pretext was insufficient to sustain my client's burden under the rd prong of the mcdonnell douglas test and the nd area is where in the court held that your remarks did not have an obligation to transfer my client as an accommodation for her disability on the pretext issue there's an awful lot of pretext evidence in this case we want to be clear in this case you're only making california law claims right correct so it seems to me under the california cases proximity of the of knowledge of the protected status and then the bad action is not enough to establish pretext you agree i agree so put that aside because it just is exactly where you're headed tell me what other evidence or pretext is there is here where the st is the pretense of a job you seem to be treating this as a reduction in force case it doesn't seem to be that it's a reorganization case and so the fact that th position was retained although to different at a very different place it doesn't seemed to help your case all that much if this if this is truly a reorganization case or your honor i agree with you one hundred percent of the reorganization being terminated because their job is being eliminated evidence that she's been replaced by a new hire or any other evidence tending to show that the job continued as a single distinct position cons before your client gave any information to the employer about any condition correct completely disagree with that the the my client and two other circumstances would have to be clarified before it could be determined how they see here's what i'm looking at the record is what i'm having trouble with that they identified placement issues but i thought the reorganization plan which was put together by asco bar branch in early two thousand and sixteen identify koopman and lot of morris candidates for termination well i'm mistaken there's there's no documentary evidence that anybody there of any thyroid problems they were already looking at the issue of whether or not to maintain her and her position believe that's correct that's that's fair isn't it i don't think that's  the only extent i think that's fair is it that they were prior to learning of my client's disability because of an impression that she had previously indicated that she was i'm willing to reload now this is before they learned of the disability issue does it nation i think is most recent the writ most reasonable interpretation of why she and the two other employees one who wasn't terminated was designated it was that her supervisor had had a conversation with her a year and a half before the services she was offering to assist the fabro unit the decision was made that that support should no longer be provided remotely it should be provided on the scene i guess i guess in pennsylvania so the job was eliminated the extent it was going to be performed in california but it was understood that it was going to be now provided in in pennsylvania where is there a pretense of  person for everybody they feel here that they they selected that they don't know my question is how quickly after your client was terminated was or and your view replacement hired replacement was hired my client was what under what law do they have an obligation when somebody said i don't want to relocate to say to them are you sure what i think i don't think comes under particular law i think it goes to the issue of  job the job wasn't where she was angry ok and she had said i won't relocate that it said it previously i they required to go back to her and say are you sure maybe you have look at it this way let's say that is never been any discussion at all of my client relocating and when they were planning this reorganization misprints her supervisor said you know i just have a hunch that she probably would doesn't want to relocate because i know she has family  disability discrimination aspect of this case if i am i required to say to somebody even if i dad said anything to me i'm moving the job to georgia you have to you know i have to offer to you before i offer  to anybody in georgia no there's no required legal requirement but where it's relevant is if you fail to ask the person if they want to transfer under circumstances that suggest that in the normal course of events you would say that's evidence a pretext because it tends to undermine the stated reason for the term and what's the evidence in the normal course of events that if i had an employee in california and one of the job instead to be done in georgia th every organization done for business purposes and they were day they would changing but job to somewhere someplace else they wouldn't have to make the economy if they took if she was term the job was terminated they wouldn't have to accommodate her credit it wasn't terminated and it's  to consider that is a reasonable accommodation placing my client into the vacant position and since that was really the only available combination they were required to do that unless they can show onto hardship which is no evidence miss given an opportunity to transfer that's a point i raised in my brief that's on their own because there's no evidence of that that was presented there's no evidence in the record that she was ever asked whether she would be willing to relocate of course in this car that's something that could have strengthen your case considerably right oh or we can do it but it's important fact to know is it not well i think it's right i think it could be a relevant fact i'm not sure if it's  reasons and the equal number in this case one more point was like oh for just for discriminatory reasons i don't think that an employer could immunize himself from a claim of discrimination that's under the there's been an adequate showing of pretext and the district court's decision i think was correct in concluding that the plaintiffs in this case didn't make a showing of specific and substantial evidence of moved you know and therefore the job you have no longer exists correct but somebody was hired within thirty days to do a job that seems very much like the job that she did albeit in a different place this is where the why so why isn't that enough evidence you know you may have taken notice that a number of times during opposing counsel's argument he used the expression effectively replaced and opposing counsel would have the court believe that the hiring of mr howard in norcross constituted miss latimer's replacement which is factually completely untrue we ended up doing all of her job with this though is that the reorganization contemplated that the job in california would be eliminated and that the duties that were being performed for the for brough business unit would be performed where the fuck about for brough business unit what wasn't that  i mean it to me the genesis of this thing was that she was working from home and at one point you're a max asked her to go into the local max offices to work there as support where their people are doing their work there were two separate issues here your honor there was the issue of miss latimer working from home and that the parties do have a dispute as to whether she had permission to be working look at the performance evaluations well i don't mean to suggest that she was a poor performer but she was poor in some respects and one of the respects in which she was a poor performer she was identified by the folks she was servicing in the  bra business unit as not providing them with the support that they wanted and they occasionally winched to outside sources to receive the support that miss latimer it was supposed to be providing being some peculiar nomenclature but what i understand it to mean based on the testimony of mr branch and mrs escobar in their depositions is that it would be difficult to move the person elsewhere in the organization because of the issues that they are having so the way i read the way i read it was in light of her previous they're talking about real organization they're talking about moving jobs around and she's already told them she doesn't want to move so i thought that's what placement problem issue is not strictly speaking referring to a physical location it's referring to where does this person fit within the organization where can we place this person within the organization post