that right is you always see what was this like income level and hughes before he responded to the you know the treaties or corrosion of the car record there is evidence that she was the executive vice president and chief operating officer of hughes communications and satellite in los angeles and that was the position below president question the pelleas make much of the fact that he was paid out on the terms of this contract to the tune of approximately three million dollars he's paid twenty thousand dollars a month for two years and he got a quarter of a million dollars for for two and a half million dollars for the stock options right and yes i believe that's correct your honor and the reason that he was had that significant compensation package as part of the contract was because he was giving up half million dollars there well i don't want to misrepresent the kind you know what's in it if it's part of the record it's not in the record i don't know i don't know and i apologize it's not something that we are focusing on either at has spelled out he doesn't get any more more than that you know because if he wanted more than that there obviously way someone making who has a three million dollars package can negotiate to get a five million dollar pack whatever then it's just a question of our bargaining so i wouldn't hold it against him that he got three million dollars that's his claim if it's a valid claim but at least on the on the contract aspect of the claim it seems to me he's got sick you know half a year or have paid out of your contract and i hadn't really you know performed for the whole period so at least from my perspective i'm just one judge but i have very little interest and in the defendants and that is not what needs to be proven proven under washington law the least case is that thompson versus st regis paper company case i think it's the first supreme court case from washington to address raffle terminations in violation of public policy and in that case the employee allegedly has been terminated because he had simply tried to bring their accounting practices into compliance with the  foreign corrupt practices act there was no allegation or evidence that any violation of the law actually occurred by the employer or any of the complete and the court in that case held that  those facts alone violate the public policy of the state to punish someone who was simply trying to in the accounting practices of the company into line with the law the court disregarded the court below disregarded that opinion and instead i believe miss read the ellis decision which was the next supreme court case out of washington on one for terminations the ellis case did not overturn or overruled the thompson decision in any way what the ellis case set fiduciary duty that marsh are already raised with them in march was this was information he had received from employees of company employees came to him saying that they had learned that in the car and gates were planning on transferring their shares they basically making their share as intelligent as a publicly traded bull by transferring them to a company with they would stocks that have value while leaving behind a shareholder employees intelligence act with their shares which could not be published publicly traded and that was the issue that had a lot of the employees up in arms and view very concerned and that would be a breach of a fiduciary duty because it would put the director of the officers on financial interest in getting publicly tradeable stock above that of the other shareholders and i think it be that simple i don't think that would be perceptive i mean as i understand l corporate transactions are complex what was being explained to him was that by the employees and when when mr sharon already met with the kamaka did not deny it he just became furious and i said i keep daggett out of mr jack at the former l and mr gates were planning on transfer taking their shares out of teledesic placing them in a new company which would be publicly tradeable leaving behind the employees shareholders c at least i don't see what why that would be a breach of the do share duty and they start to say there might be facts that would make it so but just hearing it described that way i don't know if i don't quite get it how like hearing that it would be a working former on the belief that they are at their shares would someday be publicly traded of all and that the directors would not take out twenty or thirty percent of the shares make them heavily tradeable and leave them behind reorganizing the company in some way but another way of looking at it and this is what i think both alison thompson stress is the public policy is do you want to discourage employees from coming forward when they see these potential violations of the law and so do we want to punish the president of a corporation for going to the officer director and saying the employees are upset here that you're going to make this deal that's going to exclude them do we want it contravenes the policy of the state if the faster proven that that was the motivation to permit a director or an officer to punish president for having raised that i would like to go ahead to the unlawful discrimination claim because there are there is a significant omission in the district court's opinion that i think does need to be addressed the  goes off and starts talking about what was the nature of the direct evidence or the remarks that were offered so there's no discussion at all of evidence of pretexts the court basically took it as true that there were significant problems with mr sh performance but i would like the court to i just want bring the court's attention to the parts of the record where we submitted evidence a pretext first and perhaps most significantly five months after mr sharry was terminated he was given an unconditional offer to return as a president saying please return to your position as soon as possible and resume your responsibilities for overseeing the company's day to day operations that was a letter sent in by the c e o and the record at six thirty one certainly strong ever since that they did not think that he was incompetent to manage their business trend growth then there's a memo from him which appears at six thirty which was written on march thirty it's listed in our brief i just want to focus the court on it that evidence of pretext had to have been considered by the district court and the court instead weighed the