[00:00:01] Speaker 03: Good morning, Honorable Justices of the Court. [00:00:03] Speaker 03: We're judges. [00:00:05] Speaker 04: We're judges. [00:00:06] Speaker 03: Judges of the Court. [00:00:08] Speaker 03: There are two types of claims that may be brought in federal court for breach of a collective bargaining agreement. [00:00:13] Speaker 03: There is the ordinary Section 301 claim, which requires that the employee prove that the employer breached the CBA. [00:00:20] Speaker 01: Sorry, can we back up for just a moment? [00:00:22] Speaker 01: Can you make your appearance on the record, state your name and who you represent, please? [00:00:26] Speaker 03: Apologies. [00:00:27] Speaker 03: Michael McEvoy Amaya, appearing on behalf of Tracy Long. [00:00:30] Speaker 03: Thank you. [00:00:31] Speaker 01: And did you wish to reserve any time for rebuttal? [00:00:34] Speaker 03: Yes, five minutes, please. [00:00:35] Speaker 01: OK, so watch the clock. [00:00:37] Speaker 01: It's not in addition to. [00:00:38] Speaker 01: It's out of your 15 minutes. [00:00:42] Speaker 03: The two types of claims are the ordinary Section 301 claim, which requires that the employee prove the employer breached the CBA and that the employee exhausted the grievance procedures in the CBA. [00:00:51] Speaker 03: There is an exception to that exhaustion requirement, which is the hybrid Section 301 duty of fair representation claim. [00:01:00] Speaker 03: The elements of the hybrid claim do not require exhaustion. [00:01:03] Speaker 03: They require that the employee prove that the employer breached the CBA and the union breached the duty of fair representation. [00:01:11] Speaker 03: This has been the law of the United States and this circuit for six decades. [00:01:18] Speaker 05: So how was there a breach by the union when it was your client that decided not to proceed? [00:01:25] Speaker 03: With regards to the breach issue, the issue is the investigation, number one, also not enforcing certain provisions of the... You can say investigation, but frankly, the evidence seems to indicate that the union local did what it needed to do. [00:01:42] Speaker 05: And then your client said, I don't want to go to mediation, subsequently said, I don't want to go to arbitration. [00:01:50] Speaker 05: apparently did that because of your advice not to do it without an attorney. [00:01:54] Speaker 05: And after it was explained that under the circumstances, an attorney wasn't permitted, she still said, I don't want to do it. [00:02:01] Speaker 05: So how is that a breach by the union? [00:02:05] Speaker 03: Well, number one, the timeline of this is incredibly important. [00:02:10] Speaker 03: She was terminated on the 11th of January of 2020. [00:02:13] Speaker 03: The board of adjustment meeting was held on January 22nd of 2020. [00:02:18] Speaker 03: After, at the Board of Adjustment meeting, she was told by her union representative to get a new job, and between that date and the date we filed the complaint in July of 2020, there was no notice that the grievance was still live. [00:02:35] Speaker 05: So they are proceeding in... They called her about participating in the mediation, and they called her about participating in the arbitration, and there were written emails back and forth. [00:02:47] Speaker 05: So if you're telling me she never heard squat from the union from January on, I'm troubled because it's not consistent with my recollection of what I looked at. [00:02:56] Speaker 03: There were emails between the union and the employer. [00:03:00] Speaker 03: There were not emails to my client stating that they were proceeding with arbitration. [00:03:05] Speaker 03: My client was under the impression that they had just told her to get a new job, and we had no evidence. [00:03:13] Speaker 05: So it wasn't your client that responded by saying, no, I don't want to go to arbitration? [00:03:17] Speaker 03: That was after the statute of limitations had run. [00:03:21] Speaker 03: That was in August of 2020, August 17th. [00:03:24] Speaker 03: The statute of limitations on the claim were from the termination which the court said the statute of limitations ran out. [00:03:31] Speaker 05: Did she or did she not respond by saying she did not want to go to mediation and subsequently that she did not want to go to arbitration? [00:03:38] Speaker 03: She did say that after the lawsuit was filed. [00:03:42] Speaker 05: I'm not sure I understand what difference that makes because the union was entitled to proceed with the grievance and your client was entitled [00:03:48] Speaker 05: with agreements separate and apart from the filing of the lawsuit. [00:03:52] Speaker 03: Again, my client was not aware that they were proceeding and if I had not brought the claim. [00:03:56] Speaker 05: Wait! [00:03:56] Speaker 05: You just acknowledged that she responded saying that she did not want to proceed. [00:04:01] Speaker 05: So at that point she had to be aware that they were proceeding and she said she didn't want to participate. [00:04:08] Speaker 03: Repudiation of the grievance procedure, again, for the hybrid claim is not required. [00:04:12] Speaker 03: With VACA, they established that when the duty of fair representation is breached, and again, this is our case. [00:04:19] Speaker 05: Is the union breached a duty of fair representation? [00:04:23] Speaker 05: Yes. [00:04:23] Speaker 05: And if it did what it needed to do to get up to mediation and to get up to arbitration, and your client said, no, I don't want to participate, I'm having a hard time figuring out how the union could have breached its duty. [00:04:37] Speaker 03: Well in Heinz the [00:04:39] Speaker 03: court held that for the investigation portion of it, the union does not meet its duty of fair representation unless it conducts a reasonable investigation to prove the union member's claim all the way up until the last portion of the grievance procedure. [00:05:00] Speaker 03: In this case, we had the 30B6 witness who testified that he did not investigate the [00:05:07] Speaker 03: basis for the termination which was the, the basis for the termination which was the cash variance. [00:05:15] Speaker 05: Even leaving aside the fact that she's the one that said she didn't want to participate, your brief tells us there was substantial evidence about the union local not investigating and your brief cites nothing [00:05:28] Speaker 05: to support the proposition that you just stated in the brief. [00:05:31] Speaker 05: What evidence supports that proposition and why wasn't it put to us in the brief? [00:05:36] Speaker 03: The 30B6 witness testified repeatedly every time. [00:05:41] Speaker 05: It's not our job to go out and find what you have inside it. [00:05:44] Speaker 05: It wasn't the district court's job either, but that apparently is how you've approached this case. [00:05:48] Speaker 05: So you better be pretty specific in saying what in the record supports the claim which you've made in your brief without any support whatsoever. [00:05:56] Speaker 03: The 30B6 witness repeatedly testified, and this is in the brief, every time I asked them why they didn't request certain documents. [00:06:04] Speaker 03: And the response was consistently, over and over again, we didn't get that far in the investigation. [00:06:09] Speaker 03: We did not get that far in the investigation. [00:06:11] Speaker 03: And then when I levied the final question at that deposition, did you investigate the [00:06:18] Speaker 03: the cash variance discipline. [00:06:21] Speaker 03: The response from the 30B6 witness was no. [00:06:24] Speaker 03: And then in addition to that, we had the two letters that were sent to my client after the complaint was filed that said they were still investigating it. [00:06:33] Speaker 03: So they had not investigated the reason for the termination prior to [00:06:39] Speaker 03: the filing of prior to the Board of Adjustment meeting. [00:06:42] Speaker 03: And so that is why once the 30B6 witness said no to did you investigate the basis for the termination, we believe that we had the claim for lack of investigation. [00:06:56] Speaker 03: And again, because of the exhaustion requirement does not apply to the hybrid claim, [00:07:06] Speaker 03: Repudiation would not apply. [00:07:08] Speaker 03: The same thing happened in Jay. [00:07:10] Speaker 03: In Jay and Carr, the two cases relied on by my opposing counsel and the district court for this matter. [00:07:18] Speaker 03: They follow the same rubric. [00:07:20] Speaker 03: They go and they address the DFR claim. [00:07:23] Speaker 03: They rule that it lacks merit on the evidence. [00:07:28] Speaker 03: And then they state that the 301 claim alone cannot be maintained. [00:07:34] Speaker 03: That didn't happen here. [00:07:35] Speaker 03: Here, the district court applied the exhaustion requirement to the DFR claim without addressing the claims on the merits, the investigation issue, the not enforcing the provision of the CBA that allowed the union to challenge the other live discipline, numerous other things that it didn't do. [00:07:58] Speaker 03: And again, because the court applied the incorrect legal test, the issue on appeal, because it didn't address the DFR claim on the merits, the issue on appeal centers on the incorrect legal test. [00:08:13] Speaker 03: Now, if the court comes back, if it was remanded and the court came back and determined that the DFR claim lacks merit, that would be one thing, but the court did not do that. [00:08:22] Speaker 03: It applied the exhaustion requirement to the hybrid claim, which is not permissible. [00:08:28] Speaker 03: I mean, this has been held in VACA. [00:08:30] Speaker 03: In Sizak v. Omara, [00:08:32] Speaker 03: the Supreme Court held, and I quote, it is beyond caval that a suit against the Union for breach of its duty of fair representation is not subject to the ordinary rule that administrative remedies must be exhausted. [00:08:46] Speaker 03: This court held in Moira V. West Union International that exhaustion is not required, however, when the Union acts in such discriminatory, dishonest, arbitrary, and perfunctory fashion to breach the DFR. [00:08:57] Speaker 03: The Jackson case, this court held the same. [00:09:02] Speaker 03: This has been 60 years of this law, USPS