[00:00:01] Speaker 03:
Good morning, everyone.

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Welcome to the Ninth Circuit.

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In today's oral arguments, I'm Judge Sanchez.

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And with me are Judge McEwen and Judge Paez.

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And we have a few cases on calendar with one submission, United States versus Joan Bailey at all.

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And the first case we're going to hear argument on is Zoe Hollis versus R&R Restaurants Inc.

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Case number 24-2464.

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I want to remind Council that we've closely read your briefs and are very familiar with the arguments.

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So please confine yourselves to the most pertinent points.

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And if you want to request time for rebuttal, please let us know in advance.

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Council, you may begin.

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If it may please the court, John Christensen on behalf of the appellant, and I'd like to reserve five minutes, Your Honors, if I can.

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And thank you so much for allowing me to appear remotely while I'm in treatment.

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I've made things very easy and helpful for my family.

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And with Your Honor's statement that you want me to keep things brief and to the point, and I reviewed the briefs in preparation for today,

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And there's one point that I think maybe wasn't directly addressed, but is brought up everywhere.

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The statute itself says 15A3 is a violation for any person to discharge or in any other manner discriminate against any employee.

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In an area, the analysis was who is any person.

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Here, the real analysis for this court is going to be any employee.

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And we think that the district court failed to take that into account because the district court and the magistrate never analyzed whether or not the appellant was an employee of Sassy's, only of the place where she was retaliated against, which was at Dante's.

[00:02:09] Speaker 04:
The, um, let me, can I ask you a question?

[00:02:12] Speaker 02:
Absolutely.

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Something that's kind of caught my attention as I was reading over the material.

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Um, and the cases, there's a case called Arias versus Raimundo.

[00:02:24] Speaker 04:
Correct.

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Right.

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And, uh, the magistrate judge, um, cited it, but didn't really give it much credence as applied to this case.

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I tend to agree with you, Your Honor.

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And the magistrate judge said, well, there was an employment relationship in that case.

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And so we don't have to.

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It doesn't really help here.

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It doesn't really make any difference.

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I don't think that helps.

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So let me just ask you this.

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Isn't there more to Raimundo or to Arias than the magistrate judge gave it?

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There absolutely is.

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And I appreciate that, Your Honor.

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Arius extended the any person to employers, to lawyers for a defendant saying any person can retaliate against somebody who makes a claim.

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And in that case, it was pretty clear that the any person, the lawyer by tipping off ice to deport somebody was retaliating against somebody for making a claim.

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regarding their employment condition.

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Clearly there had been an employment relationship, right?

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At one time there was.

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There was.

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In our case, there was an employment relationship.

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between Hollis and Sassy's.

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So let me ask you that the problem I'm having, not the problem but the interpretive issue it seems to me.

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I don't have any problem with any person because Mr. is it Felaccio or whatever his name is, he's a person and he qualifies.

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But the question is she was retaliated against at Dante's not Sassy, correct?

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Correct.

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Okay.

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with respect to the statute, she's discharged or retaliated against as an, quote, employee of Dante.

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Is that right or no?

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not as an employee, as a former employee of SASI's.

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And the specific term in the statute says any employee.

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That means past employee.

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And you've got to go back and look at the area's decision, where the court took an analysis from the US Supreme Court in a Title VII case, which we do for interpretations of FLSA cases.

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And they did an analysis, and they looked at it, and they said,

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that for these reasons, we conclude that the Title VII substantive provisions and its anti-retaliation provisions are not codermineous.

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The scope of the anti-retaliation provisions extend beyond workplace-related or employment-related retaliatory acts and harms.

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So here, if they're, it's a former employee and they're being retaliated afterwards,

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then they still have a claim.

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Let's say that we have somebody from Starbucks, that's any person, and somebody waltzes in to get a job and the Starbucks person finds out, oh my God, this lady's filed one or two of these kind of FSLA or other kind of suits.

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I'm not going to hire her because I don't really like having potentially disruptive employees.

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Would that be covered by the statute?

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It would, and good luck proving the correlation and causation in that case.

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You're not going to be able to find it.

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That's why you don't have those cases percolating and coming up.

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I was going to ask.

