case ruled that he was not the nine hundred that the plaintiff didn't show that he was denied nothing will a benefit yet found that his assertions pay was removed twenty nine c f r eight to five point two one five states and an employer is to be returned to an equivalent position upon his return from after malloy that code also goes into further detail defining wouldn't equivalent position is defining that it's equivalent terms of pay benefits and working conditions including assurance pay would fall under that definition is either a privilege of the working condition or as a obviously it has to be taken away you know for a reason it's great that you know there's this categorical imperative that nothing whatsoever can change for any reason you know if the person commits a felony while they're on it doesn't require that i mean it really does turn whether the district court's findings correct and i mean this is the initial question is why isn't his testimony of known that there was no discriminatory motive for his actions why isn't that a long enough to support the verdict here well i think when you look at a couple different factors one obviously if we're getting into in those kind of things to legitimate business reason one this individual is the same person who also removed his you have any defendant and what are we going to say you can't rely and defendants testimony you know what i was going to say was he was the person who moved the assurance pay in two thousand and ten when he took a out as i understand in some aspects yes i'm saying look at what the other ordinary yes and i think if you look at the other documents that are in front of it at that point in time and look at what the actual investigation was you have mr russell increasing in sales by a hundred twenty two thousand i don't say that to say that his decision was incorrect but say what facts was he actually looking at to make this decision the number to get that commission it was impossible to almost the number was two point six when he came in the store is one point three the highest store in the district was only at one point and that was store of the region two years in a row at that point in time so to think that he could hit eight hundred thousand plus that his store where's the rational basis for that so i think when you look at that you say how could he possibly have presumed that that number was possible that particular store when no other store in that district  neither one of those situations happen that he was removed but i think the biggest factor is you look at the fact that he's reviewed every three months he was reviewed from two thousand and ten two thousand and twelve up for review seven particular times every other time except the time after he uses that  and you know the jury found otherwise heard everything and other well yeah but i think if you just go back and look at those facts and that's where the difference is we look at the documents themselves here you have a person that's testifying based on facts that are at the litigation aspect not providing any documentation that was shown at the actual time of the decision making process and that's where a concern comes into play jeff young the district manager disputed the decision said look i don't think it should come off at this point in time they relied on no facts insurance they said he said it would be for two years and i remembering that it was initially all managed to put on for one year to start out with then their extended a three month basis or up to a year the two year as you restored the person i'm sorry the insurance pa for that finding and in fact if you look at the interactive torrie responses that the defendant provided mr downs when this case started he didn't state that look the two year period had expired and that's why i removed him he stated that it was for the sales not reaching being able to be afforded off the store which in fact isn't correct either because the store for the first time in its history and a net profit at that point in time which would have included his salary and the fact that mr wesson pre sales by a hundred twenty two thousand actually covered his entire salary for that two year period of time not just the difference between the commissions and the assurance pay so that two year period of time was made up based off of two comments in the record one with miss bartos who was opposing counsel at trial or she was kind of pondering the fact that this was a almost exactly a two year  but never asked a question or made it actually a fact the other one references mr grassley saying that during that two year period because it was two years when he approximate came off though a little bit off by about a month or so but neither one of those was a set to period there's no evidence no facts to support it two years that period of time and so that kind of i think if you were to look at the set two year period of time that was the case it would make a large difference in this case but that was not the facts in front of the court if twenty eight people were removed how many people were still removed for the same reason as mr russell so one of the main reasons people come on for sure and pay was their stores were having commissions that were above the assurance paid because neighbor salary was low or maybe they're at a higher volume store so at those points those employees would come off mr rust mr dallas he also testified that people would be removed from the insurance pay if they were truly terrible performance and he said there were some very terrible performance here but mr russell was not one of those as in that noted he was  very good manager and in fact number one in the region in most of the categories that he said he would have looked at he stated that he would have looked at cash ticket average related product maximum sales than for dollars mr good house or mr russell was number one and cash an average he was number one in related maximum sales he