[00:00:00] Speaker 03:
We're prepared to hear the arguments this morning.

[00:00:02] Speaker 03:
So in the first case, 24-3041, we have the United States versus State of Kansas Department of Health and Environment.

[00:00:10] Speaker 03:
I understand the United States Council is appearing on the screen.

[00:00:14] Speaker 03:
And so we welcome you, and the appellant can proceed.

[00:00:21] Speaker 04:
Thank you.

[00:00:23] Speaker 04:
Good morning.

[00:00:24] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:26] Speaker 04:
Janelle Marff, the United States.

[00:00:28] Speaker 04:
Thank you again for allowing me to appear remotely in this case.

[00:00:33] Speaker 04:
USERA's definition of employer by its text focuses on the function that a person or entity plays in a service member's appointment.

[00:00:42] Speaker 04:
The DISH report was therefore correct when it first recited USERA's definition and acknowledged that employer is intended to encompass more than the traditional single employer relationship.

[00:00:54] Speaker 04:
where the district court erred is where it strayed from the statute-based definition and instead imposed a formalistic requirement that only those entities that have complete authority over certain formal aspects of employment may behave serendipitally.

[00:01:10] Speaker 04:
The district court then compounded this error by disregarding the settled standard and summary judgment stage requiring courts to accept all evidence in the non-movement's favor and to make all reasonable inferences in the non-movement's favor.

[00:01:23] Speaker 04:
These two errors warrant reversal.

[00:01:29] Speaker 04:
Turning first to Sarah's definitions of employer, the statute has two definitions relative to this case.

[00:01:36] Speaker 04:
First, it says that an employer is a person or entity that has control over employment opportunities.

[00:01:42] Speaker 04:
And second, it says an employer is a person or entity that has employment-related responsibilities.

[00:01:49] Speaker 04:
The United States entered evidence satisfying both of these definitions.

[00:01:53] Speaker 04:
And in both instances, the district court erroneously disregarded these function-based definitions and said that the United States had not presented enough evidence to survive summary judgment because only those with formal and complete authority over certain aspects of employment could be a USERA employer.

[00:02:12] Speaker 03:
Ms.

[00:02:13] Speaker 03:
Lamarck, if I may, let me just ask an order of process question.

[00:02:19] Speaker 03:
If we were to agree with you

[00:02:22] Speaker 03:
that the district court erred in its interpretation of employer.

[00:02:26] Speaker 03:
The second issue relates essentially to the application of the summary judgment standard, if I understand it correctly.

[00:02:33] Speaker 03:
And so if we reach the first issue of the court misinterpreting the definition of employer, wouldn't it make sense to then remand to allow the court

[00:02:46] Speaker 03:
to consider the summary judgment motion under the appropriate definition of employer?

[00:02:55] Speaker 04:
Yes, Your Honor.

[00:02:56] Speaker 04:
We do believe that agreement is appropriate, but we believe that the court should address both errors in this instance, both claims of error.

[00:03:03] Speaker 04:
The district court, if it were to go back and consider the appropriate definition of employer, still has to do so.

[00:03:11] Speaker 04:
while considering all evidence in the light most favorable to the United States and making all inferences in the light most favorable to the United States.

[00:03:16] Speaker 03:
Of course, if I may pause you for a second.

[00:03:21] Speaker 03:
Well, that's the law.

[00:03:22] Speaker 03:
I mean, it's not like we're making law on that.

[00:03:24] Speaker 03:
That is the law.

[00:03:25] Speaker 03:
And so why should we presume the court's not going to follow the law when we remand it back to apply the right legal lens to the interpretation?

[00:03:35] Speaker 03:
I mean, counsel can make the argument below

[00:03:38] Speaker 03:
to the court that it misinterpreted the summary judgment standard and show it legions, a legion of cases that would say that what the summary judgment standard is.

[00:03:50] Speaker 03:
So, I mean, why is it necessary for us to apply that new, let's assume we agree with you, why is it necessary for us to apply that legal lens ourselves?

[00:04:02] Speaker 04:
And I think the error is significant enough where the district court has indicated or demonstrated that it had some difficulty in actually applying the summary judgment standard as required by this court.

[00:04:15] Speaker 04:
And I think the Supreme Court statement in Toland, even in its limited jurisdiction, where it doesn't take cases just because there was an error, the Supreme Court found that a clear misapprehension of the summary judgment standard warranted their intervention and warranted reversal on those grounds.