v. Mitchell, Clayton v. automobile workers, Bowen v. USPS. [00:09:09] Speaker 03: The exhaustion requirement, the only time the exhaustion requirement comes in to the hybrid claim is after the court addresses the DFR claim on the merits and that didn't happen here. [00:09:22] Speaker 03: And again, the evidence that we relied on and we were [00:09:26] Speaker 03: We had not had a lot of discovery at the time. [00:09:28] Speaker 03: And so I waited to take the deposition of the union representative. [00:09:33] Speaker 03: And when the union representative said he did not investigate the basis for the termination, we believe that we had the duty of fair representation breached at that time. [00:09:47] Speaker 03: With regards to the sanctions order, the court finds that we acted in bad faith by filing the amended complaint on May 1st, 2020, after we received the text messages where she says no. [00:10:05] Speaker 03: Don't proceed with the arbitration that was filed in February It was granted on March 3rd before we got any of that evidence or we were sent this letter from From the local and I was ordered to file that it was the operative complaint. [00:10:21] Speaker 03: I quite frankly I just didn't [00:10:23] Speaker 03: know how to even proceed with the case without following the court's order by filing it. [00:10:29] Speaker 03: And so following a court order cannot be considered bad faith. [00:10:34] Speaker 03: In addition to that, with regards to the other issues listed in the sanctions order, with regards to the FMLA claim, I have dropped claims by not opposing summary judgment numerous times in numerous cases. [00:10:48] Speaker 03: This has never been an issue. [00:10:50] Speaker 03: until this case, there is no rule on it. [00:10:53] Speaker 03: I was not aware of it. [00:10:54] Speaker 03: And when I was confronted with it at the district court, at the hearing, I was surprised that I informed her that we had dropped the claim because we didn't oppose summary judgment on it. [00:11:05] Speaker 03: With regards to the preference of that, obviously, I will not do that in the future. [00:11:09] Speaker 03: I'll provide a separate specific notice. [00:11:12] Speaker 03: But this was not something that had ever come up previously when I have done that in the past. [00:11:18] Speaker 03: The same thing with raising arguments for the first time in a reply. [00:11:21] Speaker 03: That's a discretionary issue. [00:11:24] Speaker 03: And if the court can consider it discretionary, raising it in a reply can't be a sanctionable offense. [00:11:32] Speaker 03: I mean, the court itself gave them their opportunity to respond and said it was going to consider it. [00:11:38] Speaker 03: The only other issue I believe that they raise [00:11:41] Speaker 03: supposed misrepresentations about the law and an email that wasn't noticed at the hearing that occurred at the hearing. [00:11:48] Speaker 03: I mean sanctions for conduct that occurs at a hearing. [00:11:51] Speaker 03: I mean the court did not conduct the but for causation analysis that is required for such sanctions with regards to the Cromwell. [00:12:01] Speaker 03: And again with regards to the sanctions that were awarded [00:12:07] Speaker 03: to Local 165, it's all rooted in the exhaustion issue. [00:12:12] Speaker 03: The letter that they provided to me asking to dismiss the claim cited two cases that did not relate to the exhaustion requirement that summary judgment was granted on for that claim. [00:12:26] Speaker 03: The cases that the court relied on, Jay and Carr, were not provided until summary judgment. [00:12:31] Speaker 03: And again, both of those claims [00:12:33] Speaker 03: follow that same rubric of evaluating the DFR claim, finding that it lacks merit based on the evidence, and then determining that exhaustion had not been, that exhaustion had not occurred. [00:12:47] Speaker 01: Do you want to reserve any time? [00:12:48] Speaker 03: I will reserve the rest of the two minutes. [00:12:50] Speaker 01: Thank you. [00:12:50] Speaker 01: Thank you. [00:12:54] Speaker 01: All right, counsel understands you're splitting your time. [00:12:56] Speaker 01: Excuse me, Ms. [00:12:58] Speaker 01: Lerma is taking eight minutes and [00:13:00] Speaker 01: Mr. Dowling, seven minutes, so we'll separate the time on the clock. [00:13:04] Speaker 01: All right, there you go. [00:13:05] Speaker 02: Yes, Your Honor. [00:13:08] Speaker 02: Good morning, Your Honors. [00:13:09] Speaker 02: May it please the Court, Luke Dowling, on behalf of Unite Your Bartenders Local 165. [00:13:16] Speaker 02: I'd like to first address my opposing counsel's representations about [00:13:23] Speaker 02: how the duty of fair representation claim works. [00:13:27] Speaker 02: Heinz v. Anchor Motor Freight, which Plaintiff relies on extensively, reaffirmed the principle from Republic Steel versus Maddox that an employee cannot sidestep the grievance machinery provided in the contract and that unless he attempted to utilize the contractual grievance procedures for settling his dispute with the employer, his hybrid lawsuit gets dismissed. [00:13:50] Speaker 02: Vaca describes an