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What about the fact that in Arius there was also a pending FSLA claim against the Angelo Dairy employer, whereas here the claim was dismissed as time barred against SASEs.

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Does there need to be a pending claim against the employer for the retaliation claim to go forward?

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No.

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And then you're going to get in concerns because then it's going to be a question of whether the only people that can bring a retaliation claim would necessarily be in a circumstance like my client where her underlying claim, while she didn't win on it, it had merit.

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when the issue came to the willfulness aspect and the extension of the statute of limitations from two to three years.

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If you're going to get to the point where you're saying, well, you have to be a contemporaneous and other FLSA claim to bring the retaliation claim, you're going to limit the scope of the retaliation statute.

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And there are two different animals as the night circuit explain in areas.

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So let me see if I really understand.

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your claim, or her claim.

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Thales was an owner of, part of the ownership group of Sassy's, is that right?

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That is correct.

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And she claims that, in her misclassification suit, that she was actually an employee, not an independent contractor, of Sassy's, is that right?

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That is correct, Your Honor.

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And she alleges that Felice, is that how you say it?

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I'm not sure how you say it.

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That he was the owner of Sassy's.

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I mean of Dante's.

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Is that right?

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Correct.

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And that she had, so therefore,

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That, as I understand it, that's the connection, is that when she then sued for the misclassification, she alleges that Phallus retaliated against her by terminating her contract at Sassi's.

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Is that right?

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Is that the whole theory?

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Terminating her contract at Dante's.

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Dante's, I'm sorry, keep getting them confused, but at Dante's, yes.

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Is that the whole

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Yeah, he admitted it too and it's in writing.

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No, but is that the whole structure of your claim?

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Yes Well, can I let me let me follow up on Judge McEwen's hypothetical about the Starbucks?

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example because as I read the statute it seemed or at least as When I read Arius Doesn't it seems to also require?

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that the retaliator is acting

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In the interest of the employer, so there's some connection between the person who's doing the retaliating and the employer who?

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That the FLSA claim is against so at least for the Starbucks example that unless there's a connection to someone that wouldn't be enough to to file a claim for retaliation, but I I take it here you're saying that the that the defendant fell ace is Connected because he was a partner with with sassies is that right?

[00:09:42] Speaker 02:
Yes, and the claim was against him.

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So he was a member of SASE's and he specifically said, I am one of the partners in SASE's.

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And do you agree that there also has to be some connection that the retaliator is acting in the interest of the employer?

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I think when it says any person, if someone wants to retaliate against somebody for something else, I don't know if it's limited to that.

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You're going to have a hard time finding somebody and having a hard time proving causation in those circumstances.

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And I don't think it's necessarily limited to that.

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Well, we've focused on the definition of employee, but the definition in the statute of employer includes any person acting directly or indirectly in the interest of

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and employer.

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So in that case, if you look at the definition of the statute, is Felice acting both in the interest of an employer at Dante and at SASE?

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I think you can absolutely make that sense.

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What he's doing is he's further serving as a deterrent to anybody else to make that type of a claim.

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If you do this, you're not going to be able to work at any other clubs in town.

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And that would serve as a deterrent and to discourage people from making those types of claims.

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But the claim, as I read the statute under subsection three, the claim that an employee filed doesn't have to relate to that person's status as an employee where the person was discriminated against or discharged, right?

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Correct.

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So in that case, again, if you're an employer and you see an employee who's a filer and you won't hire them or discharge them, it doesn't matter that their complaint made previously had nothing to do with your business.

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Is that right?

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Or do you have to have a nexus?

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Well, I have the nexus in this case.

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No, no, that's not the question.

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But do you have to have the nexus?

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I think you're going to still need to show the but for causation.

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In a case, you're going to have to have, they made a claim that they were retaliated against in some circumstance and also that it was because they made the claim.

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You're going to have to show that.

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That's part of any retaliation.

[00:12:30] Speaker 00:
Well, it says because they failed any complaint.

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It doesn't say any complaint against that employer or any complaint against anybody in particular.

[00:12:40] Speaker 02:
I think you're adding more fuel to my argument.

[00:12:44] Speaker 00:
I'm not adding anything.

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I'm trying to interpret the statute.

