the summary judgment issues there was it was timely filed and in this case the plaintiff would apologize appellant would maintain that there were reasonable facts in dispute on both sides and it's shown in complaining about being required to transport what he was at the understanding were hazardous chemicals based on what his previous supervisor had told him it was his understanding that under the law you were required to  have specific licenses and and and there were specific requirements for transporting these hazardous chemicals yet he was required to do it to you know meet certain correct i believe so yes there as it ends up you do not need a particular certification or license to transport these detergents correct so we don't have a we don't have  statute playwright i would agree with that but that was not my client's understanding at the time and i would and his understanding was based on what somebody had told him at a previous place of employment correct believe it's the same place of employment your honor but previous supervisor either way his previous supervisor had made it clear to him and he trusted that i'm having trouble that i have the same question the is it contrary to law to transport these products without a special license or is it not your honor i i do not believe that there is law that supports that it is contrary to law however i do believe that mr reith had a reasonable belief that it was a violation of law and that he was complaining about that reasonable belief and that that is what resulted in him being retaliation and when and in what what is your best case as a protected activity can just be based on a reasonable belief sure when that where there isn't a law underlying it the best case would be the same case that i cited in response specifically they can be extended to include the employees reasonable belief of an unlawful activity and i but any time an employee think something might be wrong for their i do believe that there are facts in dispute here as to whether mr reith reasonably believed this to be a violation of law i could see a case where for example let's say in this case mr reef had raised the issues and shamrock had said no no way no how you don't need to have this special license look here's the material data safe to see or something saying you don't need this then i would agree it would be really difficult to come to that almost impossible to come to the conclusion that mr reith was reasonable in his belief that this was unlawful activity however in this case we have yes we don't have a statute on point saying that this is unlawful however we have mr reef putting forth that his prior supervisor informed him that these were required and it was a legal requirement for the safety of the public and the driver step back years so your argument is that because he had heard from a previous employee or somebody within the organization that he shouldn't be transporting be purchased without a certification or a license that he complained to shamrock regarding that and then they put him on a performance improvement plan and that was pretextual to wanting to terminate him because he had commented about transporting detergents based on something that had been said to him by somebody else i mean that's the case isn't it that is basically your honor i mean that's a retaliation claim you've got other claim yes yes there are other claims there's a small addition to the retaliation claim that i'd like to briefly add but that he was also complaining about what he believed to be unlawful deductions from his paycheck right but that be ok i understand that  between this case and threepwood regarding the medical condition that he had or was a good lady to a child or a family member this was related to his child and was was that complaint or that request made or was that knowledge imparted to shamrock before or after shamrock had determined to terminate him your honor it is our position that it was made before there are facts dispute there's a declaration let me back up one second the only evidence that the defendants have presented in support of their assertion now that the decision was made to terminate him before he made that request is a self serving declaration of the h r representative there is no documentary evidence there are no e mails between anyone at shamrock evidencing that this decision was made to terminate him and tell he calls them on the morning of february twenty second twenty six tells them of his daughter's debilitating diagnosis and that he will need some time to care for her and later that day the paperwork is drawn up to terminate him therefore even i mean plaintiffs maintain that the decision was that day pal and i apologize however there certainly were facts in dispute as to that issue that could go to a trier of fact to determine when that day actually was whether that rather than this one has fairly significant excerpts of the record i believe his and scuse me has paystubs appear on exhibit c to the excerpts of the what i believe to be his final pay stub indicating that he was not paid for the vacation hours that he's asserting wears i thought the only evidence you had was his testimony of looking at pay stubs that he did i didn't think  may please the court andrew summer counsel for share mark foods company this is it's a fairly straightforward case of wrongful termination the appellant mr reed had the opportunity to conduct significant discover this case both by deposing the key decision maker christian can see who was involved in the terminations decision as well as they each are represented that monica herbert despite the discovery has been conducted in this case the plaintiff has timing and the motivation for the decision the terminations decision was made on february twenty fifth and we have provided testimony a sworn statement from christian can that supports  timing of that decision is there any other documentary evidence to support that we sit down reflects that decision being made on the twenty fifth correct there is in the declaration kris jenkins he does identify as part of the time line that he received a sales report by e mail on february twenty fifth and in the morning and that's what prompted him based on his review of the full sales performance from the first to the twenty fourth of that month said that mr reith was not going to make his sales goals and based on that information they put in motion they knew that they were going to meet with him on march first one way or the other based on the performance improvement plan they made the decision or christian jenkins made the decision in consultation with management to then proceed with the termination and st jenkins continued to monitor mr rhys performance through the first to ensure that he was correct in that he was not