was now in top half percent of down for dollars the other factor he said he would have looked at was employee development in terms of employee development we have george first who was his assistant store manager at that time right around the to him he was removed from assurance pay miss first was put up for the lead program which is training to become a store manager and eventually replaced mr good housekeeper mr russell when he  stopped being store manager so you're you've been talking about the interference claim which does not require any showing up intent i think we may have to that yeah i was i'd start out with the inference i think only this argument goes somewhat to the retaliation argument but also a so so one sort of basic question is because this was a bench trial is your complaint mostly a question of legal error by the district judge or clear we are only as fact finding i think in terms of the interference claim it's more of an error of law in that aspect because one she didn't find that there was an interference with the f mily benefits yet stated that there was removed pain that occurred while he was on his a family leave thereby denying him enough m benefit so i think at that point that's an error if she didn't get to the next point to determine whether or not that would have been removed regardless of his f mily use but i think when we look at the fact that it hadn't been the seven previous times it kind of makes it look as if that was the case the one question on the retaliation claim that i wondered about was cronus yes and what he had compare a terror and if so what did the district judge find about her yeah i believe she was compared to should there almost exactly the same time she'd been put on pay the exact same day when o'reilly said transitioned over she'd been in a syringe paid just as long in fact a little bit longer because mr russell after his first definitely missed about two months when he was removed from it so they're identical in those regards they've both been store managers about the same time and the district court found that he was she wasn't a comparable employee based on the fact that she had gone to a new store but so had mr russell been an insurance but forty four because he lost about two months in two thousand and ten and so i think when you look at those kind of factors it's very simply situated and if you also look at two of the other employees that were on that list as well mr b on that i just want to address a couple of things specifically that were just said first with regard to the two year opportunity that was in fact testimony that was good testimony it was on page one seventy five in response to a question by the judge she was interrogating him a she did it various points with various witnesses during the trial for clarification as to what he was saying and he points out that what we had discussed at this meeting back in december of two thousand and ten was that he went to the appears to i was giving him this to your opportunity there would be three year three month intervals reviews but i was giving him a two year opportunity and that was what ran out at the time the surance play was ult opportunity of two years based on what he was making and based on his desire to be close to home and not willing to move that we came to the point then when a decision had to be made ok you've done good things here you've grown sales you've grown profits but not to the level of the salary you're making in this particular store that's on page one seventy five also it was in responses to the judge's questioning there was no evidence i saw that only twenty eight managers were removed as i point out in the brief i could ask you is in charge of one hundred two managers  his trial testimony again and this is in clarification to questioning from judge parker pages one eighty one eighty one she said there was a point where he it had been mentioned in iraq a transfer think that he was the last one posing counsel table talk about that and other people after mr russell's take you know i honestly don't know where that would come from in the record so the testimony you get does key was that he was not the last interference that the judge should have found as we put on the brief it's an interference if you lose in title meant there was no entitlement at first it was a one year guarantee he had that full year then and gives him is another opportunity another two years he so he's gotten all that and the is the second to last one removed there was no entitle one to assurance pay his own testimony and we quoted in the brief was that i understood it wasn't supposed to last forever there was no no retaliate in the motive here what the judge found was in this is paragraph fifty two and sixty of her opinion he was removed because that was the economic mechanism of the payment system now we may debate whether all riley has the best system for you know paying its managers if we were a business school them want to do a case study that would be great but the question here is whether or not that was a violation a was that an entitlement that was taken away in the answer is no it was something he was actually given far more of than his fellow managers because they wanted to accommodate him they didn't want to get rid of him they tried to accommodate him in his location an compared to and in particular what about cronin and he's mentioned two other individuals why are they not comparable because the assurance pay isn't based on compared to other people it's simply an economic formula between what that particular managers particular story is doing relative to his salary and that applies to everyone and that there are no comparables in this system because each person is treated as an individual correct so there can be good dusky testif claims or any claims discriminatory treatment if the employer can simply say each individual is a unique individual and therefore there are no rules if they were saying that