[00:12:50] Speaker 02:
Well, I appreciate it.

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I don't mean to be putting any words in your mouth,

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Judge McCain, let me back up in one essence.

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I think the magistrate's ruling kind of ignores a lot of it, and it helps.

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And I try to bring this up.

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It also goes, it's consistent with the analysis of the Supreme Court in Burlington, which we should be considering, which said it doesn't have to be a workplace related retaliation.

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A former employee makes a claim against their old place.

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I don't work there anymore, but you didn't pay me overtime.

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And then they go and send somebody, one of the owners comes in and kneecaps someone, does a galooly, like in the Tonya Harding circumstance.

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And that person gets their knee hit.

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That's still retaliation.

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We hit you in the knee because you sued us for overtime.

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And here, the circumstance here is he didn't hit her in the knee, but he still took a contract away from her.

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So precluded her from making money somewhere else.

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And the statute that they answer retaliatory stashing or in a remedial situation is meant to.

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preclude these types of actions.

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How many of the cases are there going to be where somebody chooses a former employee?

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It's not limited to just current employees.

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And it's any type of complaint, just like the court said, and it's any employee.

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It's a broad statute.

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Yeah, I don't think you need to kneecap, obviously, to discriminate or to discharge.

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But if she goes to another dance club, not the Dante Dance Club, and she applies for a job,

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These guys are friends of Felicia and buddies.

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And they say, well, I'm not, you know, Felicia was very honest of why she wasn't being hired.

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And these guys are equally clueless on what one might say and say, you know, I'm not going to hire you because you sued that other dance club.

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Would she have a claim against the new employer or the prospective employer?

[00:15:07] Speaker 02:
Yeah, they said that out loud.

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That would show that the element that I need to show, which is that issue, is the retaliation element.

[00:15:18] Speaker 00:
But she doesn't, so that comes back, though, to interpreting the statute.

[00:15:22] Speaker 00:
Under that scenario, there doesn't need to be any nexus between the complaint she filed and the new people or the new employer, right?

[00:15:38] Speaker 00:
Just any complaint.

[00:15:40] Speaker 02:
That'd be an hypothetical that we don't have here.

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I understand that.

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Otherwise, it wouldn't be hypothetical.

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Yeah.

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And well, I think that's relevant here, because I do have one of the partners at SASE who retaliated.

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And I'm not asking the court to, I'm not saying that Mr. Court, which didn't make that statement, didn't do that.

[00:16:05] Speaker 04:
Could I just follow up on this?

[00:16:06] Speaker 02:
It's a good question.

[00:16:09] Speaker 04:
It's a good question, but your answer is not quite.

[00:16:13] Speaker 00:
Precise.

[00:16:14] Speaker 04:
Yes, not quite precise.

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Let me just follow up on, add a little further twist to Judge McEwen's question.

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So in Judge McEwen's question, she posited a situation where Ms.

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Hollis just goes to some other club and they say, hey, we're not going to hire you because

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You sued Sassy's for misclassification, and we don't want you here.

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Would she, to prevail, would she have to prove that they did that in furtherance of the interest of Sassy's?

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I mean, what if they just, you know, it was in the community.

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They just knew that, you know, there was this lawsuit and this,

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Hollis was the one who filed it.

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Would she have to prove that when they wouldn't hire that they were doing that to further the interest of Dantes, where she was an employee?

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I don't think the statute says that.

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So the answer to Judge McEwen's question should have been yes.

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Judge McEwen, you're right.

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You're correct, Your Honor.

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That's why you're on the bench and I'm here in this office.

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I guess we're going to take you over a little bit because I need to follow up with that.

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Arias was about the employer's lawyer retaliating against the plaintiff there, you know, calling ICE and arranging for things.

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And so clearly that lawyer was never an employer of the plaintiff.

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But Arias does talk about and the statute defines an employer or defines an employer to include any person acting directly or indirectly in the interest of an employer in relation to an employee.

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That's the hook for creating a private right of action to go against someone who's retaliating against.

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So if you don't think that there needs to be a connection or acting in furtherance of the interest of the employer, what is your statutory hook for your argument that it doesn't have to be that way?

[00:18:41] Speaker 02:
Well, I do have that because fallacy.

