it's difficult to quantify what the violation is it is a per se violation there is a right to reinstatement in the sea for up and whether or not is actually interference i don't i think it is both interference and retaliation or it is in and of itself its own violation of the c for a the statute is quite clear that you cannot discharge an employee while they're on sea for leave unless you offer them the same or equivalent position and that unless the position term yes that is correct that is an affirmative defense to the c for a violation but they have to show that one they would have discharged the plaintiff anyway and two that the use of leave played no role in the terminations decision and here wells fargo search that there was this generalized slowdown in the mortgage business except they hired another h m c and it's not true that the agency and agency junior which was your c is job are different positions but everything that an agency junior does an agency also does but there is some extra work that the agency also does what is the person on it h h m c h m c i don't know mortgage can see one question i had which wasn't clear to me is that apparently obligation to reinstate her unless they eliminate the job so therefore the question is you have to be attacking lou shit in the sea of the elimination of the job by saying that it was they have to prove that it was eliminated for legitimate raised reasons rather than the plaintiff proving that it was not but i think with regard to that there was some evidence that i think there were  i don't know the exact number employees but the region includes the entire west coast the united states nevada alwis and therefore very small number in a very big yes we're talking you know a jobs ad and interesting you know the list of employees that they laid off in this seven to eight employees only one other of those employees appears to be mortgage related their record on who is laid off there is a document in the record i do not have the cite in front of me it's a document that wells fargo provided all right with a with a list of the names of the employees and the job title and where they worked to see friends of the reduction in force  i am not aware if it does i think that for purposes of this defense i cited to the case see this california civil jury instruction which sets out the standard for by which you can do this legitimate otherwise it's otherwise legitimate terminations and it's a two step standard that would have discharged the plaintiff anyway and that the way you played no role in the terminations this didn't appear to be any kind of a reduction in force but the discussion with what with the with management she no longer the she didn't think that mr c e o was benefiting her she was coming to the end of the term and that she didn't want to she didn't want to go forward with her well interest in the term had already passed months ago put in all the i mean that what it did you depose any any of the wells fargo folks as far as i know no depositions were taken ok was there any deposition taken i do not know i do not because of art but at this point we think that all the evidence depose anybody at wells fargo as far as ole miss market was not that was not the post the only evidence we have that was to what ms markell to testify to is her declaration yes and she said that it was her understanding that no one else wanted an assistant yes however there are a list of other jobs that mrs garcia was qualified for that they presented to her when they laid her off that they said she needed to apply for my reading of the c for is that they should have offered her one of those jobs rather than making her apply for one of those jobs platinum no no she did not but and i think it's a reasonable thing for someone who believes that they've been discriminated against because they're pregnant and fired because they're pregnant not to want to comply ok so who does she think discriminated against her she thinks it's the in for purposes of the promotional decision she believes it's the so the woman who made the promotional decision her supervisor and i am i apologize blanking on the name because of the approaching lunch hour the poor her supervisor made the comment well we can't have someone who was pregnant and it's a sign i believe so yes ok but that we also have it we also have the only evidence in the record is that mrs sun was not involved in the decision to terminate her and it was a hearsay it was a here's a question anyway so we're not sure but even crediting the statement the statement from those who made the decision was that mrs on had no had no  from the counsel said they didn't know she had said this or thought this that is their testimony yes i believe that is her testimony yes and i take you back to this issue you were saying that you interpreted the law required  wells fargo to offer miscarry see a replacement jobs instead of saying she could apply is that in your briefing i believe it is yes says that you must be must be offered the same or substantially similar employment at the end of at the end of your protected leave thank you and i would like to reserve a couple of minutes so if i has her or she has a child and she asked for additional c for leave for bonding time which to procreate out of the sea for us and then i believe it's two weeks later employees from wells fargo come to her home on under the pretext of  yes but the agency does all the work that an agency jr would do plus they have additional which they don't have to share they don't have to share the their share twenty five percent of their no no they don't but if their was going to was no longer going to be there as an agency she had already been promoted to branch i thought they didn't have an agency that is that correct i don't know how many agencies they had at that point they should have been replacing miss marco with the other one who decided that miss they needed her desk in fact they needed miss garcia's day so that the implication there to me is that all the other desk or felt or if not that means they went and confiscated her laptop and her keys not because they what was going on in the region and hiring all we have is her own declaration which as we pointed out is that no well we have a deposition true but she is relying entirely for her appeal on her declaration which is excerpts of we objected to various portions of it at excerpts of the record fifty six to sixty because it's full of double hearsay statements made with no foundation whatsoever give an example the key one of her key pieces of evidence supposedly of talk about the suffering issue the this is my troubles me my understanding is that the explanation and the and in what has been that this job salesperson job it's a person whose job it is to go find leads drum up mortgage business they're paid on commission just answer my question for christmas at the explanation given what the new ones to it is she was an agency junior supporting an agency understand the that person who she was supporting they no longer had the volume to support and agency junior at the same time the region was going through some of the slowdown and she was in fact there were seven other people whose jobs  it's not a riff in the sense of we're getting rid of forty inches here junior positions at the same time the issue was the need for her job in the first place was supporting h m c and for an agency to take on it to have enough volume that makes sense and she has an explanation in her tank liberation which is that these numbers down are not what they appear to be because i guess met with by that deborah primarily was job as managing but as a manager you have some production but you're not a dedicated agency your job is primarily to manage a breath and therefore i think the person who so who was the h m c o didn't want to anymore no she was deborah well first of all marco doesn't hire i mean she is markos but then she signed an agreement actually have to agree between them on the seventy five twenty five split correct that basically at the end of the year of their agreement if marco felt that it was no longer she n had enough business to justify giving twenty five percent to someone who's delegating loan processing duties to that she would not continue the relationship but in the whole bright future tense