good morning euro news my name is ken bass i'm with the law firm of grady and associates and i represent the i'd like to reserve two minutes for a reply this is a case about believing it's not about evidence it's not about proof and that's important because the standards for in a discrimination case are very different they are on the standards for proof in opposition to a motion for summary judgment for a trial as noted by the us supreme court in swear  it's not even necessary to plead a prime aphasia case for discrimination in order to survive a twelve b six motion what year was that case that cases two thousand till haven't the pleading rules changed some yes they have how i don't see any knowledge what the current standards are once again this was filed in state court and we met the state court standards in federal court now what are the federal court standards i don't have it in front of me can i that we are i don't believe there's an argument here that her pleadings aren't plausible going back with regards to the initial complaint where we had causes of action for continuing violations of both continuing discrimination continuing failure to accommodate a disability continuing failure to engage in an interactive process of accommodation and continuing retaliation the court as to the initial complaint ruled that there was no continuing violation and it's our position that the court err is if your client have to the two thousand taped conversations and the decisions made to go to different locale never applied for another job until well i don't think there she's ever applied or the pleadings never asserted that she applied for anything well and what constituted a continuing violation how how would the ploy or continue to violate eight she has her two thousand and ten conversation that she's even interested in another job that's an excellent question your honor with regards to the accommodation of a disability in jensen versus wells fargo the court makes it very clear that it is the employer's location to place an employee in an open position to accommodate and i have to say already taken action into a way they accommodated her they had accommodated her request that she wanted to locate relocate and they and she agreed to relocate at a different position so that settles any it would seem to me that that settled any claim that she had with reference to accommodate her she agreed to go to a different place with the understanding that she wouldn't be she wouldn't have the position she had she would take a position that was a little bit lower than that so why isn't that over how does that continue how does the company continue to look after her complaint and an accommodation which they've already where they've already made an accommodation to which she has agreed your honor first of all to accommodate something adequately or reasonably requires to be placed in a comparable position which they had not yet you can  can but if not they're not required to create a new get issued it but it is an ongoing obligation why because if years have passed if your client is not shown an interest in being promoted to a manager position it's not like the company's post to revolve around her is that they know however there is no evidence at this point this is at the pleading point but is there even a plea that your client sought a higher position not just wanted and knew for herself she wanted a higher position but saw one asked the company applied for one well my understanding of the way u p s did this is people were appointed to the position there was an application process you say your understanding i mean what is the bleeding say the pleading does not address that your honor so so so in other words the pleading really doesn't allege any adverse action does it no but for a contract for a failure to accommodate adverse action isn't even part of the prime aphasia case all they accommodated the concern is is that in accommodate as much as she wanted but she understood that when she moved to san diego however it is our position that it's a continuing obligation and what else were they required to do in terms of continuing to go malaysia what the police said they were what the depleting allege that they were required to do to accommodate her but they were had a continuing obligation to accommodate i know what what is that obligation to do that would be some to actively search for another job doesn't it doesn't please that does it your own or they sponsor you to become a giver two weeks more vacation a year than anybody else what did she want in terms of accommodation there's no allegation is there she wanted to be put in accommodation she wanted to be put in a comparable position if you tell that to the to the employer after she agreed to the demotion or to after she they company exceeded to her request ye she had a condition a physical condition which her doctor said would be aided by her moving to a different location ok yes you're accommodated vat and she agreed to that and she agreed to take a lower position i guess the question goes back is what is what continued to be a violation how does the company know that she even wa something else when she's agreed to something and they were prominent believers certainly understood and got to read her mind no as of december two thousand and ten they most certainly had understood that when the human resources person told her specifically we're not going to put you in a comparable position because he already agreed to a lower position so what they learned in two thousand and ten creates a continuing violation to something that was handled in two thousand and eight once again these would be  allege right yes your honor but if you look at the recent case of neely versus city of santa monica which just came out in january and was ordered published in