ok so let me ask you off the corporate ladder your brief doesn't address any of the corporate ladder to h r either in the complaint or the opposition to the summary judgment motion sorry so motion can you tell me what the record shows that she told i was used to she took these complaints i was trying to find in the record what she says she told each of these people what did she tell them he told them that number way now we can hear you pretty well judge you want to try again so judge it looks like your connection is frozen the best thing to do might be for you to leave the meeting and reconnect why don't we wait marshall of the yes we can hear you but your video or just marshall i'm sorry please continue oh that's so that's ok your question i was trying to figure out what your client complained to to the people on these two dates safety policy that decision followed a detailed independent investigation by flat safety personnel and was consistent with the status or discipline established by the policy that ms brewer violated and with determination of ten complaining about f m l a violation or complaining about gender discrimination for reporting them and the jury found he wasn't fired those basins sexy retaliation claim that all your are in my mind it does very much i did it well i wanted to give credence to the specifics of the jury's verdict which were findings that she was not fired on account of her gender or unaccount you the implication of the jury's verdict here is exactly as i just described it which is brewer who was terminated for violating violating the safety policy and not for any other reason that's not with us not literally what the verdict says can you at age yes your honor so there were there were there were two incidents of alleged protective reporting at busy at the summary judgment stage that was the april t identified in a district court as a basis for retaliation claim mr a didn't mention those statements international with her gender discrimination claim but did not preserve arguments that those statements constitute constituted protected whistleblower activities and under the codes case and the miranda roofing case we don't think she's properly preserved those arguments so to address your questions are going back to the beginning it was the april and june reporting that were before the district court judge on summary judgment specifically why why were either of those  i don't believe they were your honor and so starting with the april i think is worth taking each one in turn if i may starting with the april conversations with aaron mcdaniel  own testimony reflects that she was reaching out to ms me down you know regarding complaints and what in the record appears to be gossip among other m hourly employees and she was expressing concern for mr houghton not complaining about reasonably perceived illegal activities and was seeking this mcdaniels advice on how to handle the hourly employees concerns so there's nothing on that record supports a finding that she actually or reasonably believed she was reporting illegal activities and without them getting it all the details i take it that their concern was there might be some romantic escapades going on between m merritt and others that seems to be the case your honor ultimately kept anderson investigated that incident based on the hourly employees reporting which was all that she was aware of at the time and he determined that there ha at least with respect to any of the other employees that is anybody other than the employee who was part of that romantic relationship no claim of that here so and we've cited know it's case which reflects the idea of these kind of interpersonal matters are not the kind of violations of law the reporting of wish can support a whistleblower claim so turn to the other reports and tell counsel has emphasized her statement that she prefers working with male employees and she was tracking ms brous m l a leave neither of those statements though reporting those does not rise to the legal standard for demonstrating a protective reporting by mr is on account ms miranda stated that mr was engaging in quote unquote f n l a misuse and was threatening to report her for that reporting and employees while lessons leave policies is part of the supervisor's job responsibilities not a reasonably perceived violation of law brewer argues in our brief that she felt deterred that is on appeal she argued that she felt deterred from taking a family leave as a result of mr miranda statements that argument is not supported by any evidence in the record and to the contrary is the lie by the evidence including misters own testimony that  she was never prevented or deterred from taking extensive f n l you leave over the course of many years as it relates to the evidence and this miranda had stated a preference for working with male employees those under the reasonable belief standard she might have believed that mr miranda statements were illegal she's not required to be a lawyer and so on she said yeah no it's for that proposition but this court and the california courts have held a reasonable  alleged suspicion of illegal activity is measured by an objective standard and so present a question of law not a trial question of fact and the cases we've cited are british like pat harris carter all reflect that the kind of interpersonal compliance that mr gore was raising falls short of the legal standard for protected activity there's a further point here though which is that we focus on the objective reasonableness because that's the issue has brewer focused on the cases also reflect that it has to be a subjective belief in a legal activity i reviewed the record and i have to say i don't think there was any evidence where she said affirmative i believed i was reporting illegal activity and to the contrary her claims that she subjectively believe she was reporting illegal activity are belied by the fact that she never followed through with slipperiness formal  know let's wait for the phone connection and so judge on your phone there should be a button that says join audio counsel part of your problem here is you have three judges you're not teenagers r judge marshall can do you see the joint audio button on your phone just marshall looks like your phone has audio now do you hear us judge marshall can you hear  to help her with both in person and later by e mail was in the in the summary judgment record it was not identified in summary judgment as a basis for whistleblower protection and under coombs and miranda roofing i think that's an important factor but the other thing that i want to emphasize here is that counsel has noted that mr henderson said you know you need to talk to somebody about my head i'm not equipped to handle that and i'm hesitant to go here because as i think the court has recognized under the case law the trial evidence is not relevant to the summary judgment but it is something that has brought him in here and we know based on the trial evidence those specific a part of the summary judgment record that sort of disparate treatment was part of her gender discrimination claim it was not mentioned as any of the purportedly protected reporting that was not a feature of this and that is so sure to my my time is thank you josh marshall i see my time is short so i want to run quickly through a few points here if i  hussman case usman versus toyota motor credit also falls short it was a vague or conclusory remark that didn't provide to the pre no decision and a notice of the conduct that was supposed to be investigated in order to constitute protected reporting the next piece of the puzzle here on the prima facia case is the causal link mr brewer has the burden to prove that the allegedly retaliatory motive of individuals was the but for cause for the decision to terminate and the problem here is that most of the people that she's identified played no role in the investigation that led to her terminations and in fact it's important to notice when applying the bud for a standard that mr hines who had no less retaliatory motive managed investigation kids conclusions rested not just on the reporting of jennifer miranda but also on the reporting as well as mr hines interview of other palletized or operators and his inspection of the equipment he then sent his reporting on to robert toucher to make the decision to terminate is approved by corporate headquarters in denver there is no way that she could have met the bus for standard on this record and finally iran is as my time runs out i could just indulge a little bit of extra time i'd like to talk about pretext i think the evidence is very clear that look right now had a standing zero tolerance policy there's undisputed evidence that she violated it and that she was terminated in the same way that ten other employees were terminated in the priest proceeding three years now thank you counsel thanks to both counsel this case is submitted we appreciate your patience during your when i was back to see you before is that the supreme court used to recess for lunch at one o'clock and stop the argument wherever coun and then resume at two when he came back from lunch so you've experienced the virtual equivalent of of a former supreme court argument and we thank you both for your arguments your briefs cases submitted and your hon