referring to is markku since she's now married i know she wants to be called marca yes i'm happy to do that go on that's what we will do and i will be addressing the issues of pregnancy discrimination retaliate under title seven and retaliation under the whistleblower statute for the consumer products safety and proven that and the e e o c will be addressing the issue of pay discrimination regarding i'd like to start with the pregnancy discrimination the first three parts of her were met in this case and there's no issue about that that she was a member of a protected class and that she was qualified for her job and that she suffered a adverse employment action no one ever said anything actually did they about her being pregnant nobody said anything about it but on the other hand they were careful not to was just today it was she who had told support superior on may thirty first that she was pregnant when she was continuing trying to get all of her expenses paid by the company on june tenth it was at that time that she reinhold that she was pregnant and it was two days later that he decided to have the internal audit it was no reason under these circumstances with the temporal proximity time they had done such an order this was the first time they had done s never any kind of internal word for any of the other department heads there was never an internal audit for anybody especially at the vice presidential level especially that this was the first time and i should point out not only that but by the time the internal audit started she had already agreed to pay everything somebody and she had gone on previous there's news trips wrecked she wasn't questioned about when she laughed or whether she attended every session correct and not only that you say that she had agreed to pay everything yes she had agreed to pay everything for the audit and it was for the day or two that they wanted to charge her personally correct and that was the only issue at the beginning of the what it was whether or not she had paid everything  follow her telling them that she was pregnant three days three days days long that warm and in fact you could even make the period shorter because at first he had asked for her to give evidence that she had tried to set  meetings and she had done that the next day so that even cuts even closer and for that reason that's why we think that in this particular type of case two to meet meet the threshold is definite temporal proximity even same person we don't believe that they were we don't believe that they were at all in fact what the court did was when it looked at the issue of temporal proximity it kind of went backwards and talked the retaliation that occurred before she told instance where the court did not look at the facts in what would be most favorable to the plaintiff there was this e mail where ms markku asked that she be paid the same as her peers did not use i we will obviously in the document the word male peers was not used but the court complained all their names did mention to all their names they're all male they're on the same committee they all report to the same person but in addition when she mused marc who was  she stated that when i had asked for more pay i said i want to be paid equal to my male peers this does not appear anywhere in the decision and the court did not consider it at all and this was a very important fact deposition testimony is to be considered in summary judgment that's basic and was not considered at all by the court i seem about to run out of time so if i could just briefly talk about the consumer products safety yes in that particular case again the court did not reasonable she had a reasonable belief that federal law was being broken the court said she did not show an objective reasonable belief we disagree because early her complaint was that the salary allocations were the salary allocations results that i don't understand i mean how does the federal standard require i mean it makes a decision to pay somebody x amount of dollars and she thinks that the market's more than that i mean how does that become a violation of the safety and well it's a violation to not paying enough or you need competent people and she could not understand that but her complaint was she didn't think she could find higher people at that level that was her that was her belief the she could hire people at that level that wasn't that didn't prove itself to be the case or we don't know do we she had done the research before if you're saying it just the simple fact that she thought that the market was much higher price and that makes out the fact that she thinks that there was then if the safety well there was we're talking here about the potential violation there is going to like a second step as well yes but it's completely different than if they were just ignoring a safety standard and not enforcing it right was different than that but because of the position that she held as vice president for risk management was part of her portfolio she had dealt with recall she had dealt with  battery case she knew that if she didn't have people and she didn't have competent people that for that reason occur all the time with in corporate structures as to what the appropriate salary structures with regard to her at the difference is most of the time the employees aren't retaliated against for that never what i believe were in violation would we could be in violation of the c p s see if we don't fill these jobs with competent people well we have to draw that she felt that she needed to be subtle she was not looking be in court she was not looking to be here had she said we're violating federal law she felt for sure in those circumstances there would be retaliation she wanted to be very careful and that's the reason why i think you if there are no other questions thank you very much you will hear from the ad makers from the e more in your honors in may please the court barber sloan from the e e o c we're here today to talk about title seven claim and we had two points that we really wanted to make one was that the district court erred in holding that to somehow be that the ph standard is that the titles haven't stand in your concern is that that's not the case right well of course it would be enough if you had well it would be if if it's conceded that it's an e p a claim but but there can be discussed people can be paid differently based upon for doing different work but still be discriminated against based upon sex or some of those us because of the case exactly your honor that would be sufficient but it's not necessary there are plaintiff should be entitled to use any evidence to show pay discrimination based on sex or any other factor the defense or judge seem to think that because her because she was the climate wasn't doing exactly the same work as her other fellow her fellow vice presidents of course she wouldn't be because they were all vice pres as would put particular areas she she would if we took that logic then no female vice president would all male vice president ever be able to stablish a discrimination