good morning i'll try to help you watch your time but it's really kind of up to you and so how much time which you like to reserve your honor i i believe the majority of my time will be able to reserve most of the issues i feel like  were fairly well fleshed out in the briefing in this case and so most of what i'm here to do is to answer any questions that any of you have and highlight some of the key aspects of what we think are important to our people let's let's see how it with a good a good history with the company a solid background and once scuse me once he began to have issues with a particular practice that the company was participating in and raising concerns with the legality of doing what he believed to be a violation of a court order in another case and using his name to do that after he continually raise those issues the company and company retaliated against him began harassing him began undercutting his sales positions and not providing him with the support that the other salespeople were provided there after he suffered a severe amount of stress from both constantly thinking about this issue of the company using him to violate this court order which he believed to be a very very severe violation of law and a result of the retaliate tory behavior of the employer he suffered this severe stress informs his employer and with a week within a week of that information coming to light to the employer he was terminated it's  contend exists in this case is the fact that his name somehow or his accounts were somehow being used for this julia lindsey is that correct basically your honor yes that's correct it was his name being used for these other accounts because his understanding was that this prior court order prohibited the company from pursuing certain accounts because of trade secret issues between part between companies in a prior lawsuit so we had an injunction that had been issued it applied to ms windows as husband it applied to shamrock i think the language of that is probably broad enough to include julio limbs but so so that's the protected activity as i understand it that you're contending here what is the evidence of the third factor that we need to look at for retaliation claim which is the causation factor your honor the cause ation we believe is based on the temporal proximity between when he began complaining about these issues and consistently raising them the issue of having his name taken off the accounts because they were kind of using him  and in the temple proximity between that and when he was placed on a performance improvement plan and then terminated despite the fact that he was named their top performer just months before he was terminated and put on this performance and what is your best case for conservation if you can point us to that for the temporal proximity was sure your honor and if you can't find it well look at what you have in the in the briefs a apologize that i'm a little slow on that that's ok i do believe that we have a solid case law in there and there's one other issue that i'd like to have long before you get  to the time line so as i understand it the original complaint that was made by mr stripling was in mid two thousand and twelve the argument is i mean and i read in the briefing that he continued to complain about this in the two thousand and thirteen he's term unaided i think affective march twenty second of two thousand and thirteen and then in the intervening between the complaints and the terminations he's placed on the performance improvement plan on february sixth two thousand and thirteen so we've got this performance improvement plan that is in the middle of this temporal timeline did he perform in accordance with the terms of the performance improvement plan your honor it is our position that he performed as as  he was intended to within the performance improvement plan that he he executed his job duties he did everything he could to gain accounts the there were issues with his sales numbers but that was not a result of our client's failure to perform in compliance with the pep it was actually him being undercut and accounts being taken away from him underneath hand and undercutting this unachievable and that the real reason they terminated in this because he was complaining about having to do things he thought was illegal under the injunction is that the argument absolutely honor now you know we've got a second case and we're going to get to that i do yes and he's not the only shamrock employee that was placed on a performance improvement plan correct were all of the employer use in this new office shamrock put on performance improvement plans not to my knowledge and not on the record your honor there's no evidence on the record that that's accurate that that happened in terms of the documents that were excluded by the trial judge and as i understand it that's primarily a fifty plus paragraph affidavit of your client yes anything and i looked at it but i don't remember the details is there anything in the example it's documents evidence that was excluded by the trial judge as being  the documentary evidence your honor the the declaration by the client that was filed in support of that i do believe lays out that temporal proximity that this definition is a self serving  statement you have any other evidence other than the declaration to support your claim on that your honor i believe that there is deposition testimony that supports his claim that he was complaining during the timeline that you've just laid out for understand it in some cases can support and inference of causation but it's just one factor as to whether we should draw that inferen you to address on substance what he was doing in his job whether he was making enough sales or opening enough accounts to justify what he was being  there i should address that your honor i'd like to draw your attention to the facts that lay out that mr strickland was a top performer at the company as of as recently as december of two thousand and twelve he was named the top salesperson in december of two thousand and twelve before being put on this pip two months later actually about a month later than that and your honor i think that that is evidence that this was a pretext situation because he was he was a top performer he had had a history going back to i believe it was two thousand and eight showing that he was a strong performer that could bring in sales and maintain accounts and do very good work for his company yet within months of him complaining about this he was let go and i realize i'm circling back to the temple proximity but i think it's important to recognize that these other factors of him being a turner who supervised him during this relevant time period indicated that he had that your client had the lowest profit margins on the accounts of the accounts executive in his salary which they look at and they're expected to do a lot more some just trying to figure out what's your response to that well primarily with respect to the reason that we're here we were before the court on a motion for summary judgment so i think it's important to recognize that yes not all of