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But it's not whether you have it or not.

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I think we're trying to understand what the appropriate rule of decision should be in interpreting the statute.

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And so it's like you may have it, but just is that a requirement for retaliation claim is what I'm getting at.

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I think it's inherent in the retaliation that it has to be because they

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This question, what's your retaliation?

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Is it to send a message for you mess with my old club or I'm not going to let you do anything like that in the future?

[00:19:20] Speaker 00:
So who in this case?

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If we were to determine that this statute has been incorrectly.

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Interpreted and it would need to go back.

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Would your client need to in effect?

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Litigate the.

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Hollis versus Sassy suit as to whether she's an employee or an independent contractor?

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And that is a suit.

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And that is actually a suit that's now been time barred.

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So would she be litigating the underlying facts of a time barred lawsuit?

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That goes back to the question whether I need to prove the underlying FLC claim.

[00:20:05] Speaker 02:
And as long as it has merit, when you bring the complaint, you can be retaliated against.

[00:20:10] Speaker 00:
No, but she has to be an employee of someone.

[00:20:13] Speaker 00:
And who is she an employee of?

[00:20:17] Speaker 02:
Sure, she was an employee of Sassy's and Mr. Falaas.

[00:20:21] Speaker 00:
Okay.

[00:20:21] Speaker 00:
So, but then she would have to, if we, I'm just trying to understand if it goes back, you know, the district judge can say, now what?

[00:20:30] Speaker 00:
So does she then have to prove that she was an employee?

[00:20:34] Speaker 00:
Because there's obviously a dispute about that.

[00:20:37] Speaker 02:
Yeah, and the court, the magistrate, avoided that entire argument.

[00:20:41] Speaker 00:
And I produced... My question is actually pretty simple.

[00:20:45] Speaker 00:
It's more of a procedural one.

[00:20:46] Speaker 00:
Yes, we can go back... What do you have to prove if you go back?

[00:20:50] Speaker 02:
Well, we have to show that she's an employee of somewhere and... And that somewhere is... She was retaliated against by someone for making her claim.

[00:21:01] Speaker 02:
The underlying claim.

[00:21:02] Speaker 00:
So she would have to prove...

[00:21:05] Speaker 00:
You keep saying the employment relationship is with sassy.

[00:21:10] Speaker 00:
So she would be having to prove a claim that has been time barred in effect, right?

[00:21:21] Speaker 02:
No, not necessarily.

[00:21:22] Speaker 02:
It's part of it.

[00:21:23] Speaker 02:
Whether it's actual is.

[00:21:27] Speaker 02:
Correct, but that's for the willfulness, but she still has to prove that she's an employee.

[00:21:30] Speaker 04:
You just wouldn't be asking for any damages for wrongful misclassification.

[00:21:36] Speaker 02:
Correct.

[00:21:37] Speaker 00:
You'd classify her one way or the other in the district court.

[00:21:42] Speaker 00:
You'd come to a resolution, right?

[00:21:45] Speaker 02:
Yeah.

[00:21:47] Speaker 02:
I think the evidence was absolutely overwhelming that she was an employee.

[00:21:53] Speaker 02:
Um, okay.

[00:21:55] Speaker 03:
Well, I think we've heard quite a bit.

[00:21:57] Speaker 03:
Uh, let's hear from our and our restaurants and we'll, uh, we'll give you a little bit of time for rebuttal.

[00:22:03] Speaker 03:
Thank you.

[00:22:08] Speaker 01:
You may be muted.

[00:22:10] Speaker 01:
Good morning, your honors.

[00:22:11] Speaker 01:
Uh, may I please the court?

[00:22:12] Speaker 01:
My name is Anthony and I will be arguing on behalf of the respondent.

[00:22:20] Speaker 01:
Um, based on the court's points from, uh, the

[00:22:24] Speaker 01:
exchange that just occurred it seems like there's two big issues here one whether plaintiff can bring claims of retaliation under 215 if they cannot establish employment status of any kind plaintiffs preferred pronouns were they them so i'm going to use that as best i can if i slip it's apologies so under

[00:22:47] Speaker 01:
the court correctly identified that under 215, the plaintiff must establish an employment relationship with someone somewhere at some time.