claim based on on equal pay right well exactly that's exactly what she would be evidence in this case you're familiar with the benchmark base salary evidence i am here  r and it appears that mrs moore who was paid below the benchmark and all but one of the other vice presidents were paid a buck the bench well that was one of the points that pla definitely pulled out of the evidence and that would be certainly something that the court could take into consideration and so could a jury the important thing about all of these thoughts similarly situated their fact for a jury and it just the facts here are kind of like case that we cited which was the mcginnis case where the this court compared the director of human resources to the deputy director of programs had no trouble finding that those were comparable you know that you could compare those two and they were similarly situated act in terms of you look at what they required to do and the background to some extent but you know just look at the titles by all of the circumstances that that for example the court said in mcginn that the standard was that when you look at this is the situation sufficiently similar to the point i have to support at least a minimal inference that disparate treatment is attributable to discrimination it's kind of loosely goosey depends on the facts very my name is mark manchin i represent system x and the individual defended i'd like to start if i may by taking issue with something judge wesley said this case is not gunther right not gone through it's not the supreme court case and got the supreme court in gunther held a long time ago that there is a difference that you can make a broader claim under title seven all right however all right you have to make that claim i don't think the problem here is that the district court judge seemed to say that sure that they were doing the same thing same gyrus i don't think that's right standard do you i respectfully it's not the right standard but that's now with the district judge said with i'll take a look would like to broaden this case to show you this what the judge said was no once i reach decision that the positions are equal you are done that's the end of the inquiry was wrong and that was wrong and that's acknowledged and i think the second circuit has recognized that what this judge did know and let me let me explain why i don't believe that that's what the students did so you have to look at the evidence that was given to this judge in this case write this mark who put all of her eggs in the basket of i do the same or my job is as valuable as their as it was a street comparable worth of analysis there was no other made absolutely no other argument to try to broaden it everything was one issue and the judge looked at their brief and the brief clearly said that look we're not even to talk about title seven in fact they waive title seven we're not going to talk about title seven because we think we win on the equal work argument so they made no effort whatsoever in this case to argue that there was any other reason for it of course looking at the record can decide on any records of that is that is absolutely right however so in that case short of a waiver which i think frankly exists here but if you don't if it's not considered a waiver so now for the first time on appeal somebody looks at the benchmarking and does a back the envelope basically you know limited analysis in the science od this may support our position it doesn't to the  look at the corrector which talks about the expo or the expert sites what he looked at two of the men there were five people that had been trucking two of the men earned more than the median two of the men earned less than the median and plane it was right in the middle of those five people none of that analysis was done it's very difficult for people to stand up here when there was expert testimony presented when there was no discovery done on this below and to say well you know they could have done this the answer is very simple down below they thought they had one argument and that is the chief should make the same amount as the  factual issue that should go to the jury because they never made that argument there is no put in the benchmark base salaries and they show that this is mark was dramatically below benchmark because it ignores when did by the time you get to the summary judgment motion you should be at a point where you can offer the evidence your going to depend on in this case there was no evidence they didn't believe they had yes you can second guess yes you can monday morning quarterback but there was no real analysis there's no real analysis here all right the analysis was done in the court below and went back showed was that ms lenzie was paid fully competitive as fully competitive is defined in a in wage analysis she was fully competitive with other risk managers missed lenzie never claimed that she wasn't treated equally as two of the risk managers are right she said only one thing is claiming that because the benchmark then they sound for risk managers is twenty seven thousand right band is that market was forty four percent of in other words if you have fifty percent as the median she was earning forty four percent of that and total compensation forty six percent the definition of fully competitive is within plus or minus ten that was in the expert's report the facts are still for the jury if it is because because it was never raised below and because the minimal information they've given you now after the fact which contradicts the expert testimony which was never contradicted below doesn't support doesn't support that as far as a talk about the pregnancy discrimination so this is why i believe that the pregnancy discrimination it is not sufficient to the proximate timing of that fa matter all right the facts in this case of this she was told she has this case she takes a weekend she drives the three hundred twenty two miles in a in a car tell them she was pregnant three days before she went on this trip no that's not accurate here's what happened she goes on the trip she goes on the trip she comes back the challenge her expense report she said that i wouldn't have wanted to go anywhere challenge your expense report and even before not only the challenging expense report she keeps again pushing and pushing and pushing i want that have meetings i try to have meetings i couldn't have meetings misrepresentation misrepresentation is way too strong for that let me explain and he was wrong because that's the answer is yes yes he was wrong all right because if i can just put the timeline out there and i'll come back to that ok so she goes on the trip she comes back a supervisor questions she keeps pushing back eventual e he says to her look this is just you know so much b can take i didn't want to i didn't want to examine it or i don't want to examine it but there's just so much b s i can take she pushes back again that's the first time she even raises the pregnancy after he told you told her basically if you push back again i'm going to be forced to do a