[00:00:46] Speaker 04:
All right.

[00:00:47] Speaker 04:
We'll proceed to hear argument in the last case on calendar for argument this morning.

[00:00:54] Speaker 04:
And that is 24-762 and 24-801, Rosalie Gonzalez versus United States Human Rights Network.

[00:01:08] Speaker 04:
And we will hear first Mr. Lohman?

[00:01:12] Speaker 04:
Loxman.

[00:01:13] Speaker 04:
OK.

[00:01:14] Speaker 04:
All right.

[00:01:14] Speaker 04:
Thank you.

[00:01:21] Speaker 00:
May it please the court?

[00:01:23] Speaker 00:
My name is Timothy Locksman.

[00:01:24] Speaker 04:
Can you move the microphone closer?

[00:01:27] Speaker 00:
Ms.

[00:01:27] Speaker 00:
Timothy Locksman, I'm here on behalf of Appellant Rosalie Gonzalez.

[00:01:32] Speaker 00:
I know the court has presented a question in an order before the hearing regarding the cross appeal.

[00:01:37] Speaker 00:
I'm going to not address that until I address the arguments on rebuttal.

[00:01:43] Speaker 00:
So I'm going to reserve about eight minutes of time for rebuttal.

[00:01:48] Speaker 00:
Before I get started with Dr. Gonzalez's arguments, are there any questions from the panel?

[00:01:53] Speaker 04:
It's your argument.

[00:01:53] Speaker 04:
You may proceed.

[00:01:55] Speaker 00:
Thank you, Your Honor.

[00:01:56] Speaker 00:
I'm going to begin with Dr. Gonzalez's argument that the district court erred in not granting her motion for leave to amend.

[00:02:03] Speaker 00:
The district court's decision was premised on the Ninth Circuit's decision, Johnson versus Mammoth recreations, which held that after the

[00:02:12] Speaker 00:
Scheduling orders deadline for many pleadings has passed any motion for leave to amend must also comply with rule 16 standard as well as rule 15 standard.

[00:02:21] Speaker 00:
Now the Johnson court generally does not explain its reason for that it sort of presumes that any sort of motion for amend or amendment to the pleading necessarily has to amend the schedule despite the fact that the pleading and the scheduling order are two different documents.

[00:02:36] Speaker 00:
So we have to look for a reason for that before we can begin.

[00:02:40] Speaker 00:
And I'm going to argue that Rule 15 does not present any reason for Rule 16's standard to apply because Rule 15 presents a comprehensive scheme that addresses when pleading should be amended.

[00:02:52] Speaker 00:
Now, Rule 15 has three relevant subsections.

[00:02:57] Speaker 00:
It has subsection A, which addresses amendment as a matter of right and when leave is needed before trial.

[00:03:06] Speaker 00:
We have subsection B, which amendment at trial or after trial.

[00:03:11] Speaker 04:
And we also have supplemental pleading, which is when facts arise outside 15 doesn't displace rule 16's authority to set schedules and deadlines.

[00:03:21] Speaker 00:
Correct.

[00:03:22] Speaker 04:
If those deadlines are passed as it was here, then rule 16 says good cause has to be shown that presumes that you need to amend the scheduling order to amend a plea.

[00:03:33] Speaker 00:
And

[00:03:34] Speaker 02:
I don't believe our standard of review for this issue.

[00:03:39] Speaker 00:
So this is a abusive discretion review, I believe, but because Dr. Gonzalez is raising a legal issue, you essentially review that to no vote.

[00:03:50] Speaker 02:
What is your what is your best authority for the fact that we would review this in any way to no vote?

[00:03:56] Speaker 00:
Sorry?

[00:03:57] Speaker 02:
What is your best authority for arguing that we would review any portion of this particular claim of yours, de novo?

[00:04:05] Speaker 00:
Oh, that this is an error of law and therefore is a question of law that the court reviews de novo.

[00:04:11] Speaker 01:
But the compliance with the scheduling order is a discretionary decision that we give district court judges, isn't it?

[00:04:21] Speaker 00:
I believe that is correct, Your Honor.

[00:04:22] Speaker 00:
The District Court has discretion in setting the scheduling order and whether to amend it.

[00:04:27] Speaker 00:
However, the presumption that you necessarily have to alter the scheduling order before you can amend a pleading just because the scheduling order deadline has passed, I don't see any basis for that in Rule 15 or Rule 16.

[00:04:39] Speaker 00:
Right.

[00:04:39] Speaker 02:
So my point in asking you about the standard of review is here, the District Court determined that there was a failure to show diligence.

[00:04:47] Speaker 02:
That determination must be reviewed.

[00:04:50] Speaker 04:
I'm not sure I understand why you think rule 16 doesn't apply when rule 16 authorizes a scheduling order, a scheduling order was issued here and it set a deadline of August 2020 to amend the pleadings and then

[00:05:20] Speaker 04:
She seeks to file the amended complaint in May of twenty one, which is after the deadline set.

[00:05:27] Speaker 04:
And so therefore it requires an amendment of the schedule, which rule sixteen says requires a showing of good cause.

[00:05:34] Speaker 04:
Where am I making a mistake?

[00:05:36] Speaker 00:
The gap is that amendment of a scheduling order is separate from amendment of a pleading.