[00:22:56] Speaker 01:
The claim that Sassy's misclassified plaintiff is time barred.

[00:23:02] Speaker 01:
And our position is the plaintiff cannot go back and relitigate that for the discrete issue of whether it was retaliation.

[00:23:09] Speaker 01:
We supported that argument with already the city of Granada, which

[00:23:15] Speaker 01:
related to plaintiff's claims that they had been coerced into signing an unlawful FLSA agreement with the employer.

[00:23:23] Speaker 01:
That claim, even though they continue to be paid less than under that agreement, could not be relitigated because the court would not go back and reopen that issue of the coercion, even though it might have related to some later

[00:23:40] Speaker 01:
damages or remedy available.

[00:23:43] Speaker 03:
How do you get around Arias?

[00:23:45] Speaker 03:
Because there we are very clear that you can file a retaliation claim against someone who is not and has never been an employer of the plaintiff, right?

[00:23:56] Speaker 03:
This was a lawyer who was acting at the behest of the employer.

[00:24:00] Speaker 03:
And it seems to me at least that the magistrate judge didn't really grapple with that in deciding that because Appellant was not an employee of Dante's that that closed everything off that seems that seems wrong to me Thank you honor Arias is very distinguishable we believe the district court

[00:24:25] Speaker 01:
correctly held that even under Arias, there has to be some employment relationship established for there to be a recovery.

[00:24:34] Speaker 01:
No employment relationship with Sassi's was established by plaintiff.

[00:24:39] Speaker 01:
And plaintiff seeks to strip Arias of all of its limiting principles, frankly, the undisputed facts.

[00:24:45] Speaker 03:
But the magistrate never engaged in an analysis of whether appellant was an employee of Sassi's.

[00:24:53] Speaker 03:
You know, let's, if we were to send this back and appellant is able to establish that they were an employee of SASE's, wouldn't that fit into the ARIA's framework of allowing a retaliation claim?

[00:25:06] Speaker 01:
Uh, it was, your honor, it was brought up during the last argument that, uh, it still would not, uh, based on the fact that, uh, Mr. Fallacci was not acting as an agent of SASE's with respect to making a legitimate business decision.

[00:25:22] Speaker 01:
for who could do a one-off performance at a variety show at a bar called Dante's.

[00:25:28] Speaker 01:
Um, uh, you know, Aria's had been employed by Angelo Derry.

[00:25:32] Speaker 01:
That was established.

[00:25:34] Speaker 01:
Um, but also it was more clearly established that the attorney was acting as the Derry's agent.

[00:25:40] Speaker 01:
Uh, Mr. Flachi's email, uh, frankly is well put and sets forth the legitimate business reasons.

[00:25:47] Speaker 01:
that under McDonald Douglas should be considered as an alternative basis for supporting the district court's decision that it was a business decision.

[00:25:58] Speaker 01:
to not have them perform.

[00:26:00] Speaker 03:
That seems at least to be a tribal question.

[00:26:02] Speaker 03:
The email directly mentions that he's a partner at SASE's and that he received a class action complaint.

[00:26:10] Speaker 03:
And then he goes and pulls back the contract.

[00:26:13] Speaker 03:
So there's at least a tribal dispute whether he was doing this in the interest of SASE's, isn't there?

[00:26:19] Speaker 03:
I mean, be careful what you write when you go against what your lawyers tell you to do.

[00:26:24] Speaker 01:
I suppose it might be one takeaway from this.

[00:26:27] Speaker 01:
Fair enough.

[00:26:28] Speaker 01:
The, um, so the, the legitimate business interests of Mr. Flachy in, um, holding on plaintiff performing this one-off and tell some clarity was, um, came forth about whether they intended, thought they were a contractor or an employee, uh, is, uh, very importantly distinguishable because, um, you know, there, uh, again, there's been no response by plaintiff either before the,

[00:26:56] Speaker 01:
trial court level or here in the reply brief on appeal that suggests how Mr. Flatchy's perspective was somehow pretextual or not legitimate or not for the reasons that he stated, plainest status as whether or not they were a contractor or employee at Dante's or whether they thought they were.