february and that found it to thirty four for three fifty nine the court specifically notes that in cases where there is an issue of reassignment it's a reasonable accommodation the employees have a deuced evidence obtained through discovery that vacant positions for bill says you have to do in state court doesn't matter in federal court now you know but if bars substantive law goes california the last time was that kind of allegation you have to me no actually this was an case after summary judgment and then it doesn't pertain this case at all on what matters you can wait until after discovering what matters yet they allege before discovery that's not a state state standard that controls in federal court it's a federal standard i respectfully disagree with your honor it's an issue trio but it's what is necessary to prove in order to state a cause of action under the state patchett and that is under california law thank you for your honor good morning i'm caught it wilson from wilson turner cosmo representing u p s in this case it should come as no surprise that we think the district court got this right in making the decision to i'm not  case and as i will go into it in more depth all the comments that the court has made already are basically the things that i'm going to be addressing as well one is that with regard to the transfer of two thousand and eight the statue limitations has clearly run with regard to any possible complaint she has a connection with that transfer or in connection with their allegation that they should have moved her to a higher position as soon as one became available so even though we don't think those are viable claims even if they were the statue of limitations has run then with regard to the issues that she raised in well i mean that's look at the and that's what the district judge concluded right the statu honor i don't think so i think it was pure based on the allegations in the complaint which is that the transfer occurred in two thousand and eight and there's a one year statute of limitations where they have to file their department a fair employment housing complaint so she would have had to file something in january two thousand and nine if she had a concern about that transfer she did not file with the d v d f e h until two years later in january two thousand and eleven so a total of three years after the transfer took effect so with regard to this allegation that there were other positions available that she discovered later that she felt she should have been promoted into again she said those were at around the time of the transfer so she would have a year now until two thousand and nine to raise those issues and there is a provision in the in the law that says that if you don't discover facts until after the year has run you get an additional ninety days your argument was beyond that year and ninety days exactly so even if you assume that she didn't know prior to that time you learned afterwards it was beyond the diego during her two thousand and ten conversations according to the complaint made some sort of statement that she wouldn't be considered as long as she had a filed a complaint what's your best argument on on how you still prevail on the retaliation plane in so far a retaliation in two thousand and ten as opposed to what happened in two thousand and eight well let me just clarify that the there is no attribution of that comment to the two thousand and ten conversation there in the original pleading  original complaint there was this allegation that there was a conversation with angela thomas and nick the coat in january two thousand or december two thousand and ten ten yes and but that conversation was limited to the issue of she wanted a promotion and they said they that she had accepted the demotion but i thought in the amended can point or one of the complaints or survive yet that wasn't part of what the retaliation in two thousand and ten that seems to be supported by a statement that as long as you have this claim pending against us you're not going to get any promotion and the only thing and i'm not disagreeing with you except to the that the timing of that alleged comment which is it was never pled as occurring in two thousand and ten in the amended complaint it was added as a sort of stand alone comment i think it's in paragraph fourteen where that if they're saying as long as you have his complaint we're not going to consider you for any promotions and and there's an allegation that there were positions available and she and she didn't get it have been futile for her to apply for something that she was told the only way you can get that is if you give up your right to complain what part of the problem that we have with that single allegation of retaliatory comment is that we have no be something at the pleading stage that's inferred against your client or inferred against the plaintiff well i don't think it needs to be inferred i think they need their obligation is to ledge facts that support a retaliation claim and they haven't done that they haven't said that she applied for a position well she was it and i hope that infers knowledge on his part that she was interested in a promotion because you'd be no reason for him to say that to her if he didn't know that and he says and you can't have it as long as you've got this lawsuit pending against us how is that not retaliation because what what he knew based on her allegations is that she had a general all she's alleged she expressed its strong interest in a promotion she did not express an interest in any particular position so that's what's what how does that make a difference well i mean you're you're hiring for manager positions manager positions or at least some to refund your bill she said she was performing because the position of or of the duties of a