[00:05:42] Speaker 04:
the court has issued a scheduling order has a deadline for amending pleadings then you have two you have you know you can have two rules that are implicated in the same you know we have rules in in uh about discovery and those who are governed by other rules as well but it doesn't take them out of rule 16 to have deadlines i don't disagree with you your honor i think the it's a factual question that that dr gonzalez is only seeking amendment of her pleading rather than the scheduling order

[00:06:10] Speaker 00:
So you have to graph rule 16 onto rule 15 standard in that instance.

[00:06:14] Speaker 01:
I just can't imagine a world where, as an appellate court, we would have to be reviewing all of the decisions de novo on amendments of the scheduling order.

[00:06:26] Speaker 01:
I mean, that would be a nightmare.

[00:06:30] Speaker 00:
Perhaps I misspoke when I stated de novo review.

[00:06:33] Speaker 00:
What I meant is that this is a question, Dr. Gonzalez is appealing the court's application of this rule that rule 16 even has to apply.

[00:06:41] Speaker 00:
That's a question of law, whether rule 16 applies when you move to amend.

[00:06:45] Speaker 00:
So I acknowledge that rule 15 is generally an abuse of discretion standard.

[00:06:50] Speaker 00:
I'm saying that because the question specifically presented on appeal is a legal question and a pure legal question, that you would review that legal question de novo.

[00:06:59] Speaker 00:
I apologize for any misunderstanding.

[00:07:01] Speaker 00:
So the reason why you have those separate documents, the scheduling order and the amended pleading, and why there's no reason that you necessarily need to amend the scheduling order to amend a pleading is because Rule 15 has this very comprehensive scheme that addresses amendment of pleading before trial and after trial.

[00:07:22] Speaker 00:
Now as a logical

[00:07:23] Speaker 00:
basis, you realize that the scheduling orders deadline for amending pleadings is going to pass at some point.

[00:07:28] Speaker 00:
It's a mandatory requirement entered in every case pursuant to Rule 16.

[00:07:33] Speaker 00:
That said, we have a separate standard under Rule 15 that you can amend after trial.

[00:07:40] Speaker 00:
And importantly, Rule 15b to states in part.

[00:07:53] Speaker 00:
When an issue not raised by the pleadings is tried by the parties to express or implied consent, it must be treated in all respects as if raised by the pleadings.

[00:08:00] Speaker 00:
But failure to amend does not affect the result of the trial of that issue.

[00:08:03] Speaker 02:
Council, I'm going to ask you to switch gears here for a moment on the issue of the acknowledgment of the indebtedness.

[00:08:10] Speaker 02:
I'm curious to know why the May 2019 email exchange wasn't admitted as an exhibited trial.

[00:08:17] Speaker 00:
It was a tactical decision, Your Honor.

[00:08:19] Speaker 00:
We were evaluating the evidence.

[00:08:21] Speaker 00:
We decided that the cleaner and simpler document to use was simply the June 2019 offer letter.

[00:08:34] Speaker 00:
Returning to Dr. Gonzales' discussion of the motion for leave to amend, aside from Rule 16 providing this comprehensive standard that

[00:08:42] Speaker 00:
doesn't address scheduling orders, you also have the issue that there's going to be an inevitable conflict between Rule 16 scheduling order and the good cause requirement and amendment of pleadings after trial, right?

[00:08:52] Speaker 00:
That there's always going to be some issue there.

[00:08:54] Speaker 00:
So you're going to have to reconcile these two standards.

[00:08:57] Speaker 00:
You don't even need to reach that far because Dr. Gonzalez' appeal, which was not, sorry, her motion to amend, which was after the scheduling orders deadline, but not before the trial, had that, because just as so requires standard,

[00:09:14] Speaker 00:
And under that standard, the party opposing amendment bears the burden.

[00:09:18] Speaker 00:
And importantly, that amendment cannot be denied solely because of delay.

[00:09:24] Speaker 00:
This is the DCD programs case 833 F2D.

[00:09:29] Speaker 00:
I don't have the exact site.

[00:09:33] Speaker 00:
On the contrast, rule 16 places the burden on the party seeking amendment.

[00:09:37] Speaker 00:
And it can be denied solely because of delay.

[00:09:39] Speaker 00:
So those are just mutually inconsistent standards.

[00:09:41] Speaker 00:
So if Dr. Gonzalez was going to succeed on her motion, she would have had to satisfy Rule 16, the burden placed on her.

[00:09:48] Speaker 00:
Meanwhile, the network would have never been able to satisfy its burden under Rule 15.

[00:09:52] Speaker 00:
So I just don't see why you would impose those two standards when they're going to conflict with one another.

[00:09:57] Speaker 00:
Because essentially, by saying the scheduling order in Rule 16 are always going to apply, you're going to invalidate Rule 15, which doesn't make sense because the scheduling order is going to be in every case.

[00:10:11] Speaker 00:
Turning to Dr. Gonzalez's other arguments on appeal, retaliatory termination claim.

[00:10:17] Speaker 00:
There are three kind of key thoughts to keep in mind.

[00:10:22] Speaker 00:
First is that the network had this future funding rationale, which it's provided absolutely no evidence of.

[00:10:27] Speaker 00:
The district court noted that it was distinct, that the basis for that rationale were fundamentally distinct from the rationales that the network tried to paint as the same rationale.

[00:10:38] Speaker 00:
And that raises the question under the Via Remo case, whether the network retracted it.

[00:10:43] Speaker 00:
Now, there's a jury question on that simply because the network provided absolutely no evidence in support of it and instead pivoted to different reasons.

[00:10:50] Speaker 00:
So having established that, we look at that when the network asserted that rationale.

[00:10:53] Speaker 00:
That was the September 2019 phone call.

