received the race city tribe or at the mira loma facility because a it seemed to me from your brief and some of the letters flying back and forth decorations and so forth that you had received that information prior to posting somebody's judgment up that's correct your honor a portion of that information the information that we did receive is the actual discipline written disciplines that were issued correlated with race but only of those who received those permanent write up disciplines not the entire demographics of that workforce and what that that the problem with that your honor is we only then had the evidence for such a stickler purposes of those who would actually receive discipline as opposed to the races of all who had who work there so that we could determine correct it's not correction on what we did not receive the demographics of the entire work the entire workforce of that class of drivers who did not receive the the racial makeup of everybody in that class what we received was disciplined disciplinary documents themselves and we had to sort through those ourselves to be able to to compile that data and present in the district court to show that these these remarkable racial disparities and that gets down to the circumstantial evidence and this is again just discrimination discipline case entire demographics of that work force and so just to be clear that i understand what you're saying is that you received the demographics only as the individuals who were disciplined that's not receive information as to individuals who or drivers who worked at the mere alone left facility who were not disciplined and so therefore you couldn't compare to the term and whether minorities were targeted that's what we did was aggregate the data that we did have which was the actual discipline documents themselves and go through there and say let's look at that half would not tell you what the other however other members of the yes your honor what we did well we are a compilation of the luminous set of documents served on us the last day of discovering a lot of this information was dropped on us the very last day of discover judgment was taken up again there were eight months all right so in that eight months did you ever moved to compound where the records that you needed we did not move them how but we engaged in a long meeting confer process that was set forth in the declaration of mr smith and in support of our fifty sixty request that demonstrated that we worked with the opposing counsel to obtain the information and finally at the very end of discovery we did many interesting thing about that your hon identifying that person on the last day of discovery how much going to bring a motion to compel about those individuals or those comparative or of intellect in the eight months you failed to move to compel is that the lack of due diligence mean the district court with it has got to pass the ability to manage it move at fort absolute and having continued it r d once and given you substantial time in order to gather the information why should we say that's a lack of due diligence it's not it's not a lack of  present to the district court which we believe standing on its own without even without the rule fifty sixty has a very stark racial disparities in in how the discipline being meted out the ninety one percent of all of the people that are recommended for the final written warning are in in this case are minorities only blacks and hispanics were recommended for terminations but these types of statistics when you add those along with the direct statement although it's not a direct statement of of direct racial animus the statement of i could write up twelve guys a day for this stuff lloyd but i choose t right up you the district court resolve the inferences from that statement simply to say that that mr link had the ability to use some discretion as to whether to write going to give you this information we're not going to we don't have the underlying data so we're not going to give you the underlying data that shows whether people are delivering things on time or not well but what we are going to do is give you the disciplines and we're going to correlate we're going to correlate the races when will they say that they said that when did you ask for it i we asked for it in within that last eight months or within the last eight months yes right after we were after we received after the district court allowed us more time to go get that information i'd like to move on to charles thomas and that the question presented in mr thomas's case and  it can kind of be viewed one way or the other whether you allow leave to amend to put in a statutory basis a specific statutory basis for tammany claim or whether simply the tamm claim was wrongly decided by the court below because it wasn't the actual code sections of california labor code eleven o two point five and six three zero one zero we're not played in a regional complain discovery including the e mails that were there that showed that mr thomas not only made these disclosures about a wide variety of violations that were going on there but he refused to participate and under the earlier version of eleven o two point five it has been recently amended under the earlier version of eleven those who point five if you refuse to participate you're not required to go to obtain the protections of eleven o two point five you're not required to go to law enforcement you're simply required to demonstrate causation but the adverse action which is clear in that case terminations the followed closely on his disclosures within a few weeks was related we offered substantial and specific evidence there that of that because it was the changing explanations for the terminations first the testimony was it's because he made complain to world back to the national headquarters in florida then they came up with this code of conduct violation or a security breach those were never in the right in the socket we could because in this case you did blow  that has to be good cause what's the good cause shown in the record the good cause in the record is the last day we were facts that appeared after the last day to ammend