the facts are agreed here and that the defense has put forth certain positions with respect to numbers that were required that may have contacts that needs to be given to them and there's only there's only so much context i can give you all here today because of what we're limited by the record but for for purposes of a motion for s judgment there are certainly facts in dispute we would maintain to evidence that he was a strong performer that he could made complaints and that as a result of those complaints he was retaliated against and eventually terminated overcome shamrocks legitimate reason for his terminations namely that he was poor performing sales account executive he was placed on a performance improvement plan when he failed to perform he was legitimately terminated we didn't talk about some of the other issues that with respect to the protected activity in the in the wrongful discharge claim we can if you want to address that since that was the focus of your your honour's questions i'll address a few points to that first of all he doesn't establish that he engaged in protected activity because both under wrongful discharge claims and under the section eleven o two point five c claim he has to establish the his concern about the use of his identity amounts to a refusal to participate in illegal activity and that's not the case here th district court part properly concluded that stripling never alleged that he was fired because of a constitutional provision or a statutory provision the district court further concluded that he never alleged or had facts that chair mark could have violated a court order refuse to participate in an unlawful activity the record demonstrates that he raised some questions open ended questions to his supervisor about why was his name being used on accounts and he found the behavior odd the testimony fro deposition never said that he complained that it was illegal never said that it was unlawful and therefore he did never engage in protected activity as a result those two claims failed to meet his prime official case and summary judgment was properly with respect to temporal proximity i don't want to get too much into that largely because that's an issue first raised on appeal the district court correctly noted the causality with respect to the retaliation claim was never addressed in the opposition to summary judgment and an issue right first required to open at least two accounts per month when he failed to do so he was put on a performance improvement plan and that performance improvement plan in february two thousand and thirteen specifically required that he had to open two accounts that in the next thirty days he failed to do that in february of two thousand and thirteen and he failed to do so in march of two thousand and thirteen so when they were looking at his orders and realizing that he was not meeting the legitimate sales expectations set forth by his employer they they determined that he was not succeeding and they processed his terminations and he was the correct posted the lowest gross profit of any account executive in his region which is a whatever the time is where is that requirement come from that comes from shamrocks business operations in the way that they have determined what they need to do a sales account executive needs to do at a minimum level in order to be profitable in order to sustain the amount of of salary and benefits and overhead that shamrock is providing to that employee as well as in order for them to be profitable mr stripling was a sales representative and he needed to reach out to sales and new account representatives whether from hospitals hotels restaurants to sell food orders and it's only until those order ship that shamrock receives the economic benefit of that sales transactions which then makes him profitable in his region now was there a written policy that he was aware of yes your honor when he was hired and transferred to the southern california region he was told that he was expected to open new accounts that's also in the record he's admitted to that he understood that he also did understand in two thousand and twelve that he was expected to open two to three accounts per month and then he was specifically informed when he was placed on the performance improvement plan by his supervisor that he was expected to open and ship at least two accounts per month so he was well on notice of shamrocks shamrocks legitimate performance expectations so how was the award shortly before being put on the performance improvement plan if your colleague on the other side is correct the virgin i respectfully your honor i don't find that fact in the record counsel i want to go back to the retaliation claim in the protected activity i thought that in reading the briefs and all of the material that we had the record in this case i thought that the parties had conce protected activity i think it was the district court found that that that he did not allege a violation of a statutory or constitutional provision and that furthermore that there was no facts in the record that would suggest a violation of a court order ever occurred whether a violation of a court order would be sufficient to establish a whistleblower claim as a hypothetical it's not supported by facts in this record because shamrock didn't violate a court order nor would there be evidence that it could have violated a court order under the facts of this of the record well i understand that argument i understand you're saying that the inadequate facts to support that there was actually a violation of or there was some protected activity here mike my initial question to you was whether or not you agree that violating a court ordered injunction not to take somebody other you know clients  a violation of or noncompliance with the state local or federal rule or regulation that's a statute yes your honor and what's the second one the second one is the wrongful discharge claim right and that requires courts have been cautioned to say in wrongful discharge claims you can't declare a public policy without a basis in either constitutional or statutory provisions and let's assume we find a protected activity here let's say we get over the hurdle of the first factor he was terminated second factor satisfied third factor for retaliation claim is the causation factor as judge gould pointed out there's plenty of ninth circuit precedent out there that establishes that holds that a temporal connection that the court should allow for the jury to resolve your own i think courts in the ninth circuit while have addressed causality in temple proximity they've also said and have rejected a bright line rule that a particular period is either too long or too that's the case of porter versus california department of corrections quite simply temporal proximity alone is not dispositive of causality there needs to be something more there needs to be other issues and other evidence of of retaliatory motive which is not present here and your honor rightly has to cut the timeline down the first complaints if you could call them that really the times he took he talked to his supervisors