[00:10:56] Speaker 00:
The very first time that the network informed Dr. Guttenzal of its termination decision.

[00:11:02] Speaker 00:
And at that time, the termination decision was final.

[00:11:05] Speaker 00:
So we had to ask ourselves, why did the network come up with a faulty reason when it purportedly had all these others?

[00:11:12] Speaker 00:
And that creates the causation question that gets to why the Sarni case really matters here, because in Sarni, the employer

[00:11:20] Speaker 00:
had knowledge of existing prior issues.

[00:11:23] Speaker 00:
The employee made a complaint, and then the employer decided that those were fire offenses.

[00:11:27] Speaker 00:
And that's the real question here, is that Dr. Gonzalez made her arguments that, or sorry, she complained, and then all of a sudden the network changed its position on all these other circumstances and found a reason to terminate her.

[00:11:40] Speaker 00:
And the reason why a question of fact exists on all that is because the pretext inquiry is focused on the reason for the network's decision.

[00:11:47] Speaker 02:
So it may have found that there were... Didn't you waive your argument about the motivating factor standard?

[00:11:53] Speaker 00:
No, Your Honor.

[00:11:54] Speaker 00:
The motivating factor standard was affirmatively argued by Dr. Gonzalez to apply during the summary judgment briefing.

[00:12:02] Speaker 00:
The district court misapplied that standard.

[00:12:05] Speaker 01:
Can you point us to that?

[00:12:07] Speaker 01:
I don't know if I found that.

[00:12:11] Speaker 00:
At some point, maybe in rebuttal, you can.

[00:12:13] Speaker 00:
You want to where Dr. Gonzalez raised the motivating factor statement at summary judgment?

[00:12:18] Speaker 02:
No, in front of the district court.

[00:12:19] Speaker 00:
Oh, in front of the district court.

[00:12:27] Speaker 00:
So that motivating factor standard, as stated in Czarny, is that you can have a substantial motivating factor, but not the sole reason for the termination.

[00:12:36] Speaker 00:
So that also gets to the point that even if the network found these reasons to be valid reasons, you still have to look at why they asserted them in the first place.

[00:12:45] Speaker 00:
The record is replete with numerous instances of the network having bases but then proceeding to not take any action.

[00:12:52] Speaker 00:
In fact, taking action contrary to their belief that they thought those were terminal bases.

[00:12:57] Speaker 00:
Most notably, the June 2019 offer letter itself.

[00:13:01] Speaker 00:
So considering the fact that this financial stewardship, these

[00:13:06] Speaker 00:
past funding rationales already existed at that time, the fact that the network is now asserting them, having presented an offer letter after knowing they existed, just fundamentally begs the question of why was it a fireable offense then?

[00:13:19] Speaker 00:
And in fact, we were willing to contract with Dr. Gonzalez, but after she complained, suddenly it's a fireable offense.

[00:13:30] Speaker 00:
So Dr. Gonzalez also raises the issue that if she presents pretext as to some of the network's rationales, then there is a general question of credibility.

[00:13:38] Speaker 00:
I think that issue is heightened by the fact that the network is relying on generally past events that had occurred prior to the termination decision, as you would expect.

[00:13:48] Speaker 00:
However, they didn't raise those as fireable offenses until after Dr. Gonzalez terminated her.

[00:13:53] Speaker 00:
And then you have to look at the question that when they had the opportunity to assert those reasons, they instead made up the future funding rationale for which they have no basis, which cast out on their assertion of all those other after the fact defenses.

[00:14:06] Speaker 00:
And this is kind of gets the real key faulty issue in the district court's logic.

[00:14:13] Speaker 04:
I thought I'd heard you said you wanted to save eight minutes for a bottle, because it looks like you're within that time.

[00:14:18] Speaker 04:
You can keep going.

[00:14:19] Speaker 04:
It's your time.

[00:14:20] Speaker 00:
No, thank you, Your Honor.

[00:14:22] Speaker 02:
I, for one, would like you to address the focus order that was provided by the court.

[00:14:28] Speaker 00:
Certainly, Your Honor.

[00:14:29] Speaker 00:
So, Dr. Gonzalez's position is that the network's appeal of summary judgment presents a sufficiency of the evidence question.

[00:14:38] Speaker 00:
In fact, the headlines or the headings for their arguments, in fact, say, this is Dr. Gonzalez's, the May 29th... Do you agree it's barred by Ortiz?

[00:14:47] Speaker 00:
Yes, that would be my position.

[00:14:49] Speaker 00:
I would also add that Ortiz has mentioned that... Well, sorry.

[00:14:54] Speaker 00:
This, the issue of acknowledgement of the just debt went to trial regardless.

[00:14:59] Speaker 00:
So that factual record has been developed.

[00:15:01] Speaker 00:
There's no reason why changing, reversing decision at summary judgment would have any impact on that.

[00:15:06] Speaker 00:
There's just, it wouldn't even be issue preclusion.

[00:15:09] Speaker 00:
So I'll reserve the rest of my time.

[00:15:11] Speaker 00:
All right.

[00:15:12] Speaker 04:
Thank you, counsel.

[00:15:13] Speaker 04:
So we'll hear next from Mr. Leonhart.

[00:15:18] Speaker 03:
Good morning, Your Honor.

[00:15:19] Speaker 03:
May it please the Court.

[00:15:20] Speaker 03:
My name is Shank Slunhart.

[00:15:21] Speaker 03:
I'm from the law firm of Sanders and Parks.