exception to the principle from Maddox that excuses the grievance or the employee's failure to exhaust where the union's breach of the duty of fair representation prevents the employee from exhausting the grievance machinery. [00:14:08] Speaker 02: Vaca uses that phrase specifically, prevented by the union's breach of the duty of fair representation. [00:14:14] Speaker 02: For instance, in Vaca itself, the contention was that the union breached the duty of fair representation when it decided not to take the grievance to arbitration. [00:14:24] Speaker 02: In Hines, the allegation was that the union breached the duty of fair representation in how it presented the case at arbitration, preventing the employee from receiving the remedies that they were due. [00:14:35] Speaker 02: But in both cases, and in all of these cases, if you look at them, the employee's failure to obtain relief through the grievance process [00:14:42] Speaker 02: was caused by the union's breach of the duty of fair representation. [00:14:46] Speaker 02: That's just not the case here. [00:14:49] Speaker 02: With respect to law's pre-termination discipline, she never asked the union to file grievances about them. [00:14:55] Speaker 02: She didn't trigger the grievance machinery at all. [00:14:59] Speaker 02: As we explained in the papers, this isn't a mere technicality. [00:15:02] Speaker 02: Employees often, sometimes, receive discipline that they concede is meritorious. [00:15:07] Speaker 02: The union doesn't challenge discipline like that because there's no reason to. [00:15:11] Speaker 02: So it waits for employees to tell it that they think the discipline is unjustified and grieves the discipline. [00:15:18] Speaker 02: Lawl admits in her interrogatories that she never asked the union to grieve any discipline except her termination. [00:15:24] Speaker 02: With respect to Lawl's termination, she filed a grievance. [00:15:28] Speaker 02: It was processed through the pre-arbitration steps, and then she told the union she didn't want it to go to arbitration. [00:15:35] Speaker 02: Her termination went on remedy because she terminated the grievance machinery, not because of anything the union did. [00:15:42] Speaker 05: The allegation we've heard is that the Union did not conduct a proper investigation and that is cited as the breach by the Union of its duty of representation. [00:15:55] Speaker 02: Yes, Your Honor, so there are two things to say to that. [00:15:57] Speaker 02: One is [00:15:59] Speaker 02: The union did conduct an investigation, right? [00:16:01] Speaker 02: When it sent the initial grievance letter, it requested documents. [00:16:04] Speaker 02: It received those documents, right? [00:16:06] Speaker 02: Both the discipline that law received and the spreadsheets supporting the fact that she had the cash shortages that the record in this case, in fact, showed she had. [00:16:14] Speaker 02: The record shows the union's representative reviewed that evidence. [00:16:18] Speaker 02: The record shows that the union's representative talked to Law about her side of the story. [00:16:23] Speaker 02: Law presented two explanations for what happened. [00:16:27] Speaker 02: One was discrimination. [00:16:28] Speaker 02: The union didn't find any evidence for that in its investigation, partially because Law wouldn't participate after a certain point. [00:16:34] Speaker 02: And then also that maybe somebody had been using her swipe card and the variances were caused by somebody else using her swipe card, but there's a policy that requires employees to keep control of their point of sale system swipe card at all times. [00:16:51] Speaker 02: So the union talked to law, the union considered those, thought they were not good excuses for the variances. [00:16:58] Speaker 02: The union also requested evidence right about the discrimination. [00:17:02] Speaker 02: The Cromwell refused to produce some of it because it was medical records and law refused to sign a waiver. [00:17:10] Speaker 02: It investigated that. [00:17:11] Speaker 02: It got a timeline of all the leaves and other things that the Cromwell had given it. [00:17:15] Speaker 02: So the union did investigate. [00:17:16] Speaker 02: The council focuses pretty substantially on one sort of errant answer where, you know, he said at the end of a long line of questioning, you know, did you investigate? [00:17:26] Speaker 02: And he said, I hadn't at that time. [00:17:28] Speaker 02: But I think as we explained in the declaration and in the briefs, the misunderstanding by the union's representative about that question was pretty obvious given the fact that all of this investigation is documented in emails. [00:17:40] Speaker 04: Prior to Lahl saying that she did not want to go through with mediation, arbitration, whatever, did she claim that she had been the victim of disparate treatment? [00:17:58] Speaker 02: She claimed that she was the subject of discrimination in her grievance letter or grievance form submitted to the union requesting that the grievance be filed. [00:18:10] Speaker 04: Well, what I'm specifically getting into, didn't she claim that she was treated differently