[00:04:30] Speaker 04:
And so I think given the district court's record in this case, and considering these two motions, these cross motions for summary judgment, and not taking the albeit difficult step of shifting its perspective and considering the United States evidence in the light most favorable to the United States and making all reasonable inferences there in that favor, before granting Kins's motion, demonstrates in this apprehension of that standard that the Supreme Court has recognized is worthy of addressing and reversing

[00:05:01] Speaker 04:
Ms.

[00:05:02] Speaker 02:
Elmar, in that connection, the district court found, and it was undisputed, so necessarily found, that Mr. Collogue, did I pronounce that right?

[00:05:19] Speaker 02:
Collogue?

[00:05:23] Speaker 04:
Your Honor, I apologize.

[00:05:24] Speaker 04:
I'm not sure who you're referring to.

[00:05:26] Speaker 02:
The gentleman that was

[00:05:29] Speaker 02:
The predecessor to Vandeveld.

[00:05:33] Speaker 04:
Mr. Coppage.

[00:05:33] Speaker 04:
Mr. Derrick Coppage.

[00:05:36] Speaker 02:
Coppage, OK.

[00:05:39] Speaker 02:
The district court found that he was present at the interview.

[00:05:44] Speaker 02:
Yes, sir.

[00:05:45] Speaker 02:
The depositions would suggest that is a dramatic understatement.

[00:05:53] Speaker 02:
His deposition indicates how he generally participated in those interviews

[00:05:59] Speaker 02:
of these employees of the respective counties.

[00:06:09] Speaker 02:
Wouldn't that suggest that if we agree with you, that we send it back for the district judge to elaborate on what evidence there is suggesting that summary judgment is inappropriate?

[00:06:27] Speaker 02:
And for example, on that one,

[00:06:29] Speaker 02:
You could elaborate on what the disputed evidence is, the nature of that gentleman's participation in the interview process, which seems to be an appropriate factor to consider whether or not Kansas was an indirect employee.

[00:06:46] Speaker 02:
What do you say to that?

[00:06:48] Speaker 02:
That was kind of long-winded.

[00:06:49] Speaker 04:
Absolutely, Your Honor.

[00:06:52] Speaker 04:
Absolutely, Your Honor.

[00:06:53] Speaker 04:
The United States agrees that that evidence absolutely demonstrates both that Kansas had control over her employment opportunities and was involved in employment and had employment-related responsibilities as to her.

[00:07:05] Speaker 04:
As you've referenced, Derek Coppage was present during the interview and was not only present, but he asked questions, he raised candidates, he weighed in on each candidate's candidacy.

[00:07:15] Speaker 02:
You're taking that where you want to go, but where I want to go is, doesn't that suggest

[00:07:21] Speaker 02:
It should be a remand, if we agree with you, rather than an outright reversal in our making our own view of the evidence.

[00:07:33] Speaker 02:
Similar to what Judge Holmes was asking.

[00:07:37] Speaker 04:
Well, sure, Your Honor.

[00:07:39] Speaker 04:
To be clear, the United States is not asking this court to decide as a matter of law that Kansas was one of its employers.

[00:07:46] Speaker 04:
The United States is simply asking this court to review the record de novo and to determine that the district court erred when deciding as a matter of law that Kansas could not be interviewed there.

[00:07:51] Speaker 04:
The United States is simply asking this court to review the record de novo and to determine that the district court erred when deciding as a matter of law that Kansas could not be interviewed there.

[00:07:55] Speaker 04:
The United States is simply asking this court to review the record de novo and to determine that the district court erred when deciding as a matter of law that Kansas could not be interviewed there.

[00:08:00] Speaker 02:
The United States is simply asking this court to review the record de novo and to determine that the district court erred when deciding as a matter of law that Kansas could not be interviewed there.

[00:08:04] Speaker 02:
The United States is simply asking this court to review the record de novo and to determine that the district court erred when deciding as a matter of law that Kansas could not be interviewed there.

[00:08:08] Speaker 02:
The United States is simply asking this court to review the record de novo and to determine that the district court erred when deciding as a matter of law that Kansas could not

[00:08:13] Speaker 04:
Your Honor, we are asking the court to find if the court misapplied the legal standard and to reverse the court's conclusion that Kansas could not be an employer as a matter of law.

[00:08:24] Speaker 04:
At that point, the district court would then go on to consider, would deny Kansas' motion as to whether or not Kansas was an employer and would go on to consider the other issues that were raised at the summary judgment stage.