[00:15:23] Speaker 03:
With me is my colleague, Vincent Miner.

[00:15:25] Speaker 03:
We're counsel for the ABBA-LEE and the cross-appellant in this matter, the U.S.

[00:15:29] Speaker 03:
Human Rights Network.

[00:15:31] Speaker 03:
Let me start by addressing the issue with a focus order.

[00:15:35] Speaker 03:
This Court can and should review the denial of summary judgment.

[00:15:38] Speaker 03:
I know that that is an unusual.

[00:15:41] Speaker 04:
How can that possibly be true under Dupree and Ortiz?

[00:15:45] Speaker 04:
There is a different factual record

[00:15:48] Speaker 04:
in the summary judgment and that's denied.

[00:15:52] Speaker 04:
And then it goes to trial and there's a different trial record on the issue.

[00:15:57] Speaker 04:
And then there's a JMAW motion with respect to that.

[00:16:03] Speaker 04:
Exactly what Ortiz and Dupree say is that we don't care about the summary judgment record, which may have been different.

[00:16:12] Speaker 04:
It's superseded by the trial record.

[00:16:14] Speaker 04:
It's not appealable, not reviewable.

[00:16:17] Speaker 04:
How do you get around that?

[00:16:18] Speaker 03:
So I agree with Your Honor that that is the general rule.

[00:16:21] Speaker 04:
And you seem to be within the general rule.

[00:16:24] Speaker 03:
Well, that we probably disagree with, Your Honor, respectfully.

[00:16:28] Speaker 03:
Our position, Your Honor, is that the denial of the motion for summary judgment on the application of a savings statute, statute of limitations defense, was a pure legal decision.

[00:16:39] Speaker 03:
We've argued that

[00:16:40] Speaker 03:
throughout the case that the judge needs to make that decision as a matter of law.

[00:16:43] Speaker 02:
And so if you look at the Dupree case, which is why you need to hang your hat on this particular argument that I think you're making with respect to the statute of limitations.

[00:16:53] Speaker 02:
If, um, at the Jamal, um, stage you have, um, insufficiency of the evidence based on the failure to have admitted the what appears to me to be a pretty important email, the 2019 email into evidence.

[00:17:09] Speaker 02:
And so

[00:17:10] Speaker 03:
uh... relying entirely on that that jim all uh... record i think you get to the same i don't disagree your honor and i i don't want to give this court indication that it's uh... binary uh... position that is one of the other week we argued obviously both we did file a rule fifty b motion our position is as your honor noted that there were the evidence presented at trial was insufficient because

[00:17:33] Speaker 03:
the appellant failed to introduce the May 19 email, which contained the I'm sorry, getting you up to speed language, which Judge Lanza had identified as reflecting the justness component or the moral obligation.

[00:17:46] Speaker 03:
So absolutely, Your Honor.

[00:17:48] Speaker 03:
I think as an academic exercise, I believe that you can decide this at the summary judgment level under the Dupree case, but I agree that

[00:18:00] Speaker 04:
you can and also did you decide on a legal question that's a legal question where the facts matter and the facts that are in the record map to the determination of that legal question.

[00:18:11] Speaker 03:
Yes, your honor.

[00:18:12] Speaker 04:
Ultimately, it's summary judgment where the district court can't make factual determinations.

[00:18:18] Speaker 04:
It's just an assessment of whether or not there is sufficient evidence under the legal standard to to meet the standard.

[00:18:27] Speaker 04:
And so the

[00:18:30] Speaker 04:
even though it's a question of law, ultimately, it's still governed by Ortiz.

[00:18:34] Speaker 03:
Sure, Your Honor.

[00:18:35] Speaker 04:
And maybe you tell us about why you think the J-Mol issue.

[00:18:39] Speaker 04:
Sure.

[00:18:39] Speaker 03:
Sure, Your Honor.

[00:18:40] Speaker 03:
I think the J-Mol issue, as Judge Desai has pointed out, the evidentiary defect at trial was the failure to include the critical email that the trial court had relied upon in denying the summary judgment motion, and that was the May

[00:18:57] Speaker 03:
uh... twenty uh... nineteen email uh... that's uh... volume three extra record four seventy six uh... that's the the email that had the apology language in it again our position is that even that email was not enough but certainly when you strip uh... the other writing that is cited which is the conditional job offer uh... away from the maith uh... nineteen email you lose the justice or the moral obligation piece of it

[00:19:26] Speaker 03:
And what you're left with is simply a letter stating, we'd like to offer you a job.

[00:19:31] Speaker 03:
If you'd like to take that job, please sign below and accept that offer.

[00:19:35] Speaker 03:
And the evidence in the trial record was undisputed that the plaintiff never accepted it, not by signature, not by phone call, not by anything.

[00:19:43] Speaker 03:
So our position is that.

[00:19:45] Speaker 03:
the evidence on trial was deficient because it didn't satisfy those elements you need to establish that saving statute under 12508, right, which is that there is a sufficient identified obligation, that it contains a promise, and that it contains an expression of the justice of the debt.

[00:20:05] Speaker 03:
And the job offer letter does not contain those particular elements.

[00:20:10] Speaker 03:
And so that was

[00:20:11] Speaker 03:
The basis for our rule 50 be motion and the base for our appeal on that is that the evidence should have warranted a judgment as a matter of law on that issue.

[00:20:20] Speaker 03:
Your honor, let me address.

[00:20:24] Speaker 03:
Just briefly, the issue of the motivating factor.

