or thank you very much in this case i think has a very focused issue and that is whether reasonable jury could conclude based on the evidence that was presented that she was replaced and i think the matter is very simple in the lot of ways because we have three strands of evidence i think which supports that which would support a jury in believing that first of course is we have direct evidence she was told by our supervisor  when they were hiring the replacement that we're going to hire a replacement for you we're going to hire a replacement for you in may so that you have like three weeks to train the replacement that's direct evidence that she was being replaced  by mr manic i think there's a couple other evidence lines of evidence which corroborate that one is simply the timing the timing that she was you know she was going on a leave in june of two thousand and fifteen in the replacement was hired three weeks before hand again for the purpose of that she would be for the overlap with simply for the purpose that she could train them and that temp coincidence between her leaving and his hiring i think supports the fact that he was a replacement for her with a different job title occur yes a different job title and undisputed that at least some of his duties were different than hers curragh one only one only and that is that for two three hours on some weeks not all weeks she assisted when there was a new hire orientation and i was paid substantially less than her that is exactly correct which i believe is exactly reflects two things number one they couldn't hire somebody earlier in october of two thousand and fourteen at the at the rate they wanted to and they had to pay her premium and that's the motivation why they want to keep him instead of her now they could hire so they found somebody they could hire for a lower rate and so when they replaced them they wanted to keep them rather than bring her back and pay or the higher rate now cuz i signed the stand your theory of the case because there's no there's no devastating but all right your point yes a severe loss of revenue well a loss of revenue yes and so and so what this case really boils down to and correct me if i'm wrong is whether mr men make has the same duties and responsibilities that ms rich regus had or whether he was really hired into a more junior position i think that's exactly correct and to be a little bit so if that's the case do we need an exact overlap of their duties and responsibilities well i don't believe so i believe a jury should be empowered to decide whether they're substantially the same i don't believe that you can evade the law by simply saying we'll hire a replacement and have him you know take out the trash or something you know add one tiny little duty or ups of tract one kind of tiny little duty and thereby say well there are substantially different jobs i think a jury can say look at this and say look you know this is not two jobs they're pretending that these are two different jobs look at the timing you know there was one person in the job up until september of two thousand and fourteen he left then say they created a brand new job that lasted for about seven months and didn't fill the first job but there's corroboration for that  explanation that they were attempting to expand the responsibilities of mr treatises predecessor who who i think is mr drafty as he was doing recruiting jobs recruiting responsibilities only hamley there is the evidence is quite clear i believe well if we if we believe her testimony which i think we should then she didn't accept any she did not have any other jobs she only had his job there's only one job it was doing technical recruiting all these other jobs they say that you know are these added responsibilities she says she never had she says the job description is not accurate she says that the only jobs she was ever doing where the jobs that any recruit are would be doing including her successor so we didn't have two jobs did she also says she never saw the job description while she was working yes she would which in my view provide some evidence that there may be wasn't that the job description because typically you'd think that somebody would see their job description this was not created until at least not produced until this lawsuit who was who was teaching on the job but yes there's no evidence he was doing something different from what she had been doing well she was i don't think there's any evidence whatsoever that he did anything other than what she did i thought that mr drake is also participated in some employment related activities such as orientation for new hires but mr men take never did that that's see as me yes that is the one difference that is a different yes yes yes absolutely and you're saying that's one difference isn't material what i'm saying i guess to be even slightly more precise is i think a jury should be the ones to decide that issue you know if there's one tiny little difference in the jobs are they different jobs i think a jury should be empaneled to decide that issue now if you know if the employer had a unaided this position which is what they say they did in this reorganization a month or six weeks before then your client would have no claim as their right i'm not quite sure i follow could i ask that if if their action had been before her rights to bring this claim to use a term vested if they had acted a bit before she would have had no claim correct i do think that's correct i think that there was a period of time when she was not protected by the family medical leave act she was protected at the time that they let her go however so i guess that's what i would you know that's the the way i look at this case your honor is it's a question of whether there is one job or two jobs primarily and a question of whether or not the jury should decide whether or not there was one job or two jobs it's very difficult to understand where if there's two jobs why it was you know unfilled for seven months and coincidentally that's seven months or so that she was actually in her second job it seems much more plausible to me that there was one job from the beginning of time was a recruiter and that you know when they realized that they could hire somebody for thirty one dollars rather than thirty eight dollars they said she let's keep him and not her are no other questions your honor i think i'll reserve the rest of my time well thank you your honor is and truly the material facts that were before the district court were not in dispute what's really happening is that the appellant is arguing that she views the facts differently and she believes that a jury might agree with her yes to her views of the facts but very importantly though her test she provided some testimony in opposition to summary judgment as to what she believed and that was not supported by the evidence so her view of the case is that she replaced david on dry day and her view was that peter manik was supposed to be covering was only hired to cover for her while she was on leave and that they were doing the same duties but that wasn't the evidence