[00:08:36] Speaker 04:
There were other issues raised by both parties.

[00:08:38] Speaker 04:
And so when the district court denies the motion on this grounds, the district court would then have the opportunity to address the rest of the motion.

[00:08:45] Speaker 04:
And at that point, the court would determine whether or not there were tribal issues that needed to be seen by a jury.

[00:08:51] Speaker 00:
So I'm still a little confused.

[00:08:53] Speaker 00:
So with respect to the question of whether Kansas is an employer here, you're suggesting that we reverse, remand, and

[00:09:07] Speaker 00:
let it go to the jury, or are you suggesting we reverse remand and tell the district judge to reconsider under the correct summary judgment standard?

[00:09:20] Speaker 00:
And I know I'm asking the same question, but I'm still a little confused.

[00:09:25] Speaker 04:
Sure, Your Honor.

[00:09:26] Speaker 04:
So in this instance, we are not asking.

[00:09:28] Speaker 04:
So we filed our own motion for summary judgment.

[00:09:31] Speaker 04:
And in our motion, we ask the court to find, as a matter of law, that Kansas was an employer.

[00:09:36] Speaker 04:
the district court found denied our motion.

[00:09:38] Speaker 04:
We are not appealing that denial, and so we are not asking the court to go back and reconsider that motion, our question, or either one of these questions.

[00:09:47] Speaker 04:
Instead, we are asking this court to find, reviewing de novo as it is authorized to do, that the court misapplied this, that there were, in fact, facts disputed, genuine issues of material fact, as to this issue of employer, when you were considering the proper standard or proper meaning of what employer means,

[00:10:06] Speaker 04:
And once this court advises or instructs the district court as to what Lucera's employer means, the district court can then hold that issue to go to the jury and consider the remaining issues that were raised in summary.

[00:10:17] Speaker 00:
Okay, so you are saying you want us to remand for this to go, the issue of whether Kansas is an employer, to go to the jury?

[00:10:28] Speaker 03:
Yes, Your Honor.

[00:10:29] Speaker 03:
Okay.

[00:10:30] Speaker 03:
On the question of Mr. Coppage's participation,

[00:10:34] Speaker 03:
the reliance on that to support your argument about the employer status of Kansas.

[00:10:40] Speaker 03:
Did you make that argument before the district court?

[00:10:42] Speaker 03:
I did not see that in the briefing before the district court.

[00:10:48] Speaker 04:
Yes, Your Honor.

[00:10:49] Speaker 04:
Yes, we did.

[00:10:50] Speaker 04:
We cited Derek Papich's testimony.

[00:10:52] Speaker 04:
Both briefs discussed the fact and agreed that Derek Papich was involved in the interview process.

[00:10:58] Speaker 04:
There was also evidence that Derek Hopage supervised Ms.

[00:11:02] Speaker 04:
Gonzalez on a regular basis.

[00:11:03] Speaker 03:
And to be clear, to be clear, there's a distinction between saying having in the summary judgment record or in the briefing that he participated in relying on it as part of a legal argument.

[00:11:17] Speaker 03:
And I'm asking about the latter.

[00:11:19] Speaker 03:
So did you in fact rely upon his participation as bolstering the argument that Kansas is an employer?

[00:11:29] Speaker 04:
Yes, Your Honor, I believe we did.

[00:11:31] Speaker 04:
I believe that was one of the critical issues that we raised.

[00:11:33] Speaker 04:
And the district court's order addressed that legal argument.

[00:11:36] Speaker 04:
It addressed our argument that Derek Coppich's participation in the interview demonstrated that Kansas was one of Gonzales's employers.

[00:11:50] Speaker 04:
In addition to Derek Coppich's participation in the interview, as we have previously discussed, there was also evidence indicating that

[00:11:57] Speaker 04:
that Kansas had control over her employment opportunities at every stage.

[00:12:01] Speaker 04:
Throughout her employment, they were involved in supervising the substance of her work.

[00:12:07] Speaker 04:
They were the only entity that reviewed the substance of her work.

[00:12:11] Speaker 04:
They performed performance evaluations on at least two instances, and then they provided regular, and those performance evaluations were their statewide evaluations.

[00:12:20] Speaker 04:
They also, when giving regular information to Finney County, gave Finney County

[00:12:26] Speaker 04:
the substantive review that they had performed.