not up to now it's not up to her in the sense that she's not wells fargo qualcomm the standard is understood for you don't get any more rights under sypher as you would as if you were working there and you had an active job we can't punish you for having taken a leave so for example if we said we're going to get rid of the least productive person here and oh you were gone for six months you can produce anything you're gone that's that's not good wells fargo and demonstrate that there wasn't a nation  sufficient they're willing to take a pay cut to basically give twenty five percent of the business to an assistant that it makes sense to that person that they want to have this that it's economically in both people's interest the evidence from devore marco's decoration is she asked if there is an in the branch who wanted to have an agency junior none of them did the position was eliminated it wasn't as if another h m c junior was hired a week later and was doing the duty the entire h m c junior position was eliminated and branch there was no need for the job at the branch any more now is the or some other job that you could you look around and find some other job someone wells fargo is the one this is they hire a new h m c at that point at some point in this process does regularly you a very specific question which you've given a very general answer to the as i understand it the new agency person who took the place of demarco or talk or death or whatever is not named in the declaration is that correct she's not named by don't we don't know whether deborah marco specifically spoke with to the undisputed record in terms of the evidence is that deborah marco when she didn't have any need for plaintiff anymore she asked other everyone in the office i think this is the problem we this is what i don't stuff that's what she says my recollection for the record now i will know my recollection for the record is that they had to get her computer for some reason having update the software or do something with a computer plaintiff's version of events is that when they came to my house they said nice baby and they took my computer the reason i say doesn't matter villalobos or something who came to see her guzman asked my laptop because i was going to be receiving a new one i gave her my laptop without thinking anything i gave her bot this the undisputed evidence is that the job her job the need for jobs eliminated and that at the end the process through the wells fargo normal process she was laid off she was offered a ninety day job search leave to look for other jobs in the company and deborah marco it ended and they were looking for other opportunities for her and the branch but there were none and that's why they ultimately ended the position but no there's no evidence that any that's not true though is there if there was some evidence like i said for example that somebody else was hired into her role this notion that the agency and efficiency junior position on the same thing is simply not true not supported by any evidence in the record but the evidence that's undisputed is she's out that positions eliminated and they notify her they offer her an opportunity look for another job declaration and you know up here there's not one statement in either one of those declarations that has been contradicted plaintiff certainly doesn't contradict them except where she says things like i believe deborah marco's volume was the same which would have no foundation whatsoever to be able to address that at most it would be a hearsay statement of something she learned from marco and marco doesn't corroborate that and she never took mark his deposition so the evidence is there as the positions eliminate it the evidence that's there is that nobody is hired to fill it the evidence is that she's offered alternative opportunity to look for other work within wells fargo pressure wasn't offered a job she wasn't offered a job in the sense of choosing guaranteed when your job is eliminated you're not guaranteed like for example for a disabled employee who can no longer do position you get some kind of special rights to reinstatement under the under tomlinson versus qualcomm if your job is eliminated completely and it doesn't have to prove that it was part of a large reduction in force the standard is if your job is eliminated and there's no evidence or job would have not been a limited had you not taken leave if that's eliminated you want to tell them anything but wells fargo as a matter of its practice when it lays off people it has a ninety day job search leverage gives them assisted job source leave to look for another job in the company and plaintiff did not participate in that at all she just stopped looking so you know if the question was if this was some kind of mysterious  grounds around why her job as a limited that be one thing but there is no there's no evidence raised at all that her job is a limited for some reason other than that it's a job there's no longer a need for that will and if plaintiff doesn't produce any evidence to support her point and who can make an inference that because someone took her computer it must be showing that they didn't really want to get rid of her position i think she should instead would be some evidence that the role continued in some way like if she had gone and taken discovery and found that there was you know her duties  thanks briefly if i may address the claim that if the position is eliminated completely then they have no responsibility to the employee there is an exception to that if the job duties are subsumed by and someone else at the branch or within the company then that exception to that c for a re employment guarantee doesn't apply so here we have a new agency who plaintiff alleges and i believe in her declaration that took her and yes and then some so it's not it's not like the but but the agency gets to decide whether she wants an h m c jr you just heard that wells fargo is actually the employer and they decide who is actually employed at the branch so if they're bringing in someone new to handle this loan volume it does not it there is it being a some c junior doesn't mean that you're qualified to be an h m c a no but bringing in a new agency indicates that there is actually work to do i think but also i suppose that if you have one h m c in branch then she would be generating she could generate more work and have work for the junior but if you have to with the branch then they're going to then the other person may get her her maybe generate some of the work and therefore they won't be need for a junior so how many scenes there are may have to do with whether there's a need for a junior or not and whether the whether the person would be willing now though is whether the age is there's only one a firm see there she may get the bulk she may get the loan business and therefore be linked to share the money  don't know if that's right or yeah i think so but i think that there is a reasonable jury could conclude could infer by the fact that they brought in this him see is that this h m c subsumed the work of the agency jr who was because somebody else was competing with her yes but the c was no longer an agency and she was a branch manager and the record is unclear whether or not she was replaced and an additional agency was brought on or the new person brought because it falls close on the heels of her requesting more leave now when she requests the leave i believe was two weeks before that it was right after her child was born it was two weeks before they came and took her keys and laptop and how long was she going to be out i believe the balance of the sea for time which would be well weeks ok so they came sort of at the beginning of that of this three month period yeah so you're going to getting a new laptop anyway don't worry about it well they don't think he's later than a cake clapton they took it they took a key for they took a fog with a laptop with something that she needed in order to be able to access the keys they came in got later in september yes yes they came and they grabbed the fog which i believe she needs to access the network and maybe her office i know was never quite clear about what the father did but it was something important to exercise it was something important for her to do her job and i with that