manager she'd been a manager before it's not like her only interest in being a manager if  are a dozen manager positions she's not likely to say i'm only interested manager number seven i'm not interested in one through six she wants to be promoted and if true that statement by mr coe check suggests that he knew she wanted to be promoted and he's saying to her according to the allegation that you can't be promoted as long as you got this claim pending and there's no allegation that she that she applied for any position here already know she's interested and we don't know that there's an application system i mean you tell me we've just been told it's it's by discounts is understanding those not an application system that u p s has positioned and they go to somebody who's got the next job down and says are you interested in being a manager is that i'm true that is not alleged that i didn't ask that no is that untrue that is that's a common system for promotions in a large organisations every time they have a manager position it may not be the case that u p s posts ok who's interested and u p s has a system where they identify people who are are available and appropriate for promotion they have that system there's nothing alleged that there's an inappropriate system so if you p s goes out and decides for itself who's eligible for promotion and she hasn't been contacted and they know she's interested in being promoted and he says to her you're not going to be promoted as long as you've got this claim pending but that was that not retaliation what that's what she hasn't alleged she has an alleged that she went through whatever system i mean interest yet and u p s has a system whereby they identify employees that they're interested in promoting what more does she have to allege she has well first of all she has an alleged that she hasn't said they have a different system of promotion i complied with that system of promotion i was denied a position she didn't do any of those things she didn't express she has a allegation in the context of u p s s system well she identifies that she expressed a broad interest she never says she expressed an interest in a particular position what became clear from the  does it matter that she's expressed a broad interest but not an interest in manager position number seven because basically she hasn't applied for any position so she hasn't been a good guy you haven't told us that u p s has an application system for positions and there are a lot of organizations that down and she would know whether or not they have an application and you would too i presume and you haven't told us that they have an application position so why should we assume that they do well it's not a matter of assumption it's a matter of her obligation to state it read to allege that that you let the people who are managers know that she was interested no there's no allegation that she you have to identify your interests in the particular position well if the complaint says that she was told by a supervisor or a it's the district manager that she would not be promoted if she had this claim pending is not a reasonable inference that the district manager at least knew of her interest in promotion yes i agree complaint alleges as much that there's someone who knew of her promotion not necessarily he's the one making the promotion decision the complaint alleges as much as the district manager knew of her interest but it doesn't say that he's the one who's making the hiring decision for any of those eight or ten positions why is that her problem if somebody in a responsible position knows of her interest and promotion why isn't that a sufficient allegation may not be sufficient proof if the company  establishes that he's the wrong guy but the fact that he knows of her interest suggests that somebody responsible on the company knows it's hard for the company to say we had no idea she might want to be promoted i don't think she standards she needs to basically set out a case that if you looked at it you say this is this is a legit i mean what's implausible about saying gee the district manager said as long as i got this claim pending i'm not going to be promoted what else you have to played well we don't know when that comment was made we don't know or the ledge comment was made we don't know if that was made after all these other promotions were already decided but why isn't that a retaliation i am all by itself to make the one comment because play that she didn't get this job which would be an adverse employment job because of that retaliation why does she have to plead that as an adverse action if would have been futile for her to do it if she was in other words in order for her she was going to be considered anyway she would because she had this she had to either give up her right to have this complaint or or be retaliated against if she didn't give up her right she hasn't alleged and there's just not there's no facts or is one stray comment basically thrown in here that somebody said about things ok i understand and i agree it's a bad thing but there's nothing saying that that she does not say that that kept her from applying for a position she just didn't apply she's not alleging i was told this comment therefore i didn't apply because i thought it was futile i thought that i'm extending beyond your time apologized but i thought that that you'd you don't have to apply in certain circumstances where you could where you also allege that there's no competitive process yet that's a circumstance under which you don't have to apply right but she never said that that's why i didn't apply because there was no competitive process and she never gets to that exception one of the arguments that's the line case that's exactly right that's a special circumstance that didn't occur here and i