reorganization and the people that were identified as placement issues on that that chart were the forks that were perceived as being more difficult to move within the organization invited reasons that they consider moving to pennsylvania to business unit was right as guards he was a human resources manager at the for brow business unit she did already somebody in that position she was not servicing the ferocity of these unit at the time but there was no need to move mis he was there and could be performing those functions so the other issue doesn't have a because i'm confused i thought the so what was going on in georgia we got  things i will tell you why the reorganization eliminates miss latimer's job at the time of the reorganization there is no job in georgia that is open that job springs into existence as a function of the reorganization being executed the position that becomes open in georgia was filled by someone to serve a different business unit out of  norcross which is the company's headquarters ok the obligation shifting gears to the accommodation issue we have an obligation to move or into a vacant position which there was not as a function of the if you waited to create the vacant position until until you fire the position that became vacant was and i realize that this is subject to some criticism but the position that became vacant was not servicing the brow business unit miss latimer's position did not become vacant the individual who was servicing the brow business unit was misc artsy who was already employed and when miss latimer was like oh mrs darche assumed all of those duties so let me let me give you a hypothetical so you don't have to tell me these are not the facts of this case growth assume that she's servicing a business unit misled him or in california she has a disability you and the service of the business unit in california which you have a vacant position serving a similar business unit in north carolina under the act are you required to offer that job yes so why in this case if we as you know why in this case if this so that it had this had this position been open on the day that she was fired would you have the obligation or for it to her that might be a different circumstance i value i know that's why could have been filled by ms latham war but let's say that it could have and let's say that this position did exist on the day that she was terminated which again it did not yes if that's the only evidence here in the face of the fact that another non disabled individual was terminated for exactly the same reasons as miss latimer war when that's taken into account that one fact that we've now talked about fails to meet the bar for specific and substantial evidence there is another another fact here that i think that we should talk about because there's some significant attention devoted to the the the reason the price of the text the reason the reason that it's a stray remark is that the the e mail pertains to the granting of leave it has nothing to on leave at this point this is this is a notion that the leave is going to need to be extended and so the issue is calling into question the the credibility of this request for leave again  said specifically in the e mail do we have a doctor of the company uses that we can consult with she she does not have any enemas in relation to someone who is disabled nor does she have any difficulty with someone they couldn't have fired her because they thought she was disabled because they didn't think she was disabled at the they did not think she was that i just said it doesn't it doesn't it's it doesn't demonstrate any any their reason for firing her except with doesn't suggest that they thought she was a minor no i think that simply raising the question one time about whether someone's need for a leave is legitimate before somebody has been presented with  requisite it was all a very compressed timeframe this observation is made not long before she finds out on the day that her family medical leave act is that she's also lost her job and this is all happening very quickly this observation is is made a month before the decision to terminate is made and the decision to terminate wasn't executed until the leave that had been granted it concluded nobody was trying to interfere with miss latimer's leave and that's the only thing that this e mail goes is questioning the legitimacy of believe once it became clear that it was legitimate he said miss a lot of work take all of the family medical leave that you're entitled to but that's the only thing that this this email demonstrates an important fact while miss escobar was one of the decision makers in  terms of the termination this branch was another decision maker and i suppose it would be possible that you could attribute discriminatory animus to one and not to the other but the reality is that miss latimer and miss branch continued to text one another  gave her a limited extension in their rationale for the limited extension was that giving her an extension to june thirty would have been a reasonable accommodation because they already fired her and the her the same day they gave real limited extension never an f and now i i'm afraid i'm i'm not following very they made the determination decision on a month after the request for leave was presented and the actual terminations occurred to a month after the terminations decision was made and the termination occurred when the f m alay expired you are correct that they did not extend the leave beyond the period a and it is or can be a reasonable accommodation in california to provide somebody with a leave beyond the period provided for under six for some law if it will enable the person to return to work there was no work for her to return to at that point in time because the job had been eliminated in california the job was now in pennsylvania when when was the decision to terminate made well i don't know what it was conveyed consequences finalization have as opposed to initial decision well plaintiffs counsel would argue that if the decision is made after the company becomes aware of the disability then they can't  argue that the disability didn't factor into their calculus in deciding to terminate her and they would say you can use may have thought about it in january but you didn't finalize it until after you knew about the disability i understand that argument i disagree with it  trying to look through the record to see whether there's any analysis of ms ryder more between january and the eventual time about her job performance that might you know might have suggested that they had finally made that decision it's one thing to say look we made a decision that but we're not going to tell people until we get a reorganization stuff done i don't think to say this is our tentative decision then but we'll keep thinking about it this was something that  the court talked about the district court examined it would be one thing if there had been a dramatic change in her performance evaluation that was received in two thousand and fifteen versus two thousand and sixteen but there was not  the performance evaluations that she received were functionally equivalent in that they both had positive things to say about her and negative things to say well but you are you suggesting that if she performed well during the next six months her is a tentative decision but we'll look at her situation personally and try to figure it out again later or whether this is a pretty firm decision but we're not going to we're not going to announce these and so we put our whole plan together  i think that the evidence reflects the latter rather than the former if you look at the testimony of branch and escobar as well as the the sheet that they perform prepared this was their design for the reorganization now keep in mind the design has to be confirmed with a number of other people within the company the human resources department couldn't make these decisions unilaterally but this was what was plea right counsel you're over your time i just they would have had to of advertise for the position well before june th to go through the hiring process so you actually started between after june th and th on the issue of the what date the termination decision was made