[00:20:29] Speaker 03:
I agree with this court that that was not raised to the trial court.

[00:20:34] Speaker 03:
It was not raised in a motion for reconsideration.

[00:20:36] Speaker 03:
It was not raised in the Rule 59 motion for new trial.

[00:20:40] Speaker 03:
The issues that were raised at the Rule 59 stage in the motion for new trial had to do with whether certain evidence at trial demonstrated evidence of pretext so that the causation standard

[00:20:52] Speaker 03:
was never applied.

[00:20:54] Speaker 03:
Secondarily, this trial court didn't grant summary judgment on causation.

[00:21:00] Speaker 03:
It's not a causation case.

[00:21:01] Speaker 03:
It's a pretext case.

[00:21:03] Speaker 03:
And the pretext analysis, which both sides agree here, is governed by McDonnell Douglas.

[00:21:10] Speaker 03:
And Arizona has applied McDonnell Douglas to AEPA claims, which is what this claim was.

[00:21:19] Speaker 03:
You know, if you look to the Burdine case, the US Supreme Court, you know, that gives us the roadmap for how to look at an appellant like this that's going to try to prove pretext in the face of legitimate non-discriminatory reasons based on circumstantial evidence.

[00:21:37] Speaker 03:
And it's got to be specific and it's got to be substantial.

[00:21:40] Speaker 03:
And so the court went through and analyzed each of the legitimate reasons that the network provided.

[00:21:47] Speaker 03:
and demonstrated that plaintiff did not rebut those with specific and substantial evidence.

[00:21:55] Speaker 03:
The Czarny case that's referenced strongly by the appellant is not instructive.

[00:22:04] Speaker 03:
For one, it's an intermediate unpublished appellate decision in the state courts here.

[00:22:09] Speaker 03:
And number two, it cites and relies specifically on the United States Supreme Court precedent and this court's precedent.

[00:22:15] Speaker 03:
So I would encourage this court to look for the answers to the questions on whether pretext has been demonstrated by looking to this court's decisions that flow from Burdine.

[00:22:27] Speaker 03:
The Villarriamo case is one.

[00:22:29] Speaker 03:
The Colgan case is another.

[00:22:31] Speaker 03:
And we cited those in the brief and the trial court addressed those in the decision.

[00:22:38] Speaker 03:
The issues pertaining to the allegations of shifting reasons

[00:22:44] Speaker 03:
To be honest, Your Honor, and we argued this at the trial court, they're largely semantical.

[00:22:50] Speaker 03:
They're a difference in authorship.

[00:22:54] Speaker 03:
So you have a board member that writes an email that says, one of the reasons that we're moving on from this executive director is due to a spate of claims by former employees.

[00:23:06] Speaker 03:
There had been three grievances filed for the appellant, one of which is she terminated

[00:23:12] Speaker 03:
a subordinate who was on maternity leave generating an EOC complaint.

[00:23:17] Speaker 03:
So that was referred to as a spate of claims.

[00:23:18] Speaker 03:
And then what's being argued here is that when my law firm filed a motion for summary judgment and we put a heading in there and we said one of the legitimate reasons for the grievance, this was for the grievances, that that wasn't the exact same language used in the spate of claims.

[00:23:32] Speaker 03:
And the trial court properly found that not to be a meritorious argument.

[00:23:38] Speaker 03:
The shifting rationale or the shifting reasons would be

[00:23:40] Speaker 03:
fundamentally different reasons than were presented, not just because one author describes this this way and one author describes it that way.

[00:23:51] Speaker 03:
So again, our position is that the trial court did properly evaluate all the issues related to pretext and determined that those did not reflect that specific and substantial evidence that Burdine requires and this court requires.

[00:24:11] Speaker 03:
you know as it pertains to the motion to amend issue

[00:24:15] Speaker 03:
You know, what's being argued here is a very novel argument that sounds like is asking this court to reshape the rules of civil procedure and decades of precedent in the Ninth Circuit.

[00:24:28] Speaker 03:
I don't think the court needs to even entertain that analysis to make a decision here.

[00:24:32] Speaker 03:
If you read the judge's order denying the motion to amend, I would submit to you that it absolutely complies with rule 15 as well.

[00:24:39] Speaker 03:
It cites

[00:24:41] Speaker 03:
the undue delay it cites, which is a ground under Rule 15, of course, to deny.

[00:24:49] Speaker 03:
And again, as this Court has pointed out, it is an abuse of discretion standard.

[00:24:54] Speaker 03:
And really, the issue of prejudice is a little bit of a misnomer here in some of the arguments that the appellant is making, because if you look at Rule 15, it talks about prejudice, but it also talks about bad faith, and it also says, or undue delay.

[00:25:10] Speaker 03:
So it's kind of an or situation.

[00:25:13] Speaker 03:
The Lockheed Martin case, which we cited, is very instructive.

[00:25:16] Speaker 03:
It's very similar facts.

[00:25:18] Speaker 03:
That's 194, Fed 3rd, at 986.

[00:25:22] Speaker 03:
And again, we would submit to Your Honors that, as it pertains to that issue,

[00:25:29] Speaker 03:
that the court absolutely complied with the rules, whether it's under Rule 16 or Rule 15 under abusive discretion.

[00:25:34] Speaker 04:
Which corresponds to his point that, you know, if Rule 16 can be invoked to set hard pretrial deadlines for amendment of the pleadings, that that renders nugatory the whole provision of Rule 15 about amendment during trial.

