good morning ma'am please the court i'm kelly horowitz representing appellant elsa chavez your honour's as happy as i am to be here this morning i should not be here this case was filed in state court it's exclusively state law claims the apple e chose to remove it to federal court on diversity grounds and at that point the apple e took on the burden of proving by a preponderance of evidence that the amount of controversy exceed calculation three hundred thirty one thousand dollars right wages the math is correct your honor but i would respectfully say that the time period for calculating the damages under the law is incorrect it needs to be at the time of removal at the time of removal she had been unemployed for thirteen months so if you think the standard is how much damage has had accrued by the time of  language and matheson as well the support center protection and there are the district courts have interpreted your cases to mean that you look at the wages up at the time calculate up until the data for mobile and you can't consider any anything in the future for example you have you have a claim for loss of earnings and loss of earning capacity and we can't consider any of that that would be that is our position and further and what what's your best case for saying we can't consider an incapacity you want to recover that money right you're not waiving you're not waiving this no we're not waiving this so that's all right you know waiving the three hundred fifty thousand dollars that judge would cock referred you to now we are not waiving that by any means ok so what do you do want that money that is part of your prayer for relief if we were to put a number are the prayer of relief that the problem is it is the apple lee's burden to make that case and they how difficult is that if you're if your client if your client as is earning just around forty thousand dollars a year all you need is two years already you already missed thirteen months so there's half of there's half of the seventy five thousand dollars in past wages you have medical expenses attorney's fees yet the seven hundred fifty dollars that you wanted under the twenty six claim all you need is one year of earning capacity and she asked for earning capacity if you're going to get it give her one more year which is not too difficult to get to and she said she wanted another nine years your honor that i appreciate the suggestion that my client can and should get a huge amount of money but the problem is the law on only again i would say that your authority is being interpreted by the district courts in that manner but castle this is a pretty fundamental point this is pretty important for district courts on diversity jurisdiction the doing this a long time i've never heard of this principle that you that you've been citing to us i taught civil procedure for ten years i've never heard of this if you got a good case for us that tells us that we can't consider a claim for future lost wages well i do have cases that say you can't case the clearest error i would say is the labor code section two to six interpretation if you went on that you get seven hundred fifty dollars we do and that's to get anything more than that we don't which again i guess goes back to the jurisdictional question that the one clear damage amount in this entire case is a seven hundred fifty dollars claim ok what next ok so briefly on  labor code section two to six the district court imposed a knowing and intentional requirement saying that in order for there to be any liability the employer needs to knowingly  provide employment records there is nothing in the statute that says that and obviously elsewhere in statute they do impose a knowing and intentional requirement which further supports our interpretation that there is no relevant no such the law is not sufficiently broad to protect employees who put their employers i notice that they're requesting or planning or need care for leave that is not the state of the law in california in fact the law is broadly she repeatedly told her supervisor i'm having these medical issues my arm is going having headaches i have this anxiety in the stress and i can't take vacation the question of whether that's adequate notice is one for the trier of fact but when your employee says to you i'm having medical problems and i can't take any vacation time it's a reasonable interpretation to say as a trier of fact oh gee well maybe that at that point the employer needs to step up and say you don't have to take vacation time if you're having medical problems let me tell you about this thing called family and medical leave with respect to both of the discrimination claims the happening and that's not  i mean even when she says i can't take the cation it's not even clear what that means and may mean i can't take the case because i'm not feeling well i don't know what it means right but i think in the context of saying that my arm is going and i am and i'm having these medical problems answer do you say that the notice the request for notice does not require any specific form and actually this is the one i was looking for because we actually argued that previously in california villa versus continental airlines there there were also questions about whether mr avila was adequately requesting leave whether the notice was sufficient when they got word that he had a hospital visit the notice notice to her employer that she may be in need of protective leave and at that point a couple of pieces to it one is when you look at the entire universe of evaluations on the one hand she's being told mid year you need to improve and then the employer will come along