going to meet those goals and then a despite having the opportunity to cross examine defense witnesses in this case he hasn't offered any testimony that would suggest that in fact the decision was not made on the twenty fifth nor has he offered any other document to document terry evidence i just asked  it appears that mr reith is claiming is that he had one more floating holiday but he has not provided any evidence indicating how how it is that he had this additional floating holiday we provided the declaration monica her miss miss her was deposed in this case and she has testified that she has reviewed the the payroll system confirmed that the floating holiday was not to ducted and specifically that's a floating holiday where where mr reith claims that he worked on january first and that the employees across the board were being deducted floating holidays for the day because they presumably weren't working he sent an email to chris to fax turner in  management indicating that he had worked on the first in response to receive email and mr turner responded back indicating you will not be don't deduct essentially for this floating holiday copping payroll and that was an email to the mystery if there is no evidence in this case that in fact that flooding holiday contrary to that you know by castro was deducted now in terms of that is the decision in this case you know there are wrongful termination cases where there's subjective reasons for terminations it can be how an a an employee interacts with customers with coworkers things of that nature here this terminations based on objective criteria it was based on sales goals they had measurable specific sales goals that were identified for mr reith that he admits he did i achieve and he does not claim that other sales reps were not subject to these types of goals when  though they gave him two months well the game one month correct to perform and then he was gone right but this was the culmination of a period of counseling beginning at least in october of two  so they had met and this is all in the record the plaintiff had met with his managers just cus his performance and that he wasn't making the mark in achieving these goals they then not until a number of months later on did they actually put him on the performance improvement plan and then at that point they even reduced the sales goals in half to a very low threshold essentially given every opportunity to succeed and then he didn't make that market on that basis they terminated him and so this wasn't a rash decision you know shamrock only terminated after giving him this opportunity at counseling to improve his performance and then providing that thirty days for the performance improvement plan in terms of the  claims there needs to be evidence that the termination or that that the qualifying leave was a negative factor in the termination simply here want to go back to you question the she asked if there was any objective evidence supporting the date when shamrock determined that they were going to terminate mr ricci and you said well we've got a declaration of the person that made the decision to terminate mr jenkins was think it was arrest all right mr jenkins  so are you saying that the evidence of this and appeared to me from my review of the record the evidence of this what we have here is that mr jenkins decided in his mind that he was going to terminate him on this particular day i think it was in january and then is it the next day that mr reed advises mr jenkins of this circumstance with his child that's what mr reith alleges that on the twenty six of the month the only evidence that we have back to judge moore gives question the only evidence that we have in terms of shamrocks decision to terminate is the is the declaration of mr jenkins that this that he had made this decision and his mind writes it's not document he didn't send an e mail doesn't make a note to the memo to the personnel file anything like that mr jenkinson self there is no specific document what we do have is the e mail he received with the sales targets whether it's a mystery for us making than then we have him in consultation with management it meant making the decision to terminate on the twenty fifth as indicated in a sworn declaration then we have a declaration from monica herbert indicating that the next day on the twenty six she completed the terminations report we provide that termination report that on signature a declaration then we have testimony that a meeting was scheduled with mr reith and then he came in the office on the first for the termination meeting and so what's key here is you know especially given california law on the obligation to provide final paycheck on terminations and that they wanted to meet with him in person they had to put the wheels in motion several days before the actual terminations both in terms of making the decision completing the complete the  termination report requesting the final paycheck calling him into the office and then having the meeting and the opposing counsel could deposed all of management that was involved in the termination discussions they could have provided testimony attempted to try to undermine that decision they haven't provided any testimony from christian can hurt her or anyone else in management that would somehow impact this issue and create a a genuine issue of material fact proposition it's consistent with all other authority on this point that you actually under subsection c you need to establish a legal violation you can state that there was a good faith belief that you were violating the law and therefore stay to protect a claim for protected activity and here there was note testimony by mr reith that he reached the house for the the cleaning products that he refused to even transport them let alone that into doing so that would be a legal violation and just to clarify a minor point that he claims that it was a for an employee at his former employer that told him that a hazmat certification was required to transport a certain products it wasn't samra that's what that's what i thought as well from the record and in terms of so there's a question about whether i mean there or the the undisputed facts are that there was no protected activity on the on the two parts of the eleven o two point five claim and even if he could meet that threshold assuming argue endo there is no causal link or or evidence of a pretext there's he has not provided anything outside of proximity in time to support that claim so you're saying in order to establish protected activity in this case he would have had to have refused to transport these chemicals under the  guard case correct and all there's other mostly decisions from the district court level but all the cases that have supported the notion that there