we're just making decisions on our own assessment you know subjective assessment here they've got numbers they base it on the numbers of the store versus the salary rather than just some cuz you know i like this manager i don't like this manager it's here's the formula you you meet it or you don't and that applies to every single manager the same the krona differences it was mentioned it was it was a new store well there was little confusion there it was not just new to her as the lapeer store was an existing store that was new to russell the store that cronin had was a new store that was now a new to her a new store altogether just a grand opening with no no background no no history in the community to try to build up russell had a store that was existing and as good dusky pointed out he was doing better than the other manager he was doing good he was increasing sales they didn't want to get rid of him they didn't want to retaliate they didn't want to take away stuff from him they wanted to keep him because he was doing a better job for them others but under the formula that applies to every manager individually with their store h salary didn't justify the continuation of the assurance pay otherwise you're saying it has to be a permanent guarantee and that was never what is intended to be and he was extended way past what the guarantees were is there written document that says that there was a two year commitment in two years where there is no there was nothing written that was that was good speaking to what his discussions had been at that meeting at the original meeting that he had  employee we took him off and off the assurance pay but i felt he deserved a meeting i heard him out i talked to him you know i said well you know you don't like the story you've got another store close to home which is what you want this is part of our discussion that the store  he said in the store isn't doing what you needed to do but i'll give you the opportunity there for two years and he gave in that two years most of the others were off or to well before two years cronin the only one who had not been taken off  russell i would have to interpret is he was second to last in that sense that cronin would have been the last what about these two other individuals your opponent referenced well again those individuals  comparison will sure maybe they were there longer than two years i don't i don't they were the goal is not to your guarantee to them at all they were just kept on the assurance of pay for a long period of time the only two year guarantee was specifically an oral thing with russell  and the district judge made findings you said to us that paragraph fifty two and sixty regarding that he was wrong with the year interpretation the facts are her in a plausible one was that he was removed from assurance pay simply because it didn't meet the economic formula that the compensation of o'reilly calls for did she make findings of fact regarding the two two year aspect i don't know whether i would have to go back and look i don't know if she specifically referenced that or  not think looking at those two paragraphs that you cited there is no mention of two years whatsoever no there is not but it shows that when the above her ultimate conclusion the one that matters is that he was not removed for any reason related to the f a he was removed because he was not making the amount of money that the economics of the payment plan called for you presented to your theory to the district court as a theory it was in the new theory her decision has to be made based on her overall assessment and obviously since her opinion is only this long and i've only got half the transcript this long she can't write down absolutely everything about everything she makes a certain set of findings the ultimate finding be that he was removed from assurance pay for legitimate nondiscriminatory reasons unrelated to his f m l e l f l a leave and that's what really i mean if we were considering a jury verdict and you would mention that judge kathleen i mean you just get a little bit who knows what goes on in their mind when they make a decision you just get an ultimate decision pretty much on the jury verdict form here at least we have some measure of a few pages of information from the judge but no i don't think that she specifically mentioned the two years but again the ultimate question is not whether it was guaranteed one year at the beginning or two years more later by god does the question is was his removal related to his f m l a leave and the answer is no it was related the testimony of every witness they wanted to call she accepted every single exhibit at the end she just made a blanket admission of all the exhibits that were there you know mr russell was given every opportunity to carry his burden of persuasion with the  judge he simply failed to carry that burden as she has sussed the evidence and because her assessment of the evidence was plausible it has to be upheld on appeal what do you see about the temporal connection between  came off just before i went on f m l a leave but he was put back on when you know he complained the ultimate decision at the end came coincident of the f m l lately it was right before the end of that two year period that he had been allowed but coincident alone is not enough there is be something else to show the intent the there was an f m l a you know related motive to the action and again it was the matter of the the simple economic numbers that again they didn't want to lose him they wanted to keep him he was a good employee who but they had to keep him at a salary that was commensurate with the way his sales were going if he wanted more money he certainly had the opportunity still to increase his sales even more as he was doing if he had simply stayed on the job and kept working he might have gotten back to the level that he wanted to be at that's what the system would ask one to do but again this can't be a legal determination