than other employees engaging in the same conduct or lack of conduct? [00:18:23] Speaker 02: I don't believe that specific allegation was raised to the union prior to the dismissal or prior to her saying she didn't want to go to arbitration. [00:18:32] Speaker 04: That's part of her claim against the employer here, isn't it? [00:18:35] Speaker 02: Yes, it is. [00:18:36] Speaker 02: The union wasn't aware, if you're referring to when it was raised in the complaint, the union wasn't aware of the complaint at the time it made the decision not to proceed to arbitration. [00:18:44] Speaker 02: It wasn't served until December of 2020 and the union reached out to her and she said, I don't want to proceed to arbitration in August of 2020. [00:18:52] Speaker 02: There's an isolated comment about the fact she felt as though she was discriminated against in the specific grievance form to the union, but the specific claim of disparate treatment wasn't raised to the union until [00:19:05] Speaker 02: It served in December of 2020. [00:19:08] Speaker 04: Suppose the panel were to determine, this is hypothetical, obviously, were to determine that there were material fact questions about her disparate treatment and sent that part of her claim against the employer back. [00:19:25] Speaker 04: Doesn't that shed some light on the union's duty to investigate? [00:19:30] Speaker 02: Not in this case, Your Honor, because [00:19:32] Speaker 02: Right? [00:19:32] Speaker 02: The thing that sort of, there's no causation between the union's alleged failure to investigate. [00:19:37] Speaker 02: The union stopped investigating once Loll said, I don't want to go to arbitration. [00:19:42] Speaker 02: Right? [00:19:43] Speaker 02: So the, you know, the fact that her grievance went on remedy through the grievance machinery is a result of her decision to terminate the grievance machinery. [00:19:53] Speaker 02: So, you know, the idea that the union has an obligation to, [00:19:58] Speaker 02: continue investigation even once a grievance, grievance told them that they don't want their grievance arbitrated, imposes, you know, an incredible practical burden on the union. [00:20:09] Speaker 02: It's got to investigate every discipline and every grievance filed and that's actually what VACA stands for the principle, right, that the union doesn't have to do, right. [00:20:18] Speaker 02: It can choose between the grievances it's going to take to arbitration and those it isn't to avoid overburdening the grievance machinery. [00:20:25] Speaker 02: I see my time is up, so unless you have any further questions. [00:20:27] Speaker 01: I'm just going to keep you a moment over time. [00:20:29] Speaker 01: So is that a bright line rule? [00:20:30] Speaker 01: Are there any circumstances in which the employee could say, I don't want to go to arbitration, and the union would still have a duty to proceed that they couldn't abandon the grievance? [00:20:43] Speaker 02: In the cases, it says that the employee has an obligation to attempt to exhaust the grievance machinery. [00:20:50] Speaker 02: So we submitted that it is a bright line rule. [00:20:52] Speaker 01: So if they say they don't want to participate, then the union has no more [00:20:57] Speaker 01: duty to pursue the grievances at your position? [00:21:00] Speaker 02: I think that's right. [00:21:01] Speaker 02: I think it doesn't violate the duty of fair representation to take employees at their word about the handling of their grievances about their termination. [00:21:09] Speaker 02: They say they don't want to go. [00:21:10] Speaker 02: And here, right, the union said there was a text message. [00:21:12] Speaker 02: The union followed up and said, hey, will you attend if we arbitrate this grievance? [00:21:17] Speaker 02: And she said no. [00:21:18] Speaker 02: or she didn't respond more accurately. [00:21:21] Speaker 02: And so I don't think that the union has any duty to continue investigating or prosecuting grievances, you know, about an individual employee's termination when they seem to have abandoned it. [00:21:30] Speaker 02: They have no interest in following, in going forward with it. [00:21:34] Speaker 02: In Carr, there are, you know, they acknowledge that there are other situations, none of which were raised [00:21:39] Speaker 02: in the appellant's briefs that could excuse not going forward, right, futility, that the arbitration panel was biased, that sort of thing, or that the union had animosity towards her that tainted its decision. [00:21:53] Speaker 02: But there's no evidence that law made that decision for any of those reasons. [00:21:57] Speaker 02: And there's no argument that's preserved before this court that the union, that law made the decision not to proceed to arbitration for that reason. [00:22:03] Speaker 02: She says in her deposition, I just didn't want to go forward with my grievance anymore. [00:22:09] Speaker 01: Thank you. [00:22:15] Speaker 00: Ms. [00:22:15] Speaker 00: Lerma. [00:22:20] Speaker 00: Good morning, Your Honors. [00:22:21] Speaker 00: May it please the court, Diana Lerma, for the Cromwell Defendants and Appellee. [00:22:26] Speaker 00: After having litigated this case for five years, there is one thing that is consistent throughout, and the one consistency is what came up in the district court's order, Judge Silva's order, where [00:22:37] Speaker 00: Mr. McEvoy Amaya consistently misrepresents evidence, brings up issues on reply, not reply to the Cromwell's motion or to the union's motion, but on reply to his own motion, and conflates the issues and the evidence so much [00:22:55] Speaker 00: and muddies the water so much that it's hard to know what side is up. [00:23:00] Speaker 00: That is why, in front of Judge Silva, I accused Mr. McEvoy Amaya of gaslighting her, because she would ask direct, legitimate questions as to representations he was making. [00:23:11] Speaker 00: For example, the representation that someone's testimony carries more weight than a declaration. [00:23:18] Speaker 00: Again and again, Judge Silva asked Mr. McEvoy and Maya, what is your authority for that? [00:23:23] Speaker 00: Please tell me your authority for that. [00:23:25] Speaker 00: And after pivoting multiple times, I think it took about 60 pages of the transcript in order for him to finally come up with an answer. [00:23:33] Speaker 00: And there to this day still is no answer for that proposition. [00:23:36] Speaker 00: In responding, let me back up. [00:23:40] Speaker 00: All of the parties filed motions for summary judgment all at once. [00:23:44] Speaker 00: The Cromwell filed one, the Union filed one, and Mr. McAvoy and Maya filed one as well. [00:23:48] Speaker 00: And the way we dealt with the issues were we had the ADA claims that were pre-termination. [00:23:54] Speaker 00: We had the ADA claims that were the termination claim. [00:23:57] Speaker 00: We had the LMRA hybrid claim. [00:23:59] Speaker 00: And then we had the FMLA issue. [00:24:01] Speaker 00: The FMLA issue is the easiest and also the most difficult at times. [00:24:07] Speaker 00: Because of the way that the motions were [00:24:09] Speaker 00: drafted by Mr. McAvoy Amaya, simply showing up to the court in March of 23 and saying, oh, Your Honor, I'm sorry. [00:24:17] Speaker 00: We're not proceeding with that claim. [00:24:19] Speaker 00: The court had prepared for that argument. [00:24:22] Speaker 00: My office had prepared for that argument. [00:24:24] Speaker 00: We had briefed that argument at length. [00:24:27] Speaker 00: At no point did Mr. McAvoy Amaya say, we're going to withdraw that cause of action, specifically because even Ms. [00:24:33] Speaker 00: Law, in the evidence, she herself said, [00:24:37] Speaker 00: to the Cromwell during all of this investigation, oh, I'm not asking for FMLA because I don't qualify. [00:24:42] Speaker 00: Ms. [00:24:43] Speaker 00: Long knew that before the complaint was even filed. [00:24:47] Speaker 00: She knew that before she was terminated. [00:24:49] Speaker 00: Yet it was still the claim that Mr. McAvoya-Maya continued with. [00:24:54] Speaker 00: And he blurred the pleading so much that in our motions, we actually had to spend 7.5 pages of looking at his evidence and disputing it in a chart. [00:25:05] Speaker 00: because he literally would say X, cite to test to evidence that did not support that proposition. [00:25:12] Speaker 00: So the FMLA issue is indicative of how this entire case has been litigated and why Mr. McAvoy Amaya has multiplied the proceedings more than necessary. [00:25:25] Speaker 00: Judge Silva's order should have been issued the day of the hearing in March of 2023. [00:25:30] Speaker 00: There was no reason that the order could not have been made that day, but it was Mr. McAvoy Amaya's procedure and argument that day that prolonged that. [00:25:38] Speaker 00: Now, with regard to the pre-termination ADA claims, the ADA claims are time-barred. [00:25:45] Speaker 00: We can all agree on the 300-day filing requirement based on the joint job-sharing agreement between NERC and the EEOC. [00:25:54] Speaker 00: If you draw back those 300 days, [00:25:58] Speaker 00: pre-termination claims, which were her request for leave dating back to 2015 and 2016, all of those are way before that 300-day deadline. [00:26:11] Speaker 00: Even if you consider that [00:26:14] Speaker 00: Something fell within it because Mr. McAvoy Amaya argued the continuing violation doctrine. [00:26:20] Speaker 00: That continuing violation doctrine was brought up on reply to his own motion, which he does not appeal here, right? [00:26:27] Speaker 00: And this is something that Mr. McAvoy Amaya consistently does. [00:26:31] Speaker 00: He brings up new argument. [00:26:32] Speaker 00: He brings up new facts on reply, which this court hands down does not have to take, does not have to, I mean, does not prefer. [00:26:43] Speaker 05: Let me ask you to focus on a particular issue if I could. [00:26:48] Speaker 05: And it's really suggested by the question asked a few minutes ago by Judge Hawkins. [00:26:55] Speaker 05: If we focus on a particular claim, and the one I want to focus on for this is the allegedly disparate treatment that Ms. [00:27:04] Speaker 05: Law received as compared to other people working at the hotel or the casino in [00:27:11] Speaker 05: in the bar, where they had cash variances that did not result in termination. [00:27:23] Speaker 05: Now, you have provided responses in your brief with regard to at least some, I think probably all to some extent. [00:27:33] Speaker 05: But the question I have is summary judgment is supposed to be [00:27:38] Speaker 05: our examination on a de novo basis as to whether a reasonable fact finder could conclude to the contrary. [00:27:47] Speaker 05: And why is it that with at least some of the other employees having cash variances comparable or even greater than the plaintiff here, where termination was not the discipline imposed, why doesn't that at least raise a question of fact [00:28:08] Speaker 05: to be determined? [00:28:10] Speaker 00: Because the evidence as to the employees who are allegedly comparable isn't sufficient to show that they're comparable to law herself, right? [00:28:19] Speaker 00: So Mr. McAvoy-Amaya points to these other comparable issues, but he doesn't – the law clearly states that they have to be sufficiently comparable to one another. [00:28:28] Speaker 00: So for example, [00:28:30] Speaker 00: Is there any proof that any of these people had cancer or didn't have cancer? [00:28:34] Speaker 00: That's not something that's in the record. [00:28:36] Speaker 00: In addition to that, there's no evidence in the record as to what they said when they were confronted with the variances. [00:28:42] Speaker 00: Here, Ms. [00:28:43] Speaker 00: Law, when confronted with her variances, said, oh, well, it wasn't me. [00:28:48] Speaker 00: I think they're trying to take my shifts. [00:28:50] Speaker 00: That's why someone's trying to get me in trouble. [00:28:52] Speaker 00: That's why someone's using my Infogenesis card to use the POS and mess up her bank. [00:28:59] Speaker 00: In order to compare those comparables that were cited by Ms. [00:29:03] Speaker 00: Law in her briefs, we would have to know what their response was. [00:29:07] Speaker 05: The jury would be asked, okay, you've got reasons whether or not other employees had health issues, what she said. [00:29:16] Speaker 05: But that gets to pretty finely grained arguments. [00:29:20] Speaker 05: And why couldn't a jury say, I don't think that's really the reason. [00:29:25] Speaker 05: She got fired and they didn't. [00:29:27] Speaker 05: And she had this health issue, and there's no evidence that they had that health issue. [00:29:33] Speaker 05: So why couldn't a jury reach that conclusion? [00:29:37] Speaker 00: I think that a jury could reach that conclusion. [00:29:40] Speaker 05: See, if they could, then why is it appropriate for summary judgment? [00:29:44] Speaker 00: Because the way that that argument was argued in the briefings did not make that an issue for the court to even reach. [00:29:50] Speaker 04: This is a fact question, not a briefing question. [00:29:54] Speaker 04: And the purpose of summary judgment is not to resolve questions of fact, but in part to determine if there are material questions precluding the entry of summary judgment. [00:30:08] Speaker 04: That's what Judge Clifton is asking you about. [00:30:11] Speaker 04: And I know [00:30:15] Speaker 04: Over the course of this proceeding, it's difficult sometimes to distinguish between counsel behavior and pleadings and the like. [00:30:23] Speaker 04: But that's the question. [00:30:25] Speaker 04: And when you hear it from two of us, you know it's important to us. [00:30:32] Speaker 04: So why can we resolve this fact question right here, right now? [00:30:38] Speaker 04: Forget what counsel says. [00:30:40] Speaker 00: I think that based on the investigation that the Cromwell did, in addition to the investigation that the union did, the investigation was thorough. [00:30:47] Speaker 00: It looked at all of the issues and it found that Ms. [00:30:50] Speaker 00: Lal's cumulative and individual variances, there was four over, I believe, a couple month period. [00:30:58] Speaker 04: The union has told us that they were unaware at the time they were deciding whether to investigate further. [00:31:07] Speaker 04: of the complaint and the specific allegation that there was disparate treatment. [00:31:14] Speaker 04: Am I wrong about that? [00:31:17] Speaker 00: So Ms. [00:31:18] Speaker 00: Law's initial complaint did not involve any issues regarding disparate treatment. [00:31:22] Speaker 00: That is correct. [00:31:23] Speaker 00: In the investigation of the process, the union did look at the due back process and what those requirements are with regard to your cash back, dropping the money, taking the money. [00:31:35] Speaker 00: It is a very [00:31:37] Speaker 00: lock down procedure, right, given that it does function in casinos in Las Vegas. [00:31:42] Speaker 05: It's not the union, it's not the Cromwell that is the decider of fact. [00:31:47] Speaker 05: It may well be true that after their apparently thorough investigations, they decided there wasn't a problem. [00:31:54] Speaker 05: But that doesn't mean plaintiff can't try to persuade a jury or if it's a bench trial, the judge that in fact [00:32:05] Speaker 05: There was disparate