they agreed reliance agreed management agreed that the time which ms bought the connop former employee of us dept of health would be grandfathered in for purposes of pregnancy leave and purposes a family medical leave an approved lead up until november twenty second two thousand and three while she was out on leave in october she was contacted by the human resources person donna pisa in new jersey reliant has its headquarters in we argue of course that the just court erred in granting summary judgment first of all with regard to count six the district court specifically as a matter of law ruled that wrongful termination to the public policy claim was not valid as a matter of law and i have supplied additional case law to you on that issue because in the state of hawaii we do have frontal terminations as an independent independent supreme court has not ruled that there is no wrongful termination based on family medical leave it has ruled that there is no role for terminations based upon race and sex discrimination but not on that medical  law by the way supreme court which says that you cannot have a wrongful termination based on public policy which uses family medical leave as its basis and that's why i was arguing to judge it does not provide for it's not exactly the same as wrongful termination because the remedies are not the thing in the family medical leave that you have liquidated damages whereas in wrongful termination for public policy the damage was would wrongful termination cause of action the remedies will allow for compensatory damages as opposed to liquidated damages so the remedies are much broader and they would allow statute and in this case we don't have it and congress did not express an intent that the family medical leave act is in fact preemptive of all states and in fact look at the real versus amway case you have california statute with specifically are not by the court were found not to be preempted by the family medical leave act so it would so we have case law already even in this circuit stating that the family medical leave act does not preempt state statutes but i'd like to move on to another issue which is issue of pretext the court granted summary judgment in this matter and just before she proved correct i know that is not correct not very mind that reliant she became an employee of reliant in april she was pregnant and had to leave and august ok now what reliance says is that they looked at the last quarter which means april may june to decide whether or not she was telling more than the other lady leah newman who by the way w record sales record which included vantive usa because again they only became employees of reliant in april and also if you look we also asked for discovery in discovery we asked for twelve of their sales representatives and we asked for statistics because first they told mr spock to kind they were terminating her because there was france downturn in business subsequently if you find out that that there's something wrong with that explanation mainly because they kept on employees and hired new employees and so when we asked for proof how many employees have you hired after ms spot to come was terminated in depositions saying that this reduction in force and the rehiring of people was in order to discriminate against your client we're saying it's pretext to oh yeah she was terminated to miss back to kind yes because if you're going to terminate people and say that you're terminating because of financial problems which and then hire a lot of people and then the people you terminate are pregnant or taking pregnancy lead then that raises a question of material fact is the real reason why you terminated missed by the time you're going to say that she had lowest sales but you're not going to provide as compared to the other sales in the territory as to whether or not the reason given to miss backpack the kind was can be backed up if you will for example when we asked for proof of financial difficulties which is the reason she was told we were project and hire people and show you what so basically you want to just give us a lot of information from which we can figure out whether you're telling us the truth and whether or not there may be a legitimate in for instance she was fired for being reasonable you can present it to a jury and let the jury decide whether without the discovery request we're looking at the question of whether she was actually discriminated against in this situation where there was a reduction in force as for posed to the other persons but the discovery requests i have a very hard time seeing how that could possibly be something that this is justified in a light of the fact interesting is she was terminated in october but they backdated it to september but it's a temper she was still negotiating their period of leave and no one told her oh undergoing a financial promise we need a reduction of force in september we hear from the other side we've taken you over with our questions so we'll give you a minute to  or my name is very mark and i represent a liar i think key to us some of the discussion this morning has been when did the light make hiring decisions and i would like to refer the court to excerpt of record of pages one seventy seven in one seventy eight that's a portion of the deposition of basic and that's where she discusses the firings that have occurred and specifically she states that on april first of all  to relight took over the sales force they had about seven hundred fifty employees in september of zero two five months later when they had the layoff they had about seven hundred fifty employees less sixty nine  off what is key is that when is when they went to eleven hundred because the brief opening brief that page thirty three suggests that they went to eleven hundred within a couple of months after the layoff but that isn't true it's clear from this six deposition that that increase in hiring was as of the date of her deposition which was october of two thousand and four well but as i read that she says well now october two thousand and four we have eleven hundred but that doesn't say when they were hired to do says now that's how many we have is not right so it's entirely consistent as a logical matter with which he said that well we  september thirteenth by sixty nine people in two thousand and two and as a logical matter it would be entirely consistent that when they went up to eleven hundred the next month i don't  look there's a logic but i'm saying we know two points we know the point where what is it what the situation is in september of two thousand and two and we know what the situation is  october of two thousand and four that's correct and we have no information in between there is one additional piece of information which also is from her deposition and that's that in december of two thousand and three they brought out a new product as a result of the what seven hundred fifty minus sixty nine so call it roughly speaking just under seven hundred eleven hundred and we add how many when the new product comes out one hundred twenty five that leaves about two hundred seventy five unaccounted for yeah and they're still there so there's some blank spots there are that's true and the first and if they were all hired within two months of the run of the rest of the reduction in force that works against you it would but there is no evidence that there was any hiring that occurred immediately and why is there no evidence because we can get discovery well i think you know i think the answer is yes there is we didn't get to discover was there was a lot of discovery they measured the sales performance for a given period of time a three month period of time when both employees were fully and actively employed and that's the same three month period that they used across the country throughout their whole sales force with respect to the second product bought of khan's achievement was eighty seven percent of goal whereas human also female and also female who had recently been pregnancy the was ninety five percent now that doesn't seem to me consistent with what i just coerced one product