full scale investigation on this she pushes back again even then he doesn't immediately launch into an investigation ever did this with  president nobody else was ever warned nobody else in this situation was ever worn specifically that if you continue to push we're going to have to investigate you ever agree to pay for the answer is yes  agreed but she didn't and the way she didn't i don't i'm not interested in that's what you let me let me i'm not interested in this in this cute answer it's not a cute answer to pay for it or not your honor here was the problem she said she would pay for please you and i understand i don't don't she agreed to pay for it then she went to her own assistant and said i'm going to pay for this but i'm not going to pay don't charge me for the pax off the record did she tell her supervisor or anyone who you reported to that she was pregnant what was that day that day it was the day it's a correct that was it was several days questions she said i had morning sickness you know i'm pregnant so they knew by then right they knew after she was told that if you continue to push this we're going to investigate the answer is yes and over that any other expenses of any other vice president i don't believe they've done a formal audit of expense how it form a lot out they've done on its employees both domestic and foreign they've never done an audit of somebody else on the expenses and how much was involved altogether there was a small amount however all right the issue became that when they did the audit they find one of the factual issue let me just quickly do this after he says to har this just  much b s i can take pay it she continues to push he then says to her alright look if you provide me with evidence that you in fact had meetings all right and they  cancelled and you tried to move i will pay for this she sends thirteen pages of e mails the e mails make clear one thing that she was lying to him every time she said to him her or him being hurt supervisor that she was trying to get meetings the thirteen pages showed that for the day she left she didn't try to make one meeting and that they would no meetings that she ever tried to make which would during that weekend so now that's when he wonders the audit it's not just that she says all right send me proof and what she sends instead is proof that she lied to him as a result of that he moves it out to the audience with regard to the pregnancy discrimination the timing is the same you have circumstances before and that is your ready threaten to do that before he ever knew that she was pregnant and you have circumstances after the circumstances after were based on the fact that he found other intervening wrongful conduct which destroyed their trust in her clues in your time is expired yes and in conclusion i do apologize if it's certainly not looking to  it she explained in her response that she tried to make a portrait is mr magic correct when he said all she did was prove that you were no not at all what cheap email showed because that she tried to make meetings unfortunately most people as she found out were not flying in early as she assumed that she they would so she was unable to make any meetings but she tried to make meetings which is all that she said what i believe is that the facts do matter however the facts met how the facts matter at a summary judgment stage is that the court is supposed to take all facts and in how they favor the plaintiff when mr mansour said i don't want to do forensic examination he also said in that same e mail as far as i'm concerned the matter is closed mr manchin looks at that as a threat i don't look at that as a threat in the court shouldn't look at it as a threat that was him saying i'm done this is what i decided and that's it when she came back later and said you know i would in the gone unless i felt i needed to because i had morning sickness he could have said what's wrong with you i already told you i made my decision instead he reopens what changed what facts changed between the first time in the second time he now knew she was pregnant you know she was pregnant and he hadn't at this point and because there was retaliation we didn't really discuss the specific s it but there was real prior to this she had been the motive she notes she was chained to her desk even if she wanted a cup of coffee it was taken off like a vacation day when else and her and no one else at her level was treated like that at all in court decided that it was going to discuss the title seven the court below looked at the issue of whether or not there was any kind of claim of a hostile work environment and what we had claimed below was that you know there were all these instance of sexist remarks and then appropriate behavior among while none of them related directly to pay they did show that this was an atmosphere where there was hostility toward women and other other times i mean there was an equal pay claim which we are not we're not appealing the claim but i believe and we believe in the e e o c believes that the court incorrectly married the two saying that the indication of discriminatory animus that i take his argument to be and that's special panix forty eight the court takes takes issue with the clarity of your of your of your pleadings and and then crosses into the title seven claim but i'm having trouble parsing out of the that it's view that you actually did that because you  there's an acknowledgment that you had to prove discriminatory animists yes and and but the court does seem to seize on tomko which is our case which has that unfortunate quota claim of equal pay for equal work on a title seven and the state statute is generally analyzed under the same standards as an e p a claim that's you know it's always twenty twenty for us and maybe that was an unfortunate sentence because i'm not certain that that's it's true in the context of tomko but i don't think it's always true well it's definitely not true in this case every everybody's part of the male vice president because she then she has your court judge then went on and seemed to think that the compared to ours had to be that she had to be able to do that compared to  job for that to be a comparative or right i don't think that that's the standard in title seven and i get that to be the concern of the sea and the rightful concern and under the facts of this case there was not a single vice president who could do the job of the other vice presidents this was true for all the males as well so which is why you have the court has to look at the record to novo and you get your point is pressing in the sense that you never really made that argument is that well the argument was not made explicitly below but the title seven the title seven claim was preserved there was a title seven claim you did try to argue though that the vice presidents were equals i don't think i think that she at all times and if you look through the record the phrase used is not equal it's come it's comparable ok comparable is different than equal thank you i thank you your honor thank you well interesting