know your time is if i want more question on a lot of your arguments complaint is deficient these seem like matters that could be addressed in a further member to the complaint should she get be given leave to further men who complain i don't believe so your honor i mean she's already tried four times she did in connection with the original motion to our initial motion for judgment on the pleadings of her most men she filed a a proposed first my complaint that the district judge advised visor was not adequate then she  first amended complaint we brought a motion to dismiss based on that and she filed it a proposed second american plate and the judge looked at that and said that's not adequate either so she had four chances with the judge giving quite specific direction both in the transcript that you received and in her and mitchell order as to what was required to plead it and basically they acknowledged they couldn't plead the facts but the retardation claim wasn't one of the time or not allowed time heaters the discrimination complaint either so as it stands is enough under the pleading rule or it's not it doesn't make any difference how many times he had an opportunity because this was an we'd decided at some further point and the whole idea of it balling twamley is that you shouldn't have to go through expensive litigation to address a case where you haven't stated the facts of that are necessary to state a plausible claim and they and setting aside or tell your case which we've spent all our time on with regard to disability discrimination and the sex discrimination case and obviously the failure to accommodate was time barred that in my mind is just not an issue but with regard to these new sex discrimination discrimination and disability discrimination claims those she simply has not stated even the elements of a claim for under those vers to say there's any and issue of discrimination based on sex or disability or that she took that she sought a position and was denied it because of sex or disability there's no facts that link those two things because she never applied and she never was denied a claim and there's no in disha in any case that any action that was taken against her was because of her sex or her disability more than anybody knew that she had a bit disability since the only accommodation she required was to be allowed to change physical locations and since she moved to san diego there's no allegation she said any other limitations or any other requests for accommodation so there's no evidence of knowledge of disability so essentially none of the elements of stating a claim have been met i know i'm well over my time but thank you appreciate the extra time your hon for for gender or disability discrimination with regards to gender discrimination the trial court ruled that the two reasons he was dismissing the gender discrimination case were one at the february two thousand and  meeting she did not no one mentioned her gender even though it was obvious that they were seeing her that she's female but knowing that she's female doesn't establish a gender discrimination day and subsequent to that there were ten positions eight of which were given to men now the judges other issue with that that's it they did not i'm not asking you what the district judge ruled but i think was a she i'm asking you what isn't there in the complaint of gender discrimination and so far you've given me eight out of town what else the timing your honor that's it that's it ok how about a claim for good or disability discrimination what is there once again the issue there was whether they knew she still had a disability they knew she had post traumatic see the whole point of moving from the bay area to san diego was to get out from under and there's no allegation that i see in the complaint that she claims she still had a disability they were refusing to accommodate e it is alleged at paragraph thirteen that they were in fact aware that she had a condition that could lead to a disability which under the fair employment and housing act is sufficient allegation a disability to give rise to a cause of action well they continued to employ her here only objection is that they didn't promote her what is there the plausible links the failure to promote to their knowledge of  alleged disability and that would go directly to the man the h r manager his comments to her at the december meeting that she was not being promoted because she accepted the lower position so she knew that as an accommodation to her disability they had moved her to san diego and she was saying that we are now not promoting you because of that anything else i would like to address something i didn't get to address that she brought up with regards to the retaliation and that is that if you look at paragraph thirteen it specifically does say that at the december eighth two thousand and ten meeting she met with them to discuss a transfer to a managerial position and that's in the first amended complaint so they knew she wanted to be promoted to a managerial position and it was after she was told that well you're not going to get promoted to a managerial position there's not even allegation that at that time there was a managerial position available no there was only applied to one an allegation that right after that there were ten of them well i thought that there wasn't any specific time period given to those it was just kind of a general statement and then there was no statement that she applied for any of that is untrue your honor it says since january twelfth two thousand and eleven there have been ten positions which she was did video legit she had applied for any and once again we do not allege that there is an application process they knew she was interested in the managerial position they did not put her into one