[00:25:50] Speaker 03:
I understand that the framing of that argument, I guess my objection to it would be, number one, it's not been recognized by any court in the United States that I'm aware of, nor the United States Supreme Court or any sister circuit or this court.

[00:26:03] Speaker 03:
This court has continually applied the Johnson rule from 1992 for decades.

[00:26:09] Speaker 03:
And I think that if you go back and read Johnson and you understand the basis for it, it's absolutely logical.

[00:26:15] Speaker 03:
if you're going to amend the scheduling order, you have to demonstrate the good cause to do that.

[00:26:21] Speaker 03:
The other reason that I don't think the court needs to really entertain any of these issues about the interplay of Rule 15 and 16 is that this appellant chose, upon the denial of the motion to amend, to refile that action.

[00:26:36] Speaker 03:
So she could have

[00:26:38] Speaker 03:
waited, had her trial, come before this court and said, my motion to amend was denied.

[00:26:43] Speaker 03:
It was abuse of discretion.

[00:26:44] Speaker 03:
That's not what she did.

[00:26:45] Speaker 03:
She went and filed a new lawsuit.

[00:26:48] Speaker 03:
That lawsuit was then dismissed with prejudice on Rule 12b6 and

[00:26:53] Speaker 03:
for federal state of claim, and then that was appealed to this court, and that appeal was abandoned.

[00:27:00] Speaker 03:
And so for that other reason, there's no way to revive that claim that's been dismissed with prejudice.

[00:27:06] Speaker 03:
That judgment is final.

[00:27:08] Speaker 03:
You can't revive that claim through a motion to amend in this case.

[00:27:11] Speaker 03:
So that's another separate reason why we don't need to entertain the Rule 15 or Rule 16 type analysis.

[00:27:20] Speaker 03:
The final thing I want to touch on, and I'll reserve the

[00:27:23] Speaker 03:
five minutes of my time is uh... you know when it comes to the issue of the acknowledgement of the debt uh... go back and forth on cross appeals one block of time now well i'm not going to reserve.

[00:27:36] Speaker 04:
It's not like the briefing.

[00:27:37] Speaker 03:
Thank you for the clarification your honor.

[00:27:39] Speaker 03:
I'll keep trucking.

[00:27:40] Speaker 04:
Tell us everything you want us to hear now.

[00:27:42] Speaker 03:
I'll keep trucking thank you uh... so yeah on the issue of uh...

[00:27:46] Speaker 03:
the cross-appeal.

[00:27:48] Speaker 03:
We talked a little bit about already the acknowledgement of the dead, but there's another element to the cross-appeal, and that has to do with the continuous violation doctrine.

[00:27:56] Speaker 03:
At trial and at summary judgment, the court, although it was really more at trial that this came up in the post trial, or I guess a final trial briefing, this issue of, okay, if the court were to find that the acknowledgement of the debt was insufficient, would there be an accrual continuing for every pay period such that the statute of limitations would only bar the first three months or whatever it was before the one-year mark where she filed her lawsuit?

[00:28:25] Speaker 03:
And I wanted to touch on that briefly because that is in our our briefings.

[00:28:30] Speaker 03:
The continuous violation doctrine is a doctrine that has been applied to easily divisible type contracts.

[00:28:38] Speaker 03:
The seminal case is a case called builder supply had to do with trucking different loads to different zones in the city.

[00:28:46] Speaker 03:
And depending on what zone you went into, the truck got paid a certain load calculation.

[00:28:52] Speaker 03:
And the facts of that case were that there was a number of years where the one delivering the loads or the one paying, I can't remember which, it's not material, was paying the wrong rate.

[00:29:04] Speaker 03:
And that went on for many years.

[00:29:05] Speaker 03:
And the court looked at that and said, well, we're not going to bar the whole thing, even though you knew or should have known years ago that you were getting charged the wrong rate or paying the wrong rate.

[00:29:16] Speaker 03:
This is an easily divisible thing.

[00:29:17] Speaker 03:
And each time the load goes into here, it's a new breach.

[00:29:21] Speaker 03:
That's the primary basis by which the court found here that there was a continuous violation.

[00:29:26] Speaker 03:
Our position is that that has never been applied in employment context.

[00:29:32] Speaker 03:
The issue that was at issue with the breach of contract related to an oral contract that the jury found was made in December, January of 1819.

[00:29:43] Speaker 03:
And the ideal was that starting January 1, the appellant would become a full-time employee entitled to benefits.

[00:29:51] Speaker 03:
And the evidence was undisputed at summary judgment at trial that the plaintiff was well aware, starting January 1, 2, 3, 4, all the way that she was not a full employee and was not receiving all of her benefits.

[00:30:04] Speaker 03:
So our position is that that is a breach at that point in time.

[00:30:08] Speaker 03:
And the fact that

[00:30:10] Speaker 03:
that she continued to work there for 11 months, which she did, continuing to be paid as an independent contractor, does not create a separate breach every pay period.

[00:30:21] Speaker 03:
The breach was in the failure to honor the oral agreement.

[00:30:24] Speaker 03:
The case that we found or we think is the most applicable here, because again, there really isn't a lot of direction on this, is a case from the district court here in Arizona that had to do with an oral promise to make somebody a vice president.

[00:30:40] Speaker 03:
And so there was an oral promise that, you know, these certain conditions were met, we'll make you vice president.

[00:30:46] Speaker 03:
Ultimately, that never happened.

[00:30:47] Speaker 03:
That person was never made a vice president.