which was the date of the case management conference so we had an engage in a discovery at that time as soon as we found those facts as soon as we found the e mails that showed that mister that mr weight i'm sorry mr thomas had had refused to participate in the illegal condo that is when we moved to a man and include an eleven o two point five claim and this was early on in the case this was years more than a year before the case was was finally over and then at summary judgment we said the tammany claim is based on public policy and that public policy is a loving no two point five and six three one all the evidence bore that out in discovery and that we we believe that that was say you gave it to him correct and what was what form was it in if in response to an inroad tory what form in response in iraq a tory twenty one you know you gave a response and you can't find your inner ar twenty one response it certainly can i believe it's it's reference in the record but it's not in the correct spot the consul so you heard the questions at the beginning you couldn't have looked it up while you were waiting to get on as i mentioned i looked at the reference that is in the record or is in the brief and it does not correspond to the record so how are we supposed to find and resolve this dispute well that's the trouble the fact of the matter is that  your honor the it was a written response or did you actually produce something separate attached to it in the raga toy like a spreadsheet that basically lays out the race of all of the workers that honor be happy to explain that so the problem here was there was no request for these items until the very end judge fisher's scheduling order specifically said you need to serve these things well in advance of the date of the cutoff date so that any disputes can resolve by way of motion what happened here is that those those items were requested the very tail end of discovery after their first continuance in those eight months were talked about here not only did the fed ex go to great lengths to provide that information evidence with all of the listings of the of the races of the pm the drivers subsequently council made a request being a rugged terrain around three twenty one that i referenced on the on the twenty second of may making a deal on june of anything to quantify or go out where we can see it right in so what was provided was in the in the p m k deposition we provided all of the races of the senior drivers with regard to the inner artery response it said there are only five individuals for whom there are no corrective actions and here are their races none of them were african american so with so ok let me make sure that i have missed and the record from your perspective p m k deposition you gave them the information regarding the race of not just individuals who receive corrective action but individuals who did not receive corrective action as well at the p m k deposition in response to the request that was made we give them of the corrective actions and the races of those individuals but not the ones who did not receive correct that was not requested all right so now we get the summary judgment the first time around they didn't have the information to pose they asked for a continu granted and then in the eight month interim at the tail end of that right i'm trying to understand factually what you're representing in any point if i'm not correct in the sequence of events let me know that but at the end of that eight month period did ask for the races of individuals who did not receive corrective action and we don't care when that was but you turned it over and that is in the rock a toy twenty one that that that that is in our record that you can't find what is not in the record and you are going to supplement it is in the record and so the response of the inner arbitrary was please see we've already given you all of the races for those people and there are five people for whom there are no corrective actions here there are races that give you the totality of the races of all of them the entire workforce everybody's gotten a corrective action with the exception of five people exactly so based on that information it was very easy for them to derive what the information w the composition of the of the workforce was with regard to the safe drivers even with that information they failed to do so and again i go back to the timing of that because there was no time for for any resolution via discovery motion the did and we're talking about this category of pickup and delivery drivers are city correct all in one particular location and that numbered many dozens of drivers for whom we provide all of the corrective actions and not only that but also the underlying documents upon which those were based and the races of all of those individuals  have within a week ok very good with regard to mr wait there is it's very important remember that there's a shifting burden here with regard to mr wade he has to show first approve a prima facia case he does not dispute that there were legitimate nondiscriminatory reasons for the actions taken in fact if anything what we have here is a case of extreme it's pretty extreme case really of fairness forbearance with regard to the conduct of mr wayne gaged and he acknowledges that he did not receive any discipline of any kind even though he gave in some pretty rigid conduct including smashing a coffee cup a splash coffee on a supervisor then smashing a wall with his hand and kicking a column so the opposite of discrimination is what we really have going on here mr weight has offered no proof that no no immiscible evidence to establish any pretext to show that there was actual intentional discrimination going on here with regard to mr thomas there's several different reasons as to why his claims must fail primarily because his his entire theory and claim change at the very end even without getting leave to a man from the court to do so he had moved previously untimely i might add with regard to the eleven which you point five claim that would have been futile anyway for then for many reasons that we address in the court below and that that opposing counsel failed