and say well ok you know we've seen improvement you're meeting our expectations low meets expectations with the category they would put it in and in fact even when she was on her performance improvement plan her supervisor is giving her a valuation that says she's meeting expectations so first off we think at least as a prime official matter which is what the court categorized this as there is sufficient evidence to show that she had performed her job adequately and in particular the treatment of her replacement when miss serve a comes along and she runs into the same problems generating loans in that office she was not terminated and that is what they say she wasn't terminated either in fact she was offered a job didn't take well to me she was she was terminated from this position she had another job offer on the table with that or many famous the other person they were going to different job she was given a different job she didn't she didn't take one job that she was offered the evidence in the record is that while she was in the hospital another that h r people reached out to her and said well what about this job offer that we'd like to give you and she said i can't address this right now i'm in the hospital she came back to work a day or two later and that's when she gets fired while she has a pending job offer but i thought it was also in shops and she was off there was one job as she refused because that's because of wages there were two jobs are offered she she had one that she it because if you do what that way you never get to the question of whether those evaluations were legitimate about exactly so we certainly think you challenging the evaluations are not really your why you're challenging is simply stage given the low level of it you ought to you want to look at her minimum competence for the job which she certainly had exhibited she'd been in this field for thirty years she's been in this particular job for two and a half years she kind of bounced back and forth in her valuations as to good morning may it please the court my name is sherry squeak i'm here on behalf of chase bank and i thought i would just address a few points that were made in the reply on the jurisdictional issue  there was an argument in the reply that ms travers is no longer pursuing her claim for failure to hire which would be relevant to the thirty nine thousand dollar annual salary and  this is now just a terminations case and that we have not pointed to the evidence of what she was making in her a plaintiff has the opportunity to waive certain kinds of damages and we do see these kinds of things where somebody will waive anything above seventy five thousand dollars in order to north keep it in state court and i don't see that that waiver was if it was out of the reply brief that's that's that's pretty light especially when both sides seem to stipulated to the diversity jurisdiction of the district court and i don't even interpret the reply brief to be waiving anything that's not my interpretation but i thought i would just point out that i did find in the record it's in the second volume of the excerpts on page two fifty six lines fourteen through eighteen m testified in her deposition that on average with her commissions and salary she was making about forty five thousand dollars a year in her mortgage banking position which again would meet the jurisdictional her r quote from that case on page nine hundred eighty is that the amount in controversy includes the amount of damages in dispute as well as attorney's fees if authorized by statute or contract in here under the  defendant now certainly if miss travers were to prevail she would have been entitle to her attorney's fees and the emotional distress damages i think seventy five thousand dollars threshold is easily m she basically says employee goes up and says i'm having these medical problems i'm out of the cation or she doesn't know the you know workings of the details of your family leave policy doesn't the employer have some  the employee and say well we do have this program for you actually the california regulations do and numerate the elements of when the employer is obligated to make that inquiry first there needs to be a request for time second the employer needs to tell the reason for the time off and that reason needs to be qualifying under the statute and starred the employee needs to tell the employer how much time is anticipated need before there's any obligation to say there's only yes let's drive away from the regulation and here you know maybe her big statement about not being able to take vacations even you know liberally construed as a request for time off she still doesn't say i need to take x weeks off to figure out what's going on with my arm and my headaches and but and how do you make that that knowledge of a disability isn't feuded to the employer when those are the only reasonable interpretations of the facts and here you know having had a x and a rm in stress that's not necessarily a disability or c for qualifying in fact there's she admitted in her deposition that her own doctor said her stress was normal normal stress nothing wrong with her  they need to take sixteen days off and that only if he she says the second does the employer have any obligation i would say that when you look at what happened here some vague statements strung together at different periods of time that you do need something more isolation i just i can't take a vacation is a request to take a vacation is is to me i think too much of a burden to put on a mid level manager to say you know what this might be a fight other cases in our brief regarding you know sun there