treatment. [00:32:07] Speaker 05: There was discrimination. [00:32:08] Speaker 05: So the question is, what is there that causes you to tell us a reasonable fact finder could not come to that conclusion, that the hotel didn't think there was discrimination, doesn't do it? [00:32:22] Speaker 05: What evidence is there that rules out the possibility of a reasonable jury reaching that conclusion? [00:32:30] Speaker 00: Well, I think the threshold issue would be whether or not they're comparable enough to even be able to compare one to another. [00:32:35] Speaker 05: Yeah, but your decision that somehow the comparisons aren't close enough isn't the jury's decision. [00:32:44] Speaker 05: I mean, you told us some things about the other employees, but it tells us they're not sufficiently comparable because we don't know whether or not they had cancer. [00:32:53] Speaker 05: I mean, that strikes me as the most minute [00:32:57] Speaker 05: finely-grained basis, if you came in and gave us evidence that they did have cancer and still weren't fired, that might be meaningful. [00:33:08] Speaker 05: But to tell us that other employees might have had conditions that justified a different decision than was given with regard to plaintiff doesn't tell us that they did have other conditions that would explain. [00:33:22] Speaker 05: I mean, you could raise questions, you could complain, as you argued in [00:33:26] Speaker 05: the brief that plaintiffs never investigated the details about the other employees, but they don't have to unless you can establish as a matter of law that a reasonable jury couldn't come to a different conclusion. [00:33:42] Speaker 05: So that's the problem I have here. [00:33:45] Speaker 05: What is it, what evidence in the record is there that would persuade us that a reasonable jury could not come to a different conclusion? [00:33:54] Speaker 05: with regard to whether she was treated in a discriminatory fashion? [00:33:57] Speaker 00: I think it's the number of discrepancies and variances leading up to her termination. [00:34:02] Speaker 00: That is not what has been found in the comparable cases. [00:34:09] Speaker 00: Thank you, Your Honors. [00:34:10] Speaker 00: Thank you. [00:34:17] Speaker 03: I just want to address a few things that were said by my opposing counsel here. [00:34:21] Speaker 03: With regards to the issue of whether the disparate or the treatment for her being singled out for her cancer was raised by Tracy in the initial proceedings before she was terminated, I would advise the court to go take a look at the 2019 or 2020 grievance form that she filed. [00:34:40] Speaker 03: She did state that she believed that she was being singled out for her cancer. [00:34:44] Speaker 03: And then I would also ask the judges of the court to go look at the two letters that Local 165 sent to her in August of 2020, both of which reference that she was being singled out or that she had alleged that she was being singled out for her cancer. [00:35:03] Speaker 03: She actually did raise the disparate treatment and being singled out for her cancer in her grievance and the union. [00:35:10] Speaker 03: stated that it was still investigating that issue, but she was terminated again for the cash variance. [00:35:17] Speaker 03: And I'm not here saying that based on the evidence with regards to the 301 claim that [00:35:24] Speaker 03: the evidence ultimately adduced at the conclusion of the case that the court could have awarded summary judgment to them on that claim. [00:35:34] Speaker 03: But with regards to the issue of the evidence that I had at the time they asked me to dismiss the case, I had not taken the deposition of the 30B6 witness from the union. [00:35:45] Speaker 03: And when I did, and I asked him repeatedly, did you get the cash register tapes? [00:35:51] Speaker 03: He said no. [00:35:52] Speaker 03: When I said why, when I asked him why, his response was, we didn't get that far in the investigation. [00:35:57] Speaker 03: And he said that repeatedly. [00:35:59] Speaker 03: And then I asked the final question. [00:36:01] Speaker 03: At any point from the point you got the grievance form to the point you canceled the grievance, did you investigate the basis of the termination? [00:36:10] Speaker 03: He said no. [00:36:11] Speaker 03: At that point, [00:36:13] Speaker 03: I reasonably believe that the investigation claim was legitimate. [00:36:19] Speaker 03: And all the other stuff with regards to what investigation they actually did do came in a declaration that was submitted with summary judgment. [00:36:27] Speaker 03: And because of that, I feel like the sanctions awarded for that basis is quite unreasonable because that evidence, the declaration, didn't come until summary judgment. [00:36:38] Speaker 03: And the evidence I was relying on was the 30B6 witness testimony. [00:36:42] Speaker 03: And it was that he did not conduct an investigation into the issue of why she was terminated. [00:36:50] Speaker 03: Thank you, Your Honors. [00:36:51] Speaker 01: Thank you. [00:36:52] Speaker 01: Thank you, counsel, for your arguments. [00:36:54] Speaker 01: And this case is submitted.