that was was her test and that was her declaration so why is that speculation because one it was an innocent first of all it wasn't admissible evidence there was no e mail the e mail does not exist the e mail is not in the record at all and secondly it would have been hearsay and of violated the best evidence rule because the e mail didn't exist it was just her saying there was an e mail well it wouldn't violate the best evidence rule if the mail if there was a credible explanation offered a trial as to why there was no longer a copy of the mail but there was setting aside hearsay also but there was no explanation of why there was no e mail but also your honor she her her testimony are in her declaration was that when i was being recruited in october of two thousand and fourteen drafty tells me hey they're looking for somebody to replace me because i'm leaving the fact of the matter is is he didn't leave until january all right so fifteen and at the end of the day they are different positions she was a salaried exempt employee she had a different title she had a different job description whether she saw it or not and the expectations for her were different manning was hired as a junior recruiter which was mr position and it was an hourly nonexempt zisha and with very specific recruiter duties and importantly and you know taking miss rodriguez's view of testimony she doesn't know why her position was replaced this is her speculation why doesn't the fact that her testimony that she in essence performed all of the same responsibility responsibilities  this mr mandate except for they are you limited time spent in these orientation sessions for new hires why doesn't that create a sufficient question of fact to have this case go to the jury to two reasons your honor one is that the clear there's no dispute that she had a different title she was paid she was different pay structure and that the job description had these additional duties in addition to so so in one respect her view of what her duties were really shouldn't trump what the company's expectations of her duties were certainly the company expected her to do these additional duties and the fact that in the first six to eight months of her employment that she did it she felt she wasn't doing it or that she hadn't gotten to it yet i don't think changes the fact that she was in this different position and that it was a different position but the testimony looked in the light most favorable to the nonmoving party is that we were all in practice doing the same job why couldn't based on the evidence in the light most favorable to the nonmoving party couldn't the jury issue of well should we put this before the jury and let the jury decide who to believe mr reichardt put in the declaration in connection with summary judgment that basically said she doesn't have the same position she was a recruiter yes and so to some extent she performed the same duties that mr drafty did in the same duties that mr minnick has but in addition to that she was an employment specialist and we hired her for that and she took on employment si responsibilities and i think is that liberation even describe some of the employment side responsibilities that she had like determination the prevailing wages position and sour salary levelling preparation of justification packets new hire orientation etc so so then you've got that one side of it and the business reasons why akamai may may have decided to eliminate a position but then and other hand you've got her declaration saying well of all those employment side responsibilities that mr reichard said i had i didn't really do any of them except for occasionally new hire orientation so does that set up a he said she said situation that then puts this case before the jury so they can decide whether to look at the salary and the employment descriptions or look at the actual duties and responsibilities that the employees engaged in on the ground and i don't think it does your honor for a couple reasons one is first of all she does admit that she did have additional duties and although she limits it to one duty the fact of the matter is she did have a duty that a junior recruiter wouldn't have secondly take mr many eggs testimony so it's not just a he said she said the record shows that he was hired as a permanent employee he was hired as a temporary so in the government contracting world they call extended term or short term he was hired as an extended term employee it's illogical that they would have hired him as a dog in this fight no one told me i was hired to cover for her while she was on leave no one told me i was hired as a i was having counsel why would a jury be entitled to infer from your client's  economic problems as a result of lawrence livermore changing its practices that they simply decided this was an opportunity to save seven or eight dollars an hour and simply call it  restructuring whereas in fact it was just a way to save some money because of the economic travails why couldn't the jury justifiably make that inference from the evidence well because i think as a matter of law wouldn't matter and i think that is a key point when you know this boil down to whether or not they want to keep him cheaper i mean exactly your point your honor well here let's just assume for a moment that's true let's just assume that this is soon for a moment that they both have the same position and that the company it's undisputed that that they had to restructure and they had to reduce a position and they chose him because he was cheaper than her exactly your point that would not violate the f mily as a matter of the law under an interference theory and this was in the briefs also pretext doesn't matter intent doesn't matter the question is is was there a legitimate business reason was the position eliminated so let's just say they had both exactly the same position if they chose to eliminate her position versus somebody else's that doesn't create a violation of the f m l a under the interference theory intent and pretext and motive or are irrelevant there is no dispute in this case that a position that her position was eliminated based on her interference theory claim she's not entitled to restoration if her position was eliminated so sure they chose to keep him and his position because he was cheaper and they had employees that can do her employment duties whether she was doing them or not they knew ok well the h r manager deborah morell can do it the employment manager jennifer miller can do it and our new junior recruiter  can do the recruiting duties so we don't need her anymore and it's going to save us money that as a matter of law doesn't violate that from the law and so no jury that should not be sent to the jury well again counsel you know very well of experience she says her roles they were the same she understood that he was taking her place bigger asli dispute that but as my colleague just pointed out and you know under summary judgment we we we credit the nonmoving party and when you do that in this case don't we get to the situation where you might win hands down but doesn't this