[00:12:28] Speaker 04:
So the Finney County had something to say in their evaluations.

[00:12:31] Speaker 04:
As to the employment related responsibilities, in addition to participating in the interview, in addition to these performance evaluations, this wasn't just a grantor that audited records.

[00:12:44] Speaker 04:
In addition to auditing records and requiring certain file keeping, Kansas was also actually traveling with Ms.

[00:12:52] Speaker 04:
Gonzalez as she did her work.

[00:12:54] Speaker 04:
They went in the field with her.

[00:12:55] Speaker 04:
They told her how to get to the community member she was seeking to serve and told her what questions to ask.

[00:13:00] Speaker 04:
And this is just another piece of evidence that clearly demonstrates that Kansas was taking on employment-related responsibilities, just as it did with its directly employed disease intervention specialists, as to Ms.

[00:13:13] Speaker 03:
Gonzalez.

[00:13:15] Speaker 03:
I understood as part of your characterization of what it means to be an employer

[00:13:22] Speaker 03:
that you spoke of anyone who provides, quote, input on hiring and firing decisions.

[00:13:29] Speaker 03:
And with that understanding in mind, it's hard for me to see if that is the substance of it, what the limiting principle is.

[00:13:40] Speaker 03:
Because, I mean, as a grantor, I could have the government, the recipient, the grantee could contact me

[00:13:50] Speaker 03:
and ask me whether somebody is doing a good job or not.

[00:13:54] Speaker 03:
And if I respond that they are not doing a good job, have I provided sufficient input to therefore make me an employer relative to that individual?

[00:14:05] Speaker 04:
No, Your Honor.

[00:14:06] Speaker 04:
And I'd like to answer your question, but I also would like to acknowledge that I would like to reserve some time for rebuttal.

[00:14:11] Speaker 04:
But as to your question, no, Your Honor, that would not be sufficient.

[00:14:13] Speaker 04:
And courts have found that a mere statement of dissatisfaction does not create an employer relationship.

[00:14:19] Speaker 04:
But Kansas chose to do more than that.

[00:14:21] Speaker 04:
Kansas didn't just state its dissatisfaction with Ms.

[00:14:25] Speaker 04:
Gonzalez.

[00:14:25] Speaker 04:
Kansas managed Ms.

[00:14:27] Speaker 03:
Gonzalez.

[00:14:28] Speaker 03:
All right, hold on.

[00:14:30] Speaker 03:
There is a distinction.

[00:14:31] Speaker 03:
There is one issue here of purely how we interpret the definition of employer.

[00:14:36] Speaker 03:
My question is going to that.

[00:14:39] Speaker 03:
It is not going to what Kansas did in the application of the summary judgment standard.

[00:14:44] Speaker 03:
Those are two separate things, as broken out in your own brief.

[00:14:47] Speaker 03:
And so my question is,

[00:14:49] Speaker 03:
as it relates to how we should conceptualize an employer, then what is the distinction?

[00:14:54] Speaker 03:
But is it management beyond offering input?

[00:14:58] Speaker 03:
Is that what you're saying in terms of the definition of it?

[00:15:04] Speaker 04:
In terms of the definition, there are multiple factors that should be considered.

[00:15:09] Speaker 04:
And so a mere statement of dissatisfaction would not be sufficient.

[00:15:13] Speaker 04:
But additional evidence of supervision, additional evidence of performance evaluations,

[00:15:19] Speaker 04:
additional evidence of daily interaction, additional evidence of training, of substance, of setting the terms of the position.

[00:15:29] Speaker 04:
And so Kansas could have decided to simply lay out general parameters of what they wanted with the grant and left Finney County to manage its employee as it chose.

[00:15:40] Speaker 04:
Because it didn't do so, because it did these numerous other instances,

[00:15:44] Speaker 04:
there was sufficient evidence to demonstrate that Kansas was one of Gonzales' employers, or at least there was a triumphal issue as to that fact.

[00:15:53] Speaker 03:
I will give you a little time for rebuttal.

[00:15:57] Speaker 03:
We'll hear from the opposing counsel now.

[00:15:59] Speaker 03:
Thank you.

[00:16:11] Speaker 01:
May it please the court, David R. Cooper for the Appellee, Kansas Department of Health and Environment.

[00:16:18] Speaker 01:
As a matter of law, KDHE was not Ms.

[00:16:21] Speaker 01:
Gonzalez's employer under USERA, and thus she wasn't KDHE's employee.