[00:27:19] Speaker 01:
a contractor or employee really hasn't been clear until today, when it seems that plaintiff is now conceding that Dante's was clearly a contract relationship.

[00:27:29] Speaker 01:
Based on that ambiguity, Mr. Flachy was, there's been no evidence to suggest that Mr. Flachy was acting with some sort of ulterior basis.

[00:27:38] Speaker 01:
And under the McDonald Douglas test, that wouldn't mean that plaintiff's claims would fail on that alternative basis as well.

[00:27:45] Speaker 00:
So the question then is, the record isn't very well developed as to all these relationships.

[00:27:53] Speaker 00:
So would there be a factual issue on that at this stage?

[00:27:59] Speaker 01:
Your Honor, the record is well developed, we believe, with respect to defendant's positions and defendant's arguments.

[00:28:08] Speaker 01:
You are correct that it's not well developed with respect to plaintiff's positions.

[00:28:13] Speaker 01:
Uh, and that has to do with that's outlined in detail and our procedural history and our brief, um, plaintiff failed to make discovery over the course of over a year with extensions and, um, a whole lot of, uh, leeway being given by the court.

[00:28:28] Speaker 01:
Uh, the court was quite exasperated by their failure to do so.

[00:28:32] Speaker 01:
And after our summary judgment motion was held for, I think it was a year, maybe over a year.

[00:28:38] Speaker 01:
The court finally decided that enough was enough and it needed to make a decision based on the record as it existed.

[00:28:44] Speaker 01:
So we believe the court was well within its discretion to make that decision.

[00:28:47] Speaker 01:
Therefore, the record as it exists, you know, may not be sufficient for plaintiff to fail because we don't believe that there's any evidence to support that.

[00:28:57] Speaker 01:
But any failing of the evidence or

[00:29:00] Speaker 01:
You know, while we would have proven this if we'd had more time, argument should also fail because plaintiff did have more time, had the chance to make that argument and simply failed to do so through their own inaction.

[00:29:13] Speaker 00:
May I ask you what your interpretation of the statute is?

[00:29:17] Speaker 00:
I think you would have to agree that Mr. Felice is any person.

[00:29:22] Speaker 00:
He's a person, right?

[00:29:26] Speaker 00:
He is a person so we got something established, but Does that person?

[00:29:32] Speaker 00:
Need to have the employer employee relationship with an employee under section sub three of the statute If you discharge and discriminate against an employee so in other words in your view is

[00:29:50] Speaker 00:
Does his relationship need to be between him and her at Dante's or at Sassy's, or could it be both?

[00:30:01] Speaker 01:
That's a good question, Your Honor.

[00:30:03] Speaker 01:
The way we understand that statute is similar to how the court interpreted it in the Arias case, which is that there has to be an employment relationship somewhere.

[00:30:15] Speaker 01:
And the person who's being accused of retaliation must have been acting

[00:30:19] Speaker 01:
clearly on behalf of the employer who is alleged to have done the wrong act.

[00:30:29] Speaker 01:
Here, Mr. Filacci was not acting on Sassy's behalf.

[00:30:36] Speaker 01:
There's no credible fact to support that this was some sort of a later arbitrary or kind of punitive measure.

[00:30:45] Speaker 01:
In fact, really important plaintiff,

[00:30:47] Speaker 01:
had other contracts with Mr. Flachi for presenting workplace culture trainings that were quite a bit more lucrative than this one-off $50 performance.

[00:30:57] Speaker 01:
Those contracts were retained.

[00:30:59] Speaker 00:
I want to ask you about that as to how that figured in, in fact, that she could do these training videos, but she couldn't participate in this one kind of dance performance, right?

[00:31:12] Speaker 01:
Yeah.

[00:31:13] Speaker 01:
Yeah, Your Honor.

[00:31:14] Speaker 01:
So that supports the position that

[00:31:17] Speaker 01:
Mr. Felaci was not acting as an agent of SASE's to punish plaintiff for bringing claims, but rather as very clearly a legitimate business person looking out for Dantes and trying to understand what plaintiff's position was when they danced, whether they considered a single song dance performance contract or employee status.

[00:31:41] Speaker 01:
That was up in the air based on plaintiff's claims.