[00:30:50] Speaker 03:
And then it went beyond the one-year statute of limitations they filed in the court in that case.

[00:30:56] Speaker 03:
That's called the day case.

[00:30:58] Speaker 03:
determined that that was time barred.

[00:31:01] Speaker 03:
So that is the continuous violation doctrine.

[00:31:05] Speaker 03:
Unless the court has any other questions for me.

[00:31:06] Speaker 02:
I have just a quick question on your argument with respect to builder supply.

[00:31:09] Speaker 02:
I know you're arguing that it did not, that that case did not arise in the context of an employment issue, but didn't builder supply cite several cases from other jurisdictions that applied the continuous violation doctrine to wage payment claims?

[00:31:26] Speaker 03:
Yeah, I think the your honor, that's a good question.

[00:31:29] Speaker 03:
And I do recall that there there may be, um, decisions that would apply it.

[00:31:35] Speaker 03:
Um, and there's been, I think one of the ones the trial court relied on was the domestic case.

[00:31:40] Speaker 03:
Um, but in this context, we've argued those are distinct.

[00:31:42] Speaker 03:
So those are hourly cases.

[00:31:44] Speaker 03:
So, you know, there's this principle and employment, uh, that and days wage for days work.

[00:31:50] Speaker 03:
right.

[00:31:51] Speaker 03:
That's those cases talk about that in the context of an hourly employee, meaning, you know, the idea is that, you know, you're an at will employee, you work here today, you get paid for today, there's no guarantee you're working here tomorrow.

[00:32:02] Speaker 03:
That's the basis for that type of analysis.

[00:32:07] Speaker 03:
We think this case is distinct.

[00:32:08] Speaker 03:
This is not an hourly employee.

[00:32:09] Speaker 03:
This was the highest ranking executive of the network.

[00:32:13] Speaker 04:
Isn't the logic of it applicable here?

[00:32:16] Speaker 04:
Sorry, I didn't hear you.

[00:32:17] Speaker 04:
Why isn't the logic of it applicable here?

[00:32:20] Speaker 03:
well it because in this situation the decision uh... to or that

[00:32:26] Speaker 03:
The failure to make the appellant the full-time employee was a singular event.

[00:32:32] Speaker 03:
It occurred in January when the appellant was not made a full-time employee.

[00:32:36] Speaker 03:
So that's the breach.

[00:32:38] Speaker 03:
There's not a subsequent breach each pay period.

[00:32:42] Speaker 03:
Again, we analogize it to the Ankala case, which is an unpublished case, but it's related to the management of a golf course.

[00:32:51] Speaker 03:
You weren't managing the golf course properly.

[00:32:53] Speaker 03:
You're not managing properly on day one, day two, day three, day four.

[00:32:56] Speaker 03:
It doesn't create a separate individual breach.

[00:32:59] Speaker 03:
The breaches when you learn that's not being properly managed.

[00:33:02] Speaker 03:
And that's the basis for our position that here.

[00:33:05] Speaker 03:
It's more akin to the vice president or the golf course management.

[00:33:08] Speaker 03:
It's a singular event where the plaintiff knew as of January that they were not being put in this full-time position as a permanent executive director, and it was incumbent upon her at that point in time to bring that action within one year.

[00:33:25] Speaker 03:
Any other questions?

[00:33:27] Speaker 03:
Thank you for your time.

[00:33:29] Speaker 04:
All right.

[00:33:29] Speaker 04:
Thank you, counsel.

[00:33:30] Speaker 04:
We'll hear a rebuttal.

[00:33:39] Speaker 00:
I'd like to return to Judge Desai's question about where Dr. Gonzales raised at summary judgment the applicable standard causation.

[00:33:46] Speaker 00:
That was 2ER244.

[00:33:48] Speaker 00:
It's actually raised in dispute, or sorry, to dispute the network's position that he bought for causation standard applied.

[00:33:55] Speaker 00:
So this was squarely before the court.

[00:33:59] Speaker 01:
Wait, I thought you argued it in the motion for reconsideration.

[00:34:07] Speaker 01:
We argued it in the summary judgment motion.

[00:34:11] Speaker 01:
I thought that in your brief, your yellow brief at page three, you said Dr. Gonzalez did not waive her argument by not raising it at summary judgment.

[00:34:23] Speaker 01:
Oh, sorry.

[00:34:27] Speaker 00:
That is specific to the court's misapplication of the motivating factor standard, which only happened because the court misapplied it.

[00:34:36] Speaker 00:
That's what you intended to say there.

[00:34:38] Speaker 00:
Yes, yeah.

[00:34:38] Speaker 00:
The court misapplied it so Dr. Gonzalez could not have raised it at summary judgment.

[00:34:42] Speaker 00:
So she did not waive it by not raising it at summary judgment because she could not have.

[00:34:46] Speaker 00:
I see your argument.

[00:34:47] Speaker 00:
Thank you.

[00:34:49] Speaker 00:
Returning to opposing counsel's continuous violation argument, I agree with Judge Desai that the Builders Supply Court cites employment cases from out of state.

[00:35:04] Speaker 00:
There's also

[00:35:06] Speaker 02:
But what do you say to the argument that your friend on the other side made that it's still distinguishable and it shouldn't apply in this context to the highest executive of the organization?

[00:35:16] Speaker 00:
I would say that there's no foundation for the network's argument because this was an at-will employment relationship that

[00:35:22] Speaker 00:
A day's work created the new contract.

[00:35:25] Speaker 00:
So every day there was a new contract.