evidence and made credibility as the two things that rea counsels the district court should not do in discarding that evidence the district court also could have on the basis of that evidence of pretext alone found that there was enough evidence of discrimination to avoid how does that support it's an age discrimination terminations you know i really don't get that i don't think that's it that's the thrust of discrimination here i think it's national origin discrimination  do think people differently at hughes the testimony of mr sharry page forty six the record is that mr macaws and you people do things differently than we do in this country and also on june third you know you can't be asked what was it about this shari that made it that he couldn't be a c e o of a company that had one hundred employees when he had been the scene chief operating officer of huge in charge of marketing finance and legal for nine thousand employees in the remarks by mccaw suggests that he felt that there was something about mr sharry ari believe his national origin that prevented him from leading the company in that kind of visible role and that well yes and no and this goes back to the point you were raising why would they have hired him to fire him i mean that goes as a whole issue of the same actor defense that the district court monica try to get him to come in as the technical person to leave the technical team when he rejected that they had to go back down again and make promises to them to him but it did not intend to perform to try to get him because they desperately needed his racial discrimination the you people sentence i think is some evidence but i'm not saying that you can't you're not going to be c e o as having much weight here well i think that you people from other countries is strong is more is direct evidence of discrimination i don't think it's a straight remark i think it's direct evidence from the decision maker around the time of the decision that at the time they were discussing the future of the company where he ma  the next conversation was just between him and the car he places it in washington d c i'm not sure it's clear in the record when that conversation occurred it's my reading and i think it's a later conversation when he in the car together talking about the vision as a company but i don't know what was the the car has removed him from the motorola negotiations which bill owens the c e o who's the former you know he's the second highest person in the united states military during i believe the clinton administration i don't like yours approach to something cut it off i mean that's the general mcchrystal all the time but the question is whether it was for some racial reason as opposed to some  pre checked alone can be sufficient evidence of discrimination even without direct evidence and they their their claim is that he was a monster tyrannical monster  that and we have established that that was pretextual by evidence that they asked him to come back as president soon afterwards and that many of the key people admitted in their depositions that they had had no problems with them and had not seen those things so i think what once that type of evidence is submitted it really should be for the trier of fact to determine who's credible here is it mr carr mr widely who say he was a tyrant or is it mr then signed the contract with teledesic the contract it was in the form of a letter agreement the parties contemplated a full written agreement later on which for some reason was never executed but all of the terms of that contract w  and i do want to clarify what happened in july he was not terminated as an employee that's clear he was removed from the position of president mr sharry i returned to california at that point teledesic could say did he two arguments that are stressed the most in oral argument and i realize we have briefing and other things but it seems that the council stress primarily the germination in violation of public policy first of all he was not terminated as an employee the matter that he was objecting to was that simply a discussion of a possible corporate reorganization at that point mr mccall and eagle river had interest in car company the record does not have mr because interest in eagle river eagle river is an investment company for a variety of them for a number of macor people it had a twenty percent ownership interest in telling us that but there w simply discussions about potential corporate reorganizations none of them ever took place many people objected to them they were all speculative in washington the terminations violation of public policy requires one a violation of a clear mandate of public policy and i would point to the legislature has never created a private cause of action for whistle blowing hard look employees who complain about wrong doing are protected but the washington legislature has never extended whistleblowing tragedy to the private sector and we would urge this court not to do so either but there requires there must be a clear evidence that the person is complaining about expressed many reservations to mr vavasor shari's work he thought that this proposed reorganization as he understood it to be which never went into effect might prejudice people actually that's like he said that there's no evidence that when he said that which was apparently in early part because the plan was pulled off the table in late march there's no connection between his saying that and his removal as president in july if i may your honor i want to be more  there was a discussion in a hotel in washington d c early in the spring there was a discussion about the teledesic strategic planning or long range vision and what mr sherry said was  he told me that quote one has to be more patient period we can to do with this way period and maybe you people do it some other ways you people but we don't  things differently mr sharry came in in response to the summary judgment motion and had a refreshed recollection of what he claimed mr mcauliffe said in that hotel room where they were clearly discussing long was because i was pressing him in the deposition he first said mr shit mr mccarthy presumably made this remark that people in this country and i asked him tell him it was to tell me exactly what he said and then he went on and gave what i think is his best recollection on the patient period we can't do it this way period and maybe you people do with some other ways you can people but we don't