to respond to with time it's important to note that as of january first two thousand and fourteen those to actually change dramatically prior to that time it was clear that you needed to exhaust administrate of remedies with regard to finding a claim a complaint with the labor commissioner  he did not do so there's nothing the record that suggests that happened after general first two thousand and fourteen that would be a different story but there was no exhaustion of minutes rate of revenues similarly there was there showing on this record that engaged in the protected activities in to instead what he said was a deposition that he forded the package of documents to a gentleman named jeff baker for the purpose of addressing a customer service issue that he was concerned that the delivery times did not correspond to when people were actually getting their freight and he testified that that was the the extent of why he was concerned about those documents with regard to  and also never suggested in any of any event ricks put forth any information or evidence that he refused to be engaging in a lock illegal activities again that was something that was never litigated in any point not only did him and or to change dramatically his legal theory but he also added in a completely new fact which was that he'd refuse to engage in illegal activity at something we never saw at any point in the case in some there's simply were no no genuine workforce but i'm going to tell you who races of the individuals for whom there exists no record of discipline and this is a key issue for us because the discretion of the the supervisor in making a record or not making a record is a key portion of this case we've got that but that's why council saying he gave you everything because he identified individuals for whom no corrective action was reflected in their file and then at the p m k with your action with the deposition he gave you individuals who received corrective action see put together that should be the whole workforce that and that's key your honor receiving a corrective action and having it stay in your in your file are two very different things and this this is been in the language that was parsed throughout this entire thing is they will lay out plenty of of corrective actions but only some of them make them into the files and if we look at the ones that go back and make it into the permanent records that are stamped received at headquarters it dwarfs the african american briefing and this is this is key the parsing of this language somebody can receive a corrective action i'm going to write it up but then i'm going to throw it away and then what stays in the file and becomes the basis for adverse action and very briefly on adverse action or five know your honor we got a simple statement of the zero are the only people for whom there is no record of a corrective action in their file as opposed to give me the demographics so that we can law i'm sorry not the ones who received corrective actions but they didn't stay in the files and that's the key if you receive a corrective action but it doesn't remain in the file that's the subjective type of  discrimination that's particularly nvidia's and that and we've demonstrated in the record that that this is the syllabi have that type of discretion given to these people and that's and it's articulated in the words of mark  he was suspended and there's there's testimony as to what that suspension does on his ability to transfer and promote thank number of people in the unit by race who did receive written warnings would treat thrown away yes and there's absolutely no evidence for that in the records anywhere about this distinction between whether it was in lakeland or not all of the corrective actions were straight out of these employees personnel files you can search anywhere in the record not gonna find anything that suggests that there's some difference that's just something that is completely out of left field in an opposition a summary judgment with no testimony or ev warnings were thrown away correct there's absolutely no evidence in this record about any of that there was no mr the supervisors were deposed that was never even asked let alone any evidence being being brought forward about some distinction between having a file stamp saying lakeland all these corrective actions came directly from the personnel files or orders like me lately of the corporate office so whether or not someone can we have no idea what the circumstances of whether someone stamped it or honor because we only understood that difference to be there and necessary based on the parsed language of the response today in iraq the jury and then we looked at the documents themselves and some of the documents bear stamps go that they are received at corporate headquarters and that that and we we went through and we went through every single one of these thousands of pages of documents and we identified the ones that went back to headquarters and the ones that went back to had headquarters only almost only african americans ones go back to headquarters and that that that raises a question of why why is that is that at the end of discovery afterwards when when the defense doesn't produce the documents until the very end of the case and admittedly i have to can go back and ask questions of witnesses and then f information when you parse an answer and say in answer to win in iraq or torie and say the records that these individuals have no records of of corrective actions as opposed to here's a drum demographics these people these people never received a a written warning a final warning it's such a what why does it have to be parsed in that fashion that then at that that's when the question arises your honor is because if you post it in that fashion then there's a reason why it's being parsed in that fashion it's because there's an inference to be drawn here if you're going to parse it in that fashion it's because there's something else there it's because the discretion that that there is that testimony in the record of the discretion of the supervisors whether to include those corrective actions in the files or not because they form a