have to go to the jury to decide those questions your honor i don't believe so because even to controvert the material facts there has to be admissible evidence beyond her mere speculation and you know for example you are in the shank over says harris case which was before the fourth circuit in that case the it which was an interference claim under the after my lay employer eliminated the position and what plaintiff argued was essentially the same thing that a jury could find that the elimination lacked legitimacy and the court the said but the position was eliminated and that's just again that's undisputed in this case that the position was eliminated and for your perspective you're saying that the just get rid of a job and now somebody under that family hasn't protections the answer to that is no because one certainly and again it's undisputed that there was a need to reduce the staffing because of what happened with the lab but a  person who takes up mentally leave has other protections because if it was truly pretextual and they really wanted to get rid of her because she took after well a leave or because she was pregnant take maternity leave then she could have a discrimination claim then she can show pr show intent and of course she admitted that that wasn't here that they were looking forward to her coming to return they were it was a genuine and very importantly here to also is keep in mind that in as your honor pointed out at that her f m l a leave she was not eligible on and talk tobar seventh twenty fifteen they made this decision this all happened in june july august there's documentations there's charts there's graphs there's no mo showing why we need to reduce this position they made to the sit in before she's eligible for from a lay leave and you know maybe no good deed goes unpunished what they said was well we're not going to screw her so even though we're eliminating this position and we've made it go ahead and take your f malay leave and then will and then so you don't lose your  benefits but at the time they made the decision she was not eligible for many leave and i don't think and i think had she remained employed had she come back from her leave they would have made the same decision to eliminate a position because of what happened at the last it was an intervening event they were aware of it at the time and her job most would have been eliminated either way and again i do think it's important the fact that peter manning was not hired i mean she says she believes he was hired to replace or but that's not what the evidence in the record was the evidence in the record was he was hired as a permanent employee to fill this position very well that's not unreasonable that i mean a recruiter is coming in and she's told to train him and again there's plenty of that says the fact that one that your position gets handled by other people doesn't mean that the position was eliminated i mean the fact that they're training each other he's helping or we're duties other people helping we're duties doesn't mean that ultimately they didn't decide to eliminate that position so you're saying that the decision to eliminate her position was made in september and she was converted to leave in october and then told october twenty third time and correct correct they granted her leave octo effective october seventh they actually issued her the fate of the paperwork september twenty five so on september twenty fifth they center the paperwork saying you've requested leave we're going to grant it effective october seventh went through it once are eligible she was supposed to return to work november first they informed her on october twenty third but the evidence in the record shows that this process the lab informed the general manager on june in june of twenty fifteen they started doing the analysis of the conversions july august and all the memos and all that were prepared september september i'm not sure i have a lot to add your honor but all of you know how to and all rule is if you don't have anything to add don't add it that's that's that's what i was taught and so i'll just leave  that he seems to indicate that you know she's speculating and i think there's a difference between speculating and drawing reasonable inferences from timing for example and i don't think it's speculation when she's actually told directly by or supervisor that she's been you know replace here we're hiring a replacement for i don't believe that speculation was mr mitnik hired on as a permanent employee pardon me was mr medlock hired on as a permanent employee i believe so and your opposing counsel suggests that there are no such material disputes and that to the degree there are any the law makes it clear that the facts are irrelevant would you tell us please what you believe are the materially contradicted elements of the testimony of both parties that were before the district judge that you think would lead to a conclusion your client's favor i'd be happy to your honor i believe the material fact that issue the general material fact issue is whether or not she was replaced or whether her job was eliminated i believe it's disputed whether or not it was replaced she has no direct evidence again from her supervisor that they were hiring replacement for i think there is evidence both from the fact coincidence in time from the time they hire him and from the fact that their theory that there's two different cases two different jobs entirely is implausible based upon the fact that there was no overlap there is no there was never two jobs except for three weeks of time when this when mr m for correcting me i appreciate it every single job duty that they say she performed that was in addition to suid recruiters duty she says she did not do she would never that you think carry the day for your client they say that she one of her duties was to supervise and direct staff she says that's not true she never did that they say that whatever duties was what they call position leveling she says she never did that they say that one of their positions one of her additional duties was what's called salary leveling she says she did not do that they say another duty was performed desk got it for reclassification she says she never did that she says another one is position and position classification she says she didn't do that they say another one is determination of prevailing wages she says she did do that but also mr manic did that because that's a basic recruiter function they say that you know another duty she did was justification packets she says yes i did do that and so did mr manic that was a basic function of the job all these jobs all these are disputes whether or not she did them or whether or not both she and mr manic did them and those are the fire those are the fundamental facts i believe which are in the spewed which have to be resolved to see whether or not there is essentially the same job or not and that's the bottom line is the point you made is unless you know the answer to those questions you don't know whether mr manic replaced her or had a different job exactly exactly right