were some fact patterns where the employee actually said i needed to be in the hospital for three days and that wasn't enough somebody at the at the at the bank that says i talked to her and she said she was in the hospital or at the hospital and it's not clear that she's even in the hospital being treated for herself as opposed to in the hospital visiting someone else and she just couldn't talk at that time  was my understanding of the of the statement looks like nobody nobody really made any inquiries and she didn't say anything right in that and that's part of the strong to gather information and you know she's talking about headaches and stress in november and this comment about being in the hospital for an unknown reason is right before she was terminated in beginning of february so these are the recruiters notes those are the recruiters you know she can't make a decision right now she's in the hospital and that's or if it's a safe or a qualifying reason and you know and the way i see it she should never request the time off she never says i need to take some time off to take care of this problem case qualifications for a position with or with are out accommodations you know i would agree with you on not point because the problem the same performing company that's usually the core of the argument she says i am providing accompli he's they say you're a or she was a member of protected class two that she was qualified for the position she sought war was performing competently in the position she held so that's what the standard is correct right and i and that would make sense to say qualified for a failure to hire case but in this case on appeal we're just talking about the term nation and if you look at the performance timeline she wasn't performing satisfactorily and i could go into the i broke it down why at midyear she was needs improvement and why at the end of the year she was low meet and that's because she you know the metrics are measured on a rolling three month basis by the end of the year and in two thousand and eleven and twelve she was able to pull it off by the end of the year which which is why she stayed employed but towards the end of tw wasn't pointed off and what what the metrics were in so what what she needs as a minimum standard to not be disciplined or terminated is about two units per month and four hundred thirty thousand dollars and loan origination dollars now that's just the minimum the goal what they really want you to do is actually much higher you'd be in a much stronger position fact that she wasn't meeting her standards is a more just for ochre doesn't protest she was a generally incompetent ploy in general so i don't understand how you can do this at the prima facia well well you're saying it doesn't matter and it may not but if we correct and so she had to respond completely and if we thought to just record should not have sounded at that level we could still go forward well the reason we get from not performing competently to terminations and is because she wasn't meeting minimum standards there's a cot off and that's in all of the documents that what the minimum standards are and the actual goals are much higher meaning there's a new standard for this particular job because she is claiming she was wrongfully terminated that's the claim here and what we have objective metrics that she wasn't meeting it didn't jump to terminations and it was a performance improvement the opportunities would that would that have been sufficient i'm sorry if she had been offered the opportunity and i wish that the opportunities had nothing to do to prove the facia case yet you are a lying on them heavily why because they their proving and absence of projects essential i would say both it goes to the element of performing the job satisfactorily and it goes to pretax because there is no evidence of that here ok thank you for your honour's too quick responses with respect to the california family rights act i do not recall offhand if it's the language in a villa or the cases that avila relied upon but you can find plenty of california cases that say there are no magical incantations required in order to request leave the employer is in a much better position to understand what the employee's rights are and to step forward when they see an employee who has a medical situation and is indicating that they may need leave what about the regulation just refer to the se specifically that as a percent of fraud i would say that the cases have subsequently clearly interpreted the law and regulation to say that you know you don't have to check off all these particular boxes it's again that there is no magical incantation you just need to give some notice that the employee at the employer may reasonably interpret as a need for leave so that they can step forward and advise you of your rights and quickly with respect to jurisdiction all this talk now about what the attorney's fees might be what her salary was the bottom line was they had the responsibility to bring forward evidence when they removed it they didn't tell us what you've raised this on appeal for the first time so didn't  stipulate with with the other side that the district court had jurisdiction under diversity you cannot stipulated your state i understand the problem didn't you stipulate that the jurisdictional that that the district court had jurisdiction under thirteen thirty two that you didn't really have seventy five thousand dollars correct sometimes when you look at a park or you are used to feel a thing that you cannot recover more than seventy five thousand dollars we are not stipulating thank you for your time thank you very much