needs to be a refusal and those words are clearly delineated in the in the statutory provision  so it's really two parts you have to communicate a refusal and you have to that refusal has to can concern essentially a request that you participate actively that would be unlawful and and so the chen decision for example makes clear that mere sequence is not enough to establish policy asian there's a line of other cases that we've cited in our answering brief that reach the same conclusion  here you know we simply don't have any evidence that would support any such causal connection and then as for the section two eight zero two claim to so case by the how one supreme court is very clear in an employer may have a travel allowance it's provided to compensate for on the bill related expense that expenses for work purposes and we have provided testimony that this allowance was determined based on the expected out of pocket costs by the account executive and mr reith did receive disc written discovery asking for information documents to support his actual out of pocket expenses to determine whether in fact he could be owed more than was paid by the travel and he clearly responded that he had no information or documents did he have insurance he did it that's mine for standing from his just him was he required to have insurance as part of his employment and use of his own vehicle by shamrock recliner by shamrock he was and and there there is no there's no authority that would prevent an employer from requiring that as a condition for driving a vehicle for work really differences and  it's you know we were looking at he provided or he referenced a repair estimate he received but that the district or judge ruled that that statement was inadmissible because based on the best evidence that wasn't before the district court even if it were admissible he's talking about i believe a couple thousand dollars mr reef was receiving twelve hundred fifty dollars a month so by any reasonable measure he would have been compensated for that type of  that's all of his loss and then you know lastly as to the the floating holiday question he mr reeves just hasn't referenced any documents or anything that would show in fact he was deducted for that floating holiday contrary to what was represented to him by by fax trauner in that e mail and in this conversation and so we based on that based on the fact that the floating holiday was not deduct and there's no evidence to support that then all of the section two to four to a one and shoot to six claims that are attendant to that allegation would be appropriate for or for you now good morning for the last time today thank you and first i would like to point out the issues that were just being discussed with respect to the deduction of the the case in hours that he had he looked at his pay stubs prior to january first in december of two thousand and twelve and saw that he had a certain amount of hours and then they were deducted after the first he did send the e mail counsel addressed asking that those be requited back because he worked on the first and those were not recorded and those yes there's the documents have to be explained it's difficult to see from the paste of itself whether or not he got ours because we don't have the extra and sick evidence of how many he should have gotten but with his declaration it's explaining how many hours confirms he was not yes your honor yes second i would like to briefly correct my statements previously but it was his supervisor at the current employer the court and opposing counsel are correct that mr mr reeves declaration say that his belief of the unlawful activity was based on something he had gleaned from a prior employer so i apologize for that misstatement and wanted to correct it finally i would like to address the issue of the timing of when this happened not only with respect to mr reed's informing his company are not young sorry his young daughters multiple sclerosis diagnosis and his need to help her but in addition it was before the end of this performance improvement plan the his supervisors polled the sales report as is grant is said by both sides they pulled it through the twenty fourth of february however he was supposed to be judged through the first of march in many sales positions there are lot there's a lot that happens at the end of the month that people rushed to get things done and it's our position that that's an additional piece of evidence in support of the pretextual nature nature of this terminations that regardless of what mr reith did to satisfy this pip and had he been able he had he had the time maybe he could have satisfied the tip or the pip i apologize  but you know this was determined at an early phase before before all of the evidence was in whether he met the goals or didn't meet the goals when he was in q was trauma needed what's the pretext here is that the complaining about transporting detergents or is it making a claim under the family medical leave act and the california counterpart or both your honor we would maintain that it was both that within shortly before he was put on the pip mr reith made the complaints about the various issues that have been talked about today and then the day that his terminations paper was drawn up which was still a couple of days before his actual terminations and the end of his performance improvement plan that morning he informed his company of his daughter diagnosis and his need to take f and the l a n c authority leave to care for her was he performing in a court i mean i realize your argument that he still had a few days left on the first month of his performance improvement plan but up to the point of his determination had he met the goals of the performance improvement your honor i believe that it's a difficult answer to say we would maintain that he was on track to meet those goals the goals of the performance improvement plan laid out something that he needed to do within that time period and so without giving him the full time period but judging him by the full goals is it's pret i believe it would be in the sealed portion of the record that i believe mr reef and i'm paula jones i don't have the cite for you here had a spreadsheet indicating what where his sales were and which one in expected to close a timely and they were as well as the contacts that he was meeting with and all that type of stuff that was required under the pep i believe that's in the sealed excerpt which is much stub but it's not really clear what mr accrued before the payout and i'm not sure there's anything here to support you know evidence that his but i believe that it needs to be read in connection with mr reeves declaration explaining it's the fire the hours are ok does anybody else have any other questions no thank you