[00:16:29] Speaker 01:
The USERA definition of employer is the heart of the case from our point of view, and that's found at 38 USC 4303.

[00:16:40] Speaker 01:
it appears to the appellee that the government is attempting to expand Congress's definition of an employer.

[00:16:50] Speaker 01:
And in Council's statement and in their briefs, they're referring to the text of the statute focusing on functions.

[00:16:58] Speaker 01:
No, the text of the statute explicitly says that an employer is either an entity that pays a salary or wages for work performed or

[00:17:10] Speaker 01:
that has control over employment opportunities.

[00:17:14] Speaker 01:
And then it goes on to say, including other persons or entities to whom the employer has delegated employment-related responsibilities.

[00:17:24] Speaker 02:
Does employment opportunities, including interviewing for the job?

[00:17:30] Speaker 02:
No.

[00:17:31] Speaker 02:
So you don't think it makes any difference that Coppeach actively participated in the interview of county DIS employees?

[00:17:44] Speaker 02:
It could, but it does not on these facts.

[00:17:48] Speaker 02:
You said no, it doesn't.

[00:17:49] Speaker 02:
You said the interviewing process and the hiring process is not within the phrase control over employment opportunities.

[00:18:03] Speaker 01:
Mere participation in the employment interviews does not equate to control over employment opportunities.

[00:18:11] Speaker 01:
You're focusing on control rather than employment opportunities.

[00:18:15] Speaker 01:
I am, as does the text of the statute.

[00:18:17] Speaker 02:
Let me ask you this.

[00:18:19] Speaker 02:
And I'm focusing a lot more because the evidence was clear.

[00:18:25] Speaker 02:
During the Vanderveld regime, they did these job evaluations.

[00:18:35] Speaker 02:
And they're in two parts.

[00:18:37] Speaker 02:
The top part is basic job performance, and the bottom part is general work performance.

[00:18:43] Speaker 02:
Would you agree?

[00:18:44] Speaker 02:
Tell me if this is wrong, because I read those.

[00:18:47] Speaker 02:
We didn't have many.

[00:18:49] Speaker 02:
that it appeared that on basic job performance, that Goss basically adopted what had been said by Vandeveld in her performance evaluation.

[00:19:02] Speaker 02:
But on the second part, the general work performance, she was talking about administrative things in the office, how she got along, the fact there were problems with nurses, and it was more the routine parts of a job.

[00:19:19] Speaker 02:
rather than the performance of the essential duties of DIS in the top portion, basic job performance.

[00:19:29] Speaker 02:
Tell me why that's the wrong view.

[00:19:30] Speaker 01:
Okay, several things.

[00:19:33] Speaker 01:
First, the

[00:19:34] Speaker 01:
What's in the record as the performance evaluations in KDHE's files, those are unsigned.

[00:19:41] Speaker 01:
Those are not performance evaluations in the state's performance evaluation system because Ms.

[00:19:48] Speaker 01:
Gonzalez was not an employee in the system.

[00:19:51] Speaker 01:
And those were never seen by Ms.

[00:19:53] Speaker 01:
Goss or Ms.

[00:19:54] Speaker 01:
Gonzalez.

[00:19:56] Speaker 01:
They weren't seen by Ms.

[00:19:57] Speaker 01:
Goss?

[00:19:57] Speaker 01:
No.

[00:19:58] Speaker 01:
separately KDHE reported on a regular basis just the numbers.

[00:20:03] Speaker 01:
Those went down all the time.

[00:20:06] Speaker 01:
And the record shows that both Mr. Coppage and Ms.

[00:20:12] Speaker 01:
Vanderveld sent performance statistics.

[00:20:15] Speaker 01:
How many patients has she seen?

[00:20:18] Speaker 01:
How many interviews has she done?

[00:20:19] Speaker 01:
How many completed interviews do we have?

[00:20:22] Speaker 01:
All of those sorts of things.

[00:20:23] Speaker 01:
Which is an important part of the job.

[00:20:24] Speaker 01:
Correct.

[00:20:26] Speaker 01:
But those are performance factors for the grant.

[00:20:28] Speaker 01:
Those are the deliverables under the grant.

[00:20:30] Speaker 02:
But weren't those incorporated effectively in the GOSS?

[00:20:37] Speaker 02:
When GOSS filled out her form, I think it's in handwritten form, that she basically reiterated what had been said in the top part by Kansas on basic job performance?