[00:31:46] Speaker 00:
Could you articulate why it is that Felice wouldn't let her perform?

[00:31:52] Speaker 00:
What did he say?

[00:31:55] Speaker 01:
Well, the email is quite clear.

[00:31:58] Speaker 01:
And as I recall it, he said that the lawsuit against Sassi's brought into question whether plaintiff believed that they performed as a contractor or an

[00:32:11] Speaker 01:
or an employee for their one-off occasional performances at Dante's, as both of them involved dancing.

[00:32:19] Speaker 01:
Now, they were very different types of dancing.

[00:32:21] Speaker 01:
Dante's was like a burlesque variety show.

[00:32:23] Speaker 01:
Sassy's is a strip club.

[00:32:25] Speaker 01:
But the reason was, frankly, the law is just not terribly clear and easy for lawyers and judges to apply with economic realities.

[00:32:35] Speaker 00:
But the reality is that he, in effect,

[00:32:41] Speaker 00:
discharges or limits her role in dancing because she had filed a lawsuit over, am I a contractor or an employee, right?

[00:32:52] Speaker 00:
I mean, that's what's so odd here is that he's more honest than most.

[00:32:58] Speaker 00:
And you actually see in the email that the lawsuit is the reason she doesn't get to perform these other functions at Dante's.

[00:33:08] Speaker 00:
That's because under the statute, she's filed a complaint or instituted a proceeding under this chapter.

[00:33:15] Speaker 00:
So, the question is, you know, does she have to be employee of Dante for that or does she have to be employee of SASE?

[00:33:26] Speaker 01:
I think that they would have to be an, well, here's the important thing is that this actually came up in Arias when Arias was distinguishing, the Arias distinguished Dillinger v. Science applications.

[00:33:39] Speaker 01:
And the court expressly held that there's no liability for retaliation for not hiring a prospective worker under the FLSA.

[00:33:49] Speaker 01:
That's the same situation we have here with respect to Dante's.

[00:33:56] Speaker 01:
Our position is that plaintiff would have to establish an employment relationship at SASE's and that Mr. Filacci would have, they would have had to present a evidence suggesting that his

[00:34:07] Speaker 01:
decision to not have them perform one song at a variety show related to an effort to chill or punish or deter the types of claims that plaintiff was bringing.

[00:34:22] Speaker 01:
The cultural workplace trainings are important on that because if Mr. Flauchi's intent was to chill plaintiffs, you know, or to punish plaintiff for bringing claims against sassies,

[00:34:33] Speaker 01:
Obviously, those trainings would not have continued.

[00:34:35] Speaker 00:
It shows a very... Let me ask you, was she, vis-a-vis the trainings, was she an employee or an independent contractor?

[00:34:42] Speaker 01:
Hollis was a contractor, and I think that the understanding was that... Okay, let's just stop there.

[00:34:49] Speaker 00:
She's a contractor vis-a-vis the training videos.

[00:34:54] Speaker 01:
Correct.

[00:34:57] Speaker 00:
Is her status as

[00:34:59] Speaker 00:
a dancer that of a prospective employee and therefore under your position wouldn't be covered at all anyway?

[00:35:07] Speaker 01:
That would be our position, Your Honor, yes.

[00:35:11] Speaker 01:
That's an alternative basis for upholding the Disreport's decision, correct.

[00:35:17] Speaker 03:
But I mean, presumably under Arias, whether or not she was a contractor at Dante's,

[00:35:27] Speaker 03:
if, or we'll use the right pronouns, if they believe that they were an employer at SASE and that Mr. Feliz did something because of the lawsuit that they had filed, why would that defeat a separate thing about prospective employment?

[00:35:47] Speaker 03:
I'm not sure I understand that point.

[00:35:53] Speaker 01:
Sure, Your Honor.

[00:35:54] Speaker 01:
So my understanding, our understanding is that the

[00:35:57] Speaker 01:
Well, real quick, so I can understand the question, sorry.

[00:36:02] Speaker 01:
Are you saying you're presuming that Hollis was an employee of SASE's?

[00:36:06] Speaker 03:
Let's say Hollis establishes that they actually were an employee of SASE's.