about whether or not they have a good system it's a question of whether or not they were honest about why they did what they did they took them off the insurance paid they did not discharge him they did not fire and the did not take him back out of the number at the time that the reduction of insurance by the removal of surance pay happened i don't remember that specifically coming up at the trial in the record perhaps my my opponent can can cite me to something on that but i don't remember seeing that as i was taking my little note cards reading through the transcript no further questions good thank you very much that's what i kind of touched on a couple of the points first going back that two year period and the portion that he cited from the transcript that states were going to give you an opportunity after two years based on what he was making based on that  and his desire to be close to home and not willing to move that's when we came to the point where that decision had to be made so it wasn't referencing a set two year period is just stating it had been two years since that point in time we look back again and made that decision so big difference between the fact that it's been two years and that there's a set two year period was there an oral contract between your client and your opponent that there would be a two year period not to a two year period we believe there was an oral contract the fact that you'd see an assurance pay as long as the sales continue to increase but no to your agreement was part of that argument and in terms of the assurance pay some of the questions that come out about him being the second off the last person on insurance pay that is incorrect what the statement was q that he had misinformed the court summary judgment was was that he was the longest person and after molay he was in fact the second longest but not the last person there are still number numerous people on assurance pain if you look at exhibit five time and when any new store manager comes on they put on a show and space the opposing counsel also brought up the fact of this formula that he says mr russell failed to meet when we look at that formula question is if that's the case they were truly using a formula a what was that formula and b why wasn't that formula the case for his removal any one of those seven prior times and that's i think the big question as to why it just happens to come up the two times he loses sharon's pay looking into the facts and relied on the particulars facts at that point in time and it also shows they have to actually establish some facts that they didn't actual review of the stand in this case they haven't provided that and so i think there's a misinterpretation of the law and i think the judge gave extra deference to i understand the burden does stay with us but they also have to produce that evidence otherwise they can't use the honest belief and which point would have just flipped to the pretext argument and shown the similarly situated employees at that point in time and so i think that's kind of where it varies from that point and in terms of the sales you asked a question about what the sales were his sales when he came in were one point three three million and in order to hit this breakout number it would had of hit two point four to two point six was where it came out in terms of a yearly annual sales and by the time he was done he was at about one point seven million after that two year period of time so huge increase he would have essentially double his sales or than a two year period of time to meet that aspect let me ask you this is this i understand this assurance pay structure were something that was transitional you know it was permanent it was really a temporary situation from all the employees that being the case what sort of circumstances would have had to say this for your client to some point have been removed from assurance pay with out in the company during a film only violation without retaliation and with a contractual problem i think there's three situations one where he just isn't performing up to par in terms of his sales are increasing his net profit and increasing his stories just failing which wasn't the case here the other would be sales increase to the point and profit increase the point where he's his story is equal to that of the commission off because the intent of the program was so that their store managers didn't lose this large portion of pay but the assurance of pay was to cushion the transition to a status  the store managers or many of them would make less than these shuras pay so that there wasn't a guarantee that everyone would have their salary or their compensation base system i guess the transition was from salary to compensation equal to the assurance pay what you just said in the case that seems to suggest that this stores were trying to make certain that they set as fast some sort of guarantee that once they were on commission entirely they were never their salary or their compensation not salary but their compensation would never fall below the i guess it wasn't quite clear enough with how that sales aspect works so it's month to month and then sales are based off the previous month commissions act and so what would happen is in place would start breaking out three four five months at a time but maybe january and february when then the slowest months they wouldn't reach that and so that's kind of when they break them off of it that point when they've moved close enough so that the employee is not losing six eight ten thousand dollars a year so that they don't want to lose their employees that's when they transition off of the assurance pay when the story kind of caught up to that point in time w for a lot of employees would have taken that long because the salaries were in line with the story that they were originally at thank you thank you both for your argument the case will be submitted with the court called the next case please