[00:20:48] Speaker 01:
I can't say that I agree that she copied those from.

[00:20:52] Speaker 01:
I'm not saying copied.

[00:20:54] Speaker 01:
But in terms of those numbers were recorded as part of the deliverables on the grant.

[00:20:58] Speaker 01:
And yes, Ms.

[00:21:00] Speaker 01:
Goss as Ms.

[00:21:04] Speaker 01:
Gonzalez's supervisor included those.

[00:21:06] Speaker 01:
In other words,

[00:21:08] Speaker 01:
But those are the deliverables under the grant, and here's how you are actually performing on those deliverables.

[00:21:13] Speaker 02:
Didn't Goss testify on her deposition that she wouldn't know how to go about evaluating a DIS in how they perform the substances part of her job?

[00:21:30] Speaker 02:
And Ms.

[00:21:31] Speaker 02:
Vandeveld, I think testified, or somebody testified that Vandeveld said, well, I'll teach you how to do that.

[00:21:38] Speaker 01:
Yes, Ms.

[00:21:39] Speaker 01:
Goss said, I don't know how to do the DIS job.

[00:21:42] Speaker 01:
And then we're talking about the period of time in 2010 when they discovered the 96 patients who had not been contacted by Ms.

[00:21:53] Speaker 01:
Gonzalez.

[00:21:54] Speaker 01:
They were just stuffed in a drawer and nothing done.

[00:21:57] Speaker 02:
Well, doesn't that suggest then that she would basically had to rely upon Vandeveld or Vandeveld's predecessor for evaluation of the job performance, the substantive job performance of Gonzalez?

[00:22:15] Speaker 01:
Does it at least have a little of that suggestion?

[00:22:18] Speaker 01:
I can't agree.

[00:22:21] Speaker 01:
Well, does the information coming from the grantor

[00:22:25] Speaker 01:
saying, here's what the performance on your grant has been.

[00:22:28] Speaker 01:
You're either meeting the grant requirements or you are not meeting the grant requirements.

[00:22:33] Speaker 01:
Yes.

[00:22:35] Speaker 03:
By definition, that would have to be.

[00:22:37] Speaker 03:
As I understood, that wasn't the question.

[00:22:39] Speaker 03:
The question focused on the fact that she said, Ms.

[00:22:42] Speaker 03:
Goss, that she did not know how to do the substance of Ms.

[00:22:46] Speaker 03:
Gonzalez's job.

[00:22:48] Speaker 03:
And if she doesn't know how to do the substance of it, well, let's say supervise the substance of it, then why doesn't that make Ms.

[00:22:55] Speaker 03:
Gonzalez the employer and have an employee and, being the operative article there, and an employee of Kansas, which does know how to do it?

[00:23:08] Speaker 01:
Because the way that conversation occurred and the way it reads in the record is that

[00:23:14] Speaker 01:
Ms.

[00:23:15] Speaker 01:
Goss, as the Finney County Health Director, was being told, you have to get the deliverables up to spec.

[00:23:25] Speaker 01:
And Ms.

[00:23:25] Speaker 01:
Goss says, I don't know how to do that because I don't know how to do the job.

[00:23:29] Speaker 01:
She was being told, it's your job as the Finney County Health Department to meet the deliverables and if you don't know how, we'll show you.

[00:23:37] Speaker 03:
And if she was an employer of that function, why would she not know how to do the substance of it?

[00:23:46] Speaker 03:
How would she not know how to evaluate it?

[00:23:49] Speaker 03:
I mean, if I'm an employee and I don't know what the employee is doing, that doesn't make me much of an employer, does it?

[00:23:56] Speaker 01:
I disagree with that in a great deal.

[00:23:58] Speaker 03:
And explain why you disagree with it.

[00:24:00] Speaker 03:
And give me your best case that supports your view as it relates to this.

[00:24:05] Speaker 01:
The example would be,

[00:24:06] Speaker 01:
In this case, Ms.

[00:24:08] Speaker 01:
Goss was the Finney County Health Director.

[00:24:10] Speaker 01:
She is not an MD, and she would not know how to appropriately assess whether a physician was appropriately performing evaluations and case assessments in her health department.

[00:24:23] Speaker 03:
Well, we're not talking about a physician.

[00:24:25] Speaker 03:
We're talking about somebody who was undertaking a job for which Ms.

[00:24:30] Speaker 03:
Goss purported

[00:24:31] Speaker 03:
to do an evaluation of her.