she sold more and then you tell me but as to both goals she was inferior that there's not there's a glitch here i don't get the only get only explanation i can offer is it could be that they had different sales goals because they did have different territories so she could have which i gather was centered in san diego we did provide information that she requested with respect to f and nellie issues and pregnancy discrimination claims to to the wider region which included  district in the terminology or company uses she she did request it for the for the region as well as nationwide and you didn't you didn't want to respond to that either you said no we're only going to answer those to test questions with respect to hawaii that's correct and the statistics were two people that's correct and that in the decision was made as between those two people in other words if it wouldn't have mattered how about a kind with respect to her counterpart in california because that was a different it was a different  p and and the company looked to hawaii separate from how to do the different groups i would like to add also that there is no evidence of any any circumstantial evidence of any discriminatory animus on the part of the company with respect to pregnancy or anything the way where and when the company hired her in april it knew that she was pregnant she requested leave it was immediately granted she then had to go out was continued to run until it expire with respect to the issue of whether a lie has a wrongful discharge cause of action we clearly do it was created by the white supreme court in the partner case and it was later limited by the hawaii supreme court in the ross case and in the ross case the hawaii supreme court stated that where you have a remedial structure within the statute that provides a remedy that it wasn't appropriate to also have a claim that might have a remedial structure within it hawaii how many people did that involved it would have only involved between two and three people when they when they commenced employment april first of all two they had three employees  prior to september when the layoff was made one of those three employees was a male left the company so known for those to the region that she won there there was a smaller group within that region that operated out of her direct manager mr bergeron he was in southern california there were approximately forty representatives in that group i and the the reason that that information was in the record was because of the ethanol analysis and whether there were fifty employees within the employment site and there the record shows that there were forty one employees within  within the seventy five miles of berggruen implement site which was all i have i can understand why not nationwide reaction force i would have a hard time understanding the standard that would be applied to a court's district court discovery order and there's no indication that providing that information would have made any difference in the motion for summary judgment the reason it wouldn't have were a whole lot of people that were on pregnancy leave or found my leave and this would be showing that it was  response to discovery asked two other discrimination lawsuits you didn't just answer as to why you would answer also as to mr ruffin's region which consisted of hawaii california washington arizona oregon idaho and that but which you didn't you didn't use a broader region as to the economic downturn evidence because you were and host claimed that she reported the scribes that was a terminations by the same supervisor was that outside the region yes that was in ohio anybody in the western region the analysis was for hawaii and why only they determined to lay off one person in hawaii and that's why we provided this yes but what bothers me about this is that if there is a pattern within the region of some form of forbidden discrimination that panel will not necessarily be revealed by the filing claims i mean there are lots of people who for me very as reasons don't file claims they don't know they have a claim a suit difficult to file you know all kinds of stuff so it could be i mean i don't know it could be that there is evidence in the pattern in the region that would support her allegation want somebody cut out of discovery twenty six pretty broad not only relevant evidence but evidence that might lead to relevant evidence on the natural twenty secs and then evidence but that's a little that that cuts a pretty fine for me and the other hand i'm sympathetic to the company that you know you shouldn't have to sort of open up your files for everything and you know had had we made the decision had the region been  within this entire region you have to eliminate fifteen positions i think it would've been fair then for us to provide all of the evidence for that region but where were the directive was very specific it was to hawaii and were there were twenty five hundred miles away from the mainland and it's just not realistic the company who is trying to save costs to the end is like we're going to transfer somebody from california to hawaii well i understand that part of what i'm after is but if there's some pattern within the region where i'm totally making this up this is not a charge against you or against your company but if there's some evidence in the region that we have somebody in the head of that region not nationwide but just in the region who says well i want to get rid of underperformers and my definition underperformers it is ok how much money do i put out in terms of salary versus how much do i get back in terms of sales and on a definition somebody goes out and crimes he leaves an underperformer i want them all out of here well that doesn't go to the questions well you want to transfer somebody from way into the mainland it goes to well one of the really doing now i admit i totally made up that scenario i mean i'm there and i have no evidence whatsoever that your company came even remotely close to that but i would think indicate that the first demand was to rely on produce coaching plans for the professional sales representatives and saying you just write a second demand was that any other discrimination lawsuit as to which you responded on region basis the third demand was records showing a downturn in business which you respond to on a white racist and the fourth one was a list of positions and rehires after the territory referring to this region yes i am and and i'm very touched in the edge of the driveway as a question in terms of what exactly did you ask for with respect to the san diego region that's what they said so if we show that someone else who was lower in sales than she was and who was not terminated in this reduction in force then we could argue that their reason w group quantity sales for the whole i don't know i would like to take a look at the figures from that i think that's something i really would not know until i actually see the figures she was told that she was terminated because not because she was the lower of the two in a wave of because she was the lowest in the entire region yes she was told after the first she was told there are three duction of force due to financial problems then when she found out there are hiring people and had a new product then she was and she filed a complaint then she was told well you were terminated because you have the lowest in the territory and so we wanted to be there with the various explanations given at various times five reliant for terminating her it was a new hire in hawaii it was in two thousand and four there was a new hire yes and they did not offer on the spot the kind of job but page sixty five of donna pay six deposition i asked her when did reliant hired new n my human resource database and i asked for that information from reliant and they said they would not give it to me there may have been more questions that you had  about the facts in the records specifically i think there was a question about my asking about lawsuits and claim some pregnancy in family medical leave the answer that i got back from reliant was no there had not then and