[00:35:27] Speaker 00:
I know that's very much a kind of legal fiction, but it is the way that the law works.

[00:35:31] Speaker 00:
And that's what matters because accrual of a breach of contract cause of action requires both the contract, the breach and damages.

[00:35:39] Speaker 00:
And Dr. Gonzalez certainly didn't have any damages until the day that she actually performed the work and would have been entitled to those benefits.

[00:35:45] Speaker 00:
Now, regarding the Day versus LSI case, that case just doesn't even apply.

[00:35:49] Speaker 00:
It doesn't address the continuing violation whatsoever.

[00:35:52] Speaker 00:
In fact, the employee in that case didn't even oppose the statute of limitations.

[00:35:57] Speaker 00:
So the decision just has very little relevance.

[00:36:00] Speaker 00:
Regarding the Uncala case, that case one was golf course management.

[00:36:06] Speaker 00:
But separately, it's also nine.

[00:36:11] Speaker 00:
a Ninth Circuit unpublished decision, so it's not binding, and it's definitely not indicative of where Arizona law would be, particularly on the issue of at-will employment.

[00:36:19] Speaker 00:
The DeMass case really sets that up very clearly, that at-will employment relationship, which this was, they don't contest that, is formed every day, and because of that, you have a new contract every day.

[00:36:36] Speaker 00:
Now, regarding the acknowledgement of the just debt,

[00:36:40] Speaker 00:
I'm going to focus on the June 2019 offer letter, and I'm going to be very clear that the network, as we have two diametrically opposed factual situations here, the network believes that there was no oral agreement, and therefore this June offer letter was just whole cloth a new offer letter.

[00:37:04] Speaker 00:
If that was true, why is it dated January 2019?

[00:37:08] Speaker 00:
There is absolutely no explanation for that.

[00:37:10] Speaker 00:
The only reasonable explanation for that is that the network realized that they had an obligation to employ Dr. Gonzalez as of January 2019.

[00:37:18] Speaker 00:
Now, there's a factual dispute about whether or not there was an oral agreement.

[00:37:22] Speaker 00:
The jury found in Dr. Gonzalez's favor on that issue, but the network still contested.

[00:37:26] Speaker 00:
But regardless, if Dr. Gonzalez viewed that there was an oral agreement and there's no other explanation for the January 2019 language, then that's a reference back to her oral agreement.

[00:37:36] Speaker 00:
Secondarily,

[00:37:37] Speaker 00:
I'm going to direct the court to the Henry Weaver case, which is a decision by this court that addressed the justeness element of the 12-508 requirements.

[00:37:49] Speaker 00:
It says that it's really a note when you see its sort of situation.

[00:37:52] Speaker 00:
There doesn't have to be anything there.

[00:37:54] Speaker 00:
And in particular, Weaver, as well as Slanky, more or less decide that the just element exists because the opposing side does not push back.

[00:38:04] Speaker 00:
So the fact that the network has put forth this document stating

[00:38:07] Speaker 00:
Yeah, this is like the terms of your employment, all the benefits you were going to have.

[00:38:12] Speaker 00:
It's backdated to January 19, and there's really no problem.

[00:38:15] Speaker 02:
How could a reasonable juror read so much meaning into the date of the letter?

[00:38:19] Speaker 00:
Well, what other explanation could there be, Your Honor?

[00:38:21] Speaker 00:
I don't believe I'm overreading it, because I can't think of another logical explanation for it.

[00:38:27] Speaker 02:
Well, I mean, I guess part of my difficulty here is that you wouldn't have had to rely on that had you had the May 2019 email.

[00:38:37] Speaker 02:
in evidence.

[00:38:41] Speaker 00:
I mean, according to opposing council position, I would have.

[00:38:44] Speaker 00:
But regardless, I don't see how the absence of the May 2019 letter does anything, because the June 2019 letter contains the required elements.

[00:38:52] Speaker 00:
It's in writing.

[00:38:53] Speaker 00:
It's signed based on the signature or the email.

[00:38:56] Speaker 00:
At least, that's not contested on appeal.

[00:38:58] Speaker 00:
It references the January.

[00:39:00] Speaker 02:
You're talking about the June 2019 email now?

[00:39:03] Speaker 00:
Sorry, the June.

[00:39:04] Speaker 00:
Well, that's

[00:39:06] Speaker 00:
I reference that for the signature requirement under 12508, which is not an issue in the cross appeal.

[00:39:12] Speaker 00:
But that's what was argued at the district court level.

[00:39:17] Speaker 00:
So regarding the reference to the prior agreement, again, there's no other explanation for the January 2019 language.

[00:39:24] Speaker 00:
According to the network's own viewpoint, there had to be a signed written offer letter before any agreement could be formed, which means why is this document backdated to January 19?

[00:39:35] Speaker 00:
Under their own theories of the case, there is no explanation for why it's vaccinated.

[00:39:40] Speaker 00:
Dr. Gonzales offers that the only plausible explanation is because of the oral agreement.

[00:39:46] Speaker 00:
I see that my time is up.

[00:39:47] Speaker 00:
There are no further questions.

[00:39:49] Speaker 04:
All right.

[00:39:49] Speaker 04:
Thank you, counsel.

[00:39:50] Speaker 04:
We thank counsel on both sides for their arguments in this case.

[00:39:55] Speaker 04:
And the case just argued will be submitted.

[00:39:58] Speaker 04:
And this court for this session stands adjourned.

[00:40:14] Speaker 04:
I started this part.