[00:24:34] Speaker 03:
So if Ms.

[00:24:35] Speaker 03:
Goss does an evaluation of her and a portion of that job, I can just say a portion of that job, she does not know anything about it, why doesn't that lend to the view that that portion of the job must have a different employer?

[00:24:55] Speaker 01:
employer, the definition of employer under 4303 requires either you're the one paying the salary or wages or you control the employment opportunities.

[00:25:06] Speaker 01:
And here, Finney County was a grant recipient with specified deliverables and the portion of the evaluation that Judge Murphy is referring to is

[00:25:16] Speaker 01:
Here is the report on your deliverables.

[00:25:19] Speaker 01:
We sent you 112 sexually transmitted disease cases to investigate.

[00:25:24] Speaker 01:
You did nine of them.

[00:25:26] Speaker 00:
Well, in this case, it is true that Kansas had the control over the employment opportunity.

[00:25:37] Speaker 00:
In fact, Kansas, by canceling the grant, resulted in Ms.

[00:25:43] Speaker 00:
Gonzalez being terminated.

[00:25:47] Speaker 00:
So it seems to me that they're the one that actually made the decision to terminate her, and they did it by canceling the grant.

[00:25:55] Speaker 01:
And I respectfully disagree, Judge.

[00:25:57] Speaker 00:
Well, let me call your attention.

[00:25:59] Speaker 00:
We don't have a lot of law under this statute on what an employer is, but the Supreme Court has directed us to look at, for example, Title VII for help in the employment area.

[00:26:13] Speaker 00:
And the 10th Circuit has a case

[00:26:15] Speaker 00:
I don't know how to pronounce it, Sinova versus National Statistics and Technology where it was a grant to the University of Colorado and this court held that the one who terminated the employee was the one who issued the grant because by terminating the grant they

[00:26:43] Speaker 00:
de facto terminated the employee.

[00:26:46] Speaker 01:
And in this instance, the termination of the grant is not the de facto cause of Ms.

[00:26:50] Speaker 01:
Gonzalez's termination.

[00:26:51] Speaker 01:
She was offered an alternate position with Finney County.

[00:26:54] Speaker 00:
Well, she was terminated from this position.

[00:26:58] Speaker 01:
Again, the position she held was an employment position with Finney County.

[00:27:02] Speaker 00:
The issue here is whether Kansas was her employer to do this job.

[00:27:07] Speaker 00:
That doesn't mean that Kansas is their employer for any job she might do for the county.

[00:27:13] Speaker 00:
But the issue is whether Kansas was an employer for her doing this job.

[00:27:21] Speaker 01:
And I respectfully disagree, because 43034 requires either the payment of the salary or wages, or control over employment opportunities.

[00:27:32] Speaker 00:
Well, would you say terminating someone means you have control over their employment opportunities?

[00:27:36] Speaker 01:
It would, but the state did not terminate Ms.

[00:27:39] Speaker 01:
Gonzalez's employment, Finney County did.

[00:27:43] Speaker 01:
Finney County offered her alternate employment, which Ms.

[00:27:46] Speaker 01:
Gonzalez declined.

[00:27:50] Speaker 02:
Go ahead.

[00:27:50] Speaker 02:
I'm sorry.

[00:27:51] Speaker 02:
The way you're talking, well, let me ask you.

[00:28:01] Speaker 02:
Tell me what's wrong with this.

[00:28:02] Speaker 02:
It appears that the DC, the district court, was saying that a grant administrator cannot be an employer.

[00:28:13] Speaker 02:
Why is that wrong?

[00:28:15] Speaker 02:
That's one reading you can make of the decision.

[00:28:19] Speaker 01:
I don't read the decision that way.

[00:28:20] Speaker 01:
What I read the decision is saying is under the facts of this case, the grand administrator did not have control over Ms.

[00:28:27] Speaker 01:
Gonzales' employment opportunities and therefore was not her employer under you, Sarah.

[00:28:33] Speaker 02:
And that same decision said that Coppage was merely present at the interview, correct?

[00:28:41] Speaker 01:
The text of that decision says, Mr. Coppage was present.

[00:28:45] Speaker 01:
He had a list of questions that he asked.

[00:28:47] Speaker 01:
He ranked her and he made a recommendation that agreed with the other persons interviewing her that she was the best candidate.

[00:28:54] Speaker 02:
He voted on her.

[00:28:55] Speaker 01:
Again, the three, but his vote carried no sway.