[00:36:12] Speaker 03:
And then it gets to a tribal issue as to what motivated Mr. Filiz from withdrawing the contract, whether it was in retaliation or for some completely independent basis.

[00:36:26] Speaker 03:
Whether or not Hollis would also potentially be a prospective employee or something at Dante's shouldn't make a difference one way or the other.

[00:36:35] Speaker 03:
It shouldn't stop the retaliation lawsuit from happening, as I understand it.

[00:36:43] Speaker 01:
Well, Your Honor, our understanding is that even if Planoff was an employee of Sassi's, that the loss of potential prospective work

[00:36:56] Speaker 01:
at Dante's would not constitute retaliation unless Mr. Flachi was acting as an agent of SASE's and acting with a retaliatory motive.

[00:37:09] Speaker 01:
I think the really important thing here, again, going back to the record, is that there's no evidence whatsoever in this case to support

[00:37:16] Speaker 01:
um, an argument that Mr. Flachy was not acting for the reasons he stated in the email.

[00:37:21] Speaker 03:
Um, let me, let me ask you one last question before, well, your time's running out.

[00:37:25] Speaker 03:
Um, does it matter in your view, whether there is a pending FLSA claim or, or just one that had been filed in the past?

[00:37:36] Speaker 03:
Does, should that affect retaliation, a retaliation claim at all one way or the other?

[00:37:41] Speaker 01:
I haven't briefed that specific issue, and I'm not aware of any limitation regarding whether it's pending or not.

[00:37:49] Speaker 01:
But frankly, that's not something that we saw as an issue here.

[00:37:54] Speaker 03:
Okay.

[00:37:55] Speaker 03:
Thank you.

[00:37:56] Speaker 03:
Thank you for your candor.

[00:37:56] Speaker 03:
Let me see if my panel has anything.

[00:37:58] Speaker 03:
Thank you.

[00:38:00] Speaker 03:
All right.

[00:38:02] Speaker 03:
Mr. Christensen, we'll give you a couple minutes for rebuttal.

[00:38:06] Speaker 02:
Sure.

[00:38:07] Speaker 02:
And I think I kind of want to get back to a point I made earlier in the areas analysis.

[00:38:13] Speaker 02:
The areas analysis was fits these circumstances because they adopted the Title VII analysis for an FLSA case.

[00:38:24] Speaker 02:
And they specifically cited that the retaliation can be from a third

[00:38:34] Speaker 02:
the retaliation can be beyond workplace retaliated, extends beyond workplace related or employment related retaliatory acts or harms.

[00:38:48] Speaker 02:
There was sufficient evidence here to show that the retaliation was due to her filing the lawsuit in SASIS.

[00:38:58] Speaker 02:
And in this analysis, all the evidence is taken and the light most favorable

[00:39:04] Speaker 02:
to my client.

[00:39:10] Speaker 02:
And so I think if you look at the breakdown, we're not asking the court to extend anything further.

[00:39:18] Speaker 02:
The district court didn't do that, those analysis.

[00:39:21] Speaker 02:
The district court focused pretty much exclusively on whether or not she was an employee of Dante's.

[00:39:30] Speaker 02:
and ignored whether she was an employee of Sassy's.

[00:39:34] Speaker 02:
And we think it should go back.

[00:39:37] Speaker 02:
There's additional evidence that perhaps wasn't in the record that shows that this retaliation was on top of it.

[00:39:45] Speaker 02:
Subsequently, Sassy's, through Mr. Falaise, sued in state court for defamation related to this case.

[00:39:56] Speaker 02:
And that case has been beat back, but that's further evidence showing that the accident days were retaliatory in nature.

[00:40:05] Speaker 02:
There's facts that show that in the record, this email shows it.

[00:40:10] Speaker 02:
You can read it in my client's favor saying, hey, you filed the lawsuit, I'm not giving you work.

[00:40:18] Speaker 03:
Great.

[00:40:20] Speaker 03:
We're done.

[00:40:20] Speaker 01:
Thank you.

[00:40:21] Speaker 03:
Council, thank you both for your helpful arguments.

[00:40:24] Speaker 03:
The matter will stand submitted.

[00:40:28] Speaker 01:
Thank you, Anderson.