do it here period quote why would anybody think packing value that's what different he came from a very large organization that was hierarchical teledesic was a startup company with approximately one hundred people no offices flat organizational structure and people felt that mr sharry was locked into a way of dealing with judgment were granted on a very eve of trial after all discovery have been completed the parties are testifying all witnesses to testify you know the standard that the district court was operating under was the standards set by the supreme court in resources sanderson and that is the standard that the french who are now with operating under the the problems that mr sharga ari was having that he was abusive to some people that some people were threatening to quit were repor mr mccaw and were a basis for concern there was a straw that broke the camel's back at the end of june teledesic was negotiating a multi billion dollar contract with motorola it was a great the company contract that would have involve motorola contract was signed on july first mr sherry what are you went back to teledesic called a meeting of senior staff and said if you think we had problems before we have problems now he certainly do now with the timing that compared to the hotel room you people comment that it's impossible to tell from the record when that earlier comment was he was sometime earlier i sometime during the spring we don't have a date on it it was that least a few months before that was at least some time before so in the face and then mr whitely met with mr sharry they discussed finding another position for him mr sharry stormed out there were questions about whether he had abandoned the job or not he was removed this president but the point is he was not terminated as an employee one after the others called  people comment what what were the responsibilities that mr cherry retained subsequent to that discussion he was still the president of the company by his own testimony he met with  hired to do and that's what he did throughout that time when the problems surfaced with disputes with mr owens with abusive behavior in the final straw the motorola contract the decision was made to remove him as president in that context the hotel comment by mr mccall which has to be ambiguous at best must be considered the type of stray remark that this court has said in other cases is not sufficient to warrant an overturning of a judgment as a matter of law the evidence that and that in this circuit under national versus perhaps telling and and other those kinds of stray remarks even remark that we don't like people with gray hair or the too many you know people of that nature around even remark it's less ambiguous is not given sufficient w relation to the term to the end was really terminations as you say it is sort of the change of responsibility physically like shelving right where he was he was removed as president while they tried to explore other positions he would remain on the payroll he was invited in december after we've been paying nearly twenty thousand a month we still have the position open we have not fill the position of president are you going to come back or not ultimately an independent contractor agreement was negotiated with him your honor as we have for the first course canadian women in the record by the way you think it was the record tell us like what the compensation was and the terms of the independent contractor agreement it is i have the signed version here in the s c ares the independent contractor agreement was attached to tell it that's next answer it is in the record below it didn't make it into the s c r i have them these are the two key documents and the periodic we think it's our position that with regard to the public policy claim but there was no evidence of a violation of something that would be considered mandate of public policy so any connection between mr shari's simple remark in the early spring and the decision to remove mr president with regard to the discrimination claims where the same people hired him as president with an extremely lucrative contract he was paid three million dollars for less than six months of work and they then made a decision based on him full evidence to remove him from that he did i think clear of some of the factual issues but some of them i think for main problematic one is it is a disputed fact what was said in the meeting when he was terminated mr libeling claims that he didn't terminate him is testimony is that he was told that he was terminated and in fact an e mail went out the next days saying that mr xi ari ari was leaving the company not that he was being transitioned somewhere else he was leaving  what is that evidence of a causal relationship between that and this downgrade in his title or responsibility that the shift you know of the event that you call germination and they call shifting him out of the is that he was removed from the motorola deal basically in late march and after that there was basically nothing for him to do because he had done what they wanted him to to negotiate a deal it was a i mean to actually put one hundred or more satellites into space was an enormous undertaking and it owns acknowledge that they needed charlie come in with his technical him after he raised the complaints about this attempt to do this stock swap and one is that they had never intended really to give someone of his national origin to responsibilities to leave the company not give him what was promised him and they didn't even give him the significant responsibilities of a president we're not asking this court to compare him to allies in terms of who should have been the only it's our job that we have t bottom line is in my mind and i think in the courts my should be is are these issues that should be left to a trier of fact or should it be taken away way and decided by the court in addition to the evidence the animus from the car there also were there was the testimony from widely that she and dennis janes were made a comfortable by the fact that marsh are already made notes in farsi and mr libeling and the court people would assume someone who spent their youth in a certain country would maintain at least both languages they would use both languages right best known that he might think in farsi i mean that i find it hard to believe a company would be discriminated against him for taking notes in farsi i'm just presenting the testimony of the decision maker