[00:28:59] Speaker 01:
They didn't have to hire her just because he voted for her the best candidate.

[00:29:03] Speaker 00:
Well, I mean, the issue doesn't say he has to have absolute control.

[00:29:06] Speaker 00:
He just has to have control over her employment opportunity.

[00:29:11] Speaker 01:
And on this record, the state of Kansas did not have control over Ms.

[00:29:17] Speaker 01:
Gonzalez's employment opportunities.

[00:29:21] Speaker 01:
Finney County was free to employ anybody they wanted to to perform these functions.

[00:29:25] Speaker 01:
And because Ms.

[00:29:26] Speaker 01:
Gonzalez was not performing them, Ms.

[00:29:28] Speaker 01:
Goss was free to perform them herself.

[00:29:31] Speaker 01:
And in fact, she said, I don't have time to learn that.

[00:29:34] Speaker 01:
I don't have time to do it.

[00:29:35] Speaker 01:
I don't want the grant anymore.

[00:29:38] Speaker 02:
What's wrong with this approach?

[00:29:47] Speaker 02:
Understanding there may be some dispute as to the participation of Coppage in the interview, in interviews of all county DICs.

[00:29:59] Speaker 02:
There's some question about Kansas' involvement in the evaluation process.

[00:30:07] Speaker 02:
And then they have this conference when she's terminated.

[00:30:10] Speaker 02:
And you have the view from the circuit as recited by Judge McHugh.

[00:30:17] Speaker 02:
What's wrong with saying, let's send this to the jury for the jury to be instructed that a grant administrator is a grant administrator and, as such, is not an indirect employer?

[00:30:33] Speaker 02:
But you, jury, are to determine whether or not the grant administrator in this case, under the facts and the evidence you've heard,

[00:30:43] Speaker 02:
is in fact an indirect employer, because it had direct participation in the selection process, it had direct participation in the evaluation process, and direct participation in the ending of her employment by means of the grant.

[00:31:03] Speaker 02:
What's wrong with that?

[00:31:04] Speaker 01:
The answer to that question, Judge, is because it strays from the definition Congress gave us for an employer under 4303.

[00:31:13] Speaker 01:
It's control over employment opportunities, and those factors do not show control over employment opportunities.

[00:31:18] Speaker 02:
It doesn't say absolute control.

[00:31:20] Speaker 02:
It says it has control over employment opportunities, correct?

[00:31:27] Speaker 01:
That is the text of the statute.

[00:31:29] Speaker 01:
And with respect to the definition of employer and employee, and here they didn't define employee, and the Supreme Court directs us when we have that circumstance, you look to the common law for control over employment.

[00:31:44] Speaker 01:
And frankly, the facts don't support that.

[00:31:49] Speaker 01:
Seeing no further questions.

[00:31:54] Speaker 03:
Would you give the appellant a minute, please?

[00:32:02] Speaker 04:
Thank you, Your Honors.

[00:32:03] Speaker 04:
I just want to address two things briefly.

[00:32:05] Speaker 04:
In his discussion with Your Honors, Kansas's counsel spoke about how this is just a map focusing on the control that Kansas had.

[00:32:14] Speaker 04:
To be clear, the district court defined control, and no one is disputing that definition.

[00:32:19] Speaker 04:
The district court said that control was to have the power or authority to guide or manage.

[00:32:23] Speaker 04:
And the United States absolutely entered evidence

[00:32:27] Speaker 04:
that demonstrated that Kansas had the authority to guide or manage Ms.

[00:32:31] Speaker 04:
Gonzalez's employment, satisfying the definition, in addition to the other definition that neither the district court nor appellee has addressed, that being having employment-related responsibilities.

[00:32:44] Speaker 04:
Secondly, Kansas's response here in its brief demonstrates why the support should address the summary judgment

[00:32:55] Speaker 04:
because his recitation of the facts to defend the district court's order simply recites Kansas' interpretation, Kansas' favorable inferences.

[00:33:05] Speaker 04:
And at the summary judgment stage, that is inappropriate.

[00:33:08] Speaker 04:
For these reasons, we ask the court to reverse the district court's ruling and state that its application of the employer definition was too narrow, was not focused on the function as required, and that it misapplied the summary judgment standard.

[00:33:25] Speaker 04:
In your arms.

[00:33:27] Speaker 03:
Thank you.

[00:33:29] Speaker 03:
Case is submitted.