allegedly and asked why was his name on the accounts occurred in july of two thousand and thirteen performance improvement plan he failed to perform in march he failed to perform in february it was clear he was not going to be me meeting share mark satisfactory legitimate performance expectations and he was justly terminated so the consider causality on the record and again your honor respectfully this is she was first raised on appeal before the ninth circuit it was not let a gated or addressed in her opposition before the district court which is why the district court in his opinion so there was this delay between filing of the supporting documents and the complaint of the complaint i guess i think it's about three hours and  turn for howard how are you prejudice i think you claim that you were prejudiced by that and that it was somehow circumventing the page limit and i just i'm not sure that that's clearly supported by the record but i'd like to get your view on that at this time yes your honor samak was prejudiced by the late filing of those documents while i understanding leaves three hours from midnight to three am it did require additional side documents that were not fully incorporated into the opposition and as a result the opposition was very muddled and it required our attorneys time to focus on what was in that fifty eight page declaration which allegations were not even referenced in the opposition where the cites to the record were appropriately located and unfortunately a focused it forced us to deviate from focusing exclusively on a reply brief to other issues it's also respectfully prejudiced shamrock because we're talking about it here on appeal and we had to devote some of our appellate briefs to this issue whereas had the plaintiff had just fought followed the court's standing order and the court's deadlines we wouldn't be in the situation so that's where the prejudice lies it's need to show in time and legal fees that we've had to be focused on this with respect to litigating and preserving this issue before the district court and on appeal so if it had been filed at eleven fifteen in your client would not have been prejudiced but that the that the briefs were then done and respectfully i understand the excuse of why it was late filed but counsel fell ill on a saturday she easily could have caught contacted opposing counsel by email asking for a brief extension she could have contacted the court on the business day when the court was open on monday february ninth she had all day to do so she failed to do so judge brinn all found that that was not excusable make lacked you review that decision on an abuse of discretion standard which requires that you have to have a definite and firm conviction that he committed a clear error of judgment which you don't believe is the record here on appeal and i ask you you uphold judge brinn also decision to exclude the late file reply and judge brinn all has the right to that i guess i'm trying to trouble understanding how did that affect you because the way the documents were filed they weren't the facts and the documents in the opposition had no cites to record so we had to go through the record to figure out exactly what was being cited to we had to create additional objections to evidence we had to do additional  nine right they would have had to file it properly in accordance with the court standing orders which require a citation of record to the evidence filing a proposed order things of that nature which counsel failed to do so was a violation of  court's own standing order that created the prejudice not necessarily the time delay and see my time is up lest you have any further questions i'm happy to answer i have a question the district court and giving that sanction of excluding it to the record say it was because of these factors other than timeliness it he did say in his opinion your honor that the facts have been muddled by the failing to that the judge should have permitted that filing at three am then what happens on the summer just your honor respectfully if even if you were to consider the allegations in the declaration they and but if we if those are included hops them and there's no facts to support the correct and it should be affirmed based on judge bernard's decision i just want to be clear ok thank you does anybody else have any at eight zero nine f to d thirteen seventy one specifically at thirteen seventy six secondly why does that help you though what in that case helps you yes your honor i i believe that that case specifically lays out and shows where that it does not have to be within days there can be within months and that the other factors within the employment can lead into that decision and so that's why i believe that they support us secondly i would like to point out that there was a question raised as to whether it is within the record the fact about our client making that top salesperson in december of two thousand and twelve that appears in address the issue of whether he sufficiently raised the issues to write with his employer to rise to the level of complaints wow the defense would like to characterize what he was doing as merely raising the issue he was continually going to his employer asking that his name be removed from the documents because he was not ok with being the forefront of this what he believed to be illegal activity that with respect to the illegal activity i also believe that the weingarten case cited actually in me a pelleas answer brief it's a really long citation because it's lexus i apologize but it's two thousand and twelve u s district lexis one one four six five one that case specifically lays out that an eleven o two point five seat claim can possibly extend where the employee has a reasonable belief that this is a violation of law and therefore extending the protections under the whistleblower statutes beyond those that are simply violations of statutes constitutional provisions or regulations finally i would like to address the late filed documents as the court and opposing counsel have acknowledged we would respectfully request that this court overturned judge pronounce decision on that and agree with the court that this was a draconian method used and and it ended our client's case as a result of sickness of his counsel unfortunately yes his counsel came down with a very very severe very quick onset illness on a weekend and unfortunately her her counterpart me was out of town and unreachable to in that timeframe things could have been maybe different had i been reached but i couldn't be reached and so this all came down to you know the the end of the line there's only so much evidence on the record for you about that but i believe that reasonable inferences can be drawn  t she was not within her normal state of mind to make the judgement calls she did not necessarily have access there's no evidence that she had access to call opposing counsel on a weekend and by the time it comes to  monday she's staring down the barrel that two oppositions and trying to accomplish everything and dedicating her time to do that with you thank you thank you very much any questions ok