to be on call twenty four hours a day so put that aside and wasn't her job to respond to the call from the computer and it was done online correct correct and if it's the broadband the quick the length of her driving up to their front door and walking in and sitting down at the computer the server and helping them manual work not intellectual work and one of the requirements i was under the impression you get on the computer keyboard too long and you can have all sorts of problems with your wrist you're saying that's not mechanical i'm saying that that she actually did large into their computer correct or is she on the phone talking him through it evidence really wasn't submitted on that specific point i do believe based on her declaration that she did sometimes log in from home and she sometimes log in from work i think she did but you're right to work on the the client's computers she's she's connecting to it we don't know who we are whether she  there's there's no question you're designing systems if you're a professional probably even if you're programming software creating software programs and so on your professional but it's hard for me to see that comes down necessarily to what she did now are there are there factual disputes about exactly what she did i don't think what she did was in th there's an agreement between the parties that she would receive a problem from panda stick and that she would work through that problem and she has said at least three times in her declaration that she was the only one formal procedures there she admitted that any harassment that would have occurred resolved as of june two thousand the indications in her declaration suggest that those were not the complaints against her and then the suit was filed after that i have a question but before i ask it let me apologize for using the word good i shouldn't you're a professional because your law school graduate and you're a licensed attorney and i think you're probably specifically exempt into this overtime provision that we're dealing with let me ask this question when she logged on and help solve the client's problems that would be automatically reported or available to her supervisors correct criticized her or offered constructive comments of any kind of about the specific actions she had taken with respect to helping solve the coins problems the only thing in the record that might address that is one email i don't believe it was from a supervisor i believe it was another person on her team where she had aunts and an internal e mail stream to a  criticism to my comments about the action she took with respect to the client as correct i'm not trying to assess whether she did a good job or not just whether you know any point in time a supervisor looked at the specific action she because she loved the fact that she was trusted to work after hours suggestion must have demonstrated that she could handle the job and could make good decisions while working during normal work outdoors the fact that she wasn't in that there was no supervisor looking over her shoulder is the opposite of the awful case where for any trivial decision whatsoever the repair man in that case had to call his supervisor even when he was offsite there's no indication in the record whatsoever that ms white had to call her supervisor to report in to get permission to do anything she was absolutely trusted to handle this client and she made clear in her declaration she was the only one capable of doing that she was a technical account manager she was effectively a computer systems analyst she analyzed the computer system to figure out where the problem was and get the system back on line now the computer systems analyst under the two thousand wage order which does not govern here she doesn't fit precisely that requirement under the later wage order but the one thousand nine hundred eight wage order which did govern her employment is more general under that order it simply says you have to meet these three threshold requirements you have to have primarily intellectual work you have to engage an independent judgment and discretion and you have to meet a threshold wage level which she did nothing more is required by the letter of the one thousand nine hundred eight wage order in contrast in two thousand there are additional requirements in it above and beyond those three license it's not just a license it's something more than that now they didn't give guidance about every possible situation you could have but they didn't talk about the fact that we have emerging occupation understand that ok ok are there cases that deal with whether the decision to subject an employee to an improvement plan constitutes an adverse employment action i was just looking for some help to see whether there are cases that say up or down and there may not be any there the decision to institute in the worker improvement plan can or cannot constitute an adverse employment action i think generally you are permitted to have two different practice you may be just applying someone and if they make a complaint that doesn't mean you have to stop your just applying it has it might be perceived that you are  there was a violation and the employer said if you violate that policy one more time you will be terminated he also had a sexual harassment claim and he  because of the violation of the policy that this was a little bit different because there was about a year and a half it's when that first complaint and the terminations so even if the decision to institute plan is made on the basis of a pretext or some basis that's not approved under an additional standards of employment law once the plans in place in answering your honest question in this court and but tell vs phase metrics in talking about the fact that but they'll was deemed not a professional or least it should go to the jury and they reversed summary judgment in favor of the employer this court and i quote a page eleven twenty eight of that opinion and it's page five of my reply brief under his version of the facts but fell was the high tech equivalent of the xerox machine man who meets in confers with customers to identify the problems diagnose the malfunction formulate some work plan repairs the equipment based on procedures established by the manufacturer and fills out a field service report to enable his employer bill for the work they found under that scenario that would not be a professional to answer another question that the court didn't send back to the jury what that last case you know no it was reversed the judge in but they'll have granted the employer summary judgment and went up to this court in this court reversed and said there are tribal issues metatron cancer your honest question prior to julie white's employment here she was a bartender in a waitress and she worked for some time at a fiberglass i mean at a shipyard in canada fiberglassing hopes she acquired some computer skills were she worked for some the one of her time that we were talking about a significant hundreds of hours of overtime and to answer another question is  page fifteen of my grief at paragraph sixteen which is quoting verbatim julie white's declaration in opposition the motion for summary judgment the objects identified white and explains that the exhibit shows that while i was out sick on april fourteenth two thousand the previous four days i had worked fifty seven hours i work seventeen hours on april twenty two thousand which is the date they  came in late she still works seventeen hours a day i work eight hours on may five i may have been late on may eleventh but i work nineteen hours that day i may have been late on may twelfth two thousand but i had worked the previous nine days straight so it was probably a regular day off i may have been late on may twenty fourth two thousand but i did work for twenty point five hours that day and it goes on and on and on these are the dates that she either missed work or she came in late and she still put in twenty and a half hours that day or the night before now answer another question from this court at page twenty two of the blue brief which again is quoting her begum from paragraph twenty three of julie white's declaration to answer your your honour's question midway of third of the way down on page twenty two it says don had access to my log on and logged off hours on the computer dealing with problems because that was one of the services that dejection provided its customers including pandemic who wanted to know when ken destiny called what its problem was and when the problem was resolved and knew that i was the one that was taking care of the problem whether it be eleven pm or four am and she had this on and there's another part of this declaration and i could find it if it's important to the court the paragraph twenty on page eighteen so as i plain and simply walk through why their server was having problems i would have a computer at work and at home when pandemic would call with a problem relating to one of their servers being down i would walk them through the steps to get the server up and running i was under a time crunch to get that done since pan does he consider etc what all the log in log off what the problem was when it was solved and how the solve was all of bailable to her supervisor here says is that julie was trusted to do the job and so she could do it at home well if that is the rule to determine if somebody is exempt from overtime it's because you're a good employee and you do a good job then heaven help overtime laws ok thank you very much thank you