police internal investigation of moore and his formal written warning if i may suggest your honour's the miss tenting impaction colors everything in this case the reality is this is the central fact of the well let me stop you just a minute i want to make sure on this timeline it seems to me that we had a rd marc market walk school or that was prior to april and we had a th market walk score the unsuccessful four score was after april  right that that's correct your honor and so we had the st market walk score in october the nd marginals score after that the rd score unsuccessful after that and then we have these vamps that happen in april and then we had the th market walk score right and then he was put on the p ip that's correct although the april market want has not been supplied is evidence it's not part of the record and we haven't seen that so that's that's a disputed issue as to whether or not the market won't score even outlive your honor all right so the  rd score was before april and the th score was after april went to up your honor ok i just want to make sure as long as we were on timeline tell his t m's to quit and then in july they had the th marginal school which was th walk which was a marginal score right at that's correct your honor all right absence of lawson's turning him in and defying his missed an indirect so reasonable jury could find a lot since objection to the practice at the very least tipped the scale for more even if there were some problems with lawson's performance standard your honor we think that the plaintiffs prevails under the application of either standard but the argument has been made that we waive section eleven o two five on not expressly arguing it in the court below difficulty with that position is that if the employer had known that that was the standard the employer could have ensured that it this way that the judge didn't have let that stand it doesn't have the opportunity to whether whether the standard for determination was clear and convincing or pretext clint convincing evidence that the action would have been taken anyway it's the same evidence apply so won't require the should be and given the california cases your honor it's it's it's it's very clear that the standard is based upon the california cases is the they they were at the california the california law says you apply the law in effect at the time of the review at the time of the right view they had eleven o california law the california legislature made it very clear that they intended to apply heightened standard for the defense of whistleblower claims that we've laid out the legislative history in our papers and so the then with all this stuff that you've given me why haven't you asked me to send this over the california supreme court standard and i'm saying it seems to me this is a great question for the california supreme court and i don't know why you didn't ask me to do it by your honor that that may be an option to consider  we believe that based upon the record the court and the nice summary judgment no matter which standard is applied where that is were quite that it but just a minute that can't be the answer because if i did not have based on whatever standards applied what's the district court going to apply for a standard easier if we sent over the california supreme court and they told us what to do would know that it's interesting your position your honor that that may be an option and i don't want to preclude that  now so even if we do except the argument that the government apply that the court applied the wrong standard why isn't that harmless well it's possible your honor because the burden chipping standard is it's much more difficult for an employer under the retaliations statute it's possible that there could be a set of facts where the plaintiffs would would unable to prevail under mcdonnell douglas that may be differing outcomes depending upon which standard is applied again we believe that the facts are so egregious in this case what was the evidence in the record that the people who were responsible for the terminations knew that your client was the one who reported the  he wasn't the only one who fed them there was there was no one who said it so directly in confrontational way as did mr lawson and mr moore reacted most significantly in a very agitated fashion because mr lawson shorten told the stop you didn't want to hear it and for matt the testimony the record is your honor that from that point forward the relationship instantaneously deteriorated there was a sea change and it was mr lobsang lawson's perception at that point that mr moore had reacted we were acting very negative to negatively to him and then he proceeded within two weeks thereafter to put him on a performance improvement plan that your is upon the leadership by clear and convincing evidence that's correct your honor and that they cannot meet this person under these facts at the same time the wrongdoer was being investigated he lied to investigators it was determined that he lied and and and interview on this was in june july in the time on the time frame and then he was allowed to continue to supervise loss and with no oversight and loss was terminated in the most significantly further your honor the p belatedly gave more of a formal written warning telling him to refrain from penalizing t m s in the market walks in for not in standing which is exactly what happened in this case may further south that you only have the i'm having a tough time with that argument i mean it's a great way to start out but i'm looking at the facts and i'm having a tough time with it i have a rd score which was unsuccessful before reports that to the ethics portal and shortly thereafter and i'm told now based on this timeline the th he speaks directly to moore and tells him he's not going to do it and that's not the way to do it time he goes from he goes from exceptional that i'm successful on his rd score and then that's four score doesn't change at all and he's put on a pair of after he knows more his supervisor knows he's where i hear you arguing your point of view on a summary judgment of the facts as you want them to be made you're not looking at the facts as i have to take them on summary judgment and then making argument you go back to your general story that you'd like to make and that's why i think that's a tough argument you're making a may be taking the facts as alleged by him which my colleague has put out there would be a better way let me change let me change the let me change the emphasis here i'm having a tough time why we should apply donald douglas to california after eleven o two six it seems to me that having added level no two six in acted that that's a different standard than the mcdonnell douglas and i don't know why the district court applied it and therefore raising it on appeal finding it being a question of law as to what ought to be applied and what ought not to be applied i'm i having a tough time understanding why i should find out which standard i should apply you know there is no u just a minute just a minute i'm reading the statute i hear what you said and i heard your argument and i looked at it and i said where do i find any language in the level no two point clearly walks through the what is going to be a good thing one to be a good thing for me since i read the language you know find anything like that in there to send this over to the california supreme court and find out if that's really the framework issues and we want that once that up is applied then the burden shifts to the employer to prove by clear and convincing evidence that the a match wants the employer employee has met his burden and the employer your is going for independent reasons the burden the standard of proof shifts to be saying that there are different analytical frameworks that apply that somebody judgment and trial terms of who has the burden of proof on these issues i thought the whole purpose of somebody's judgment uttal one minute yes your honor i just want to note that we said in our brief three petrel district court cases in california that consistently applied california labor code section eleven to two five here in convincing evidence more clarence moore was found to the been lying during during the course of the investigation the investigators concluded that he had lied get he was still allowed to supervise last and only after lawson was terminated was was a letter issue disciplining him in telling him he could not continue to miss grade or to penalize his territory managers based upon whether they missed  it still with the company lawson was fired we think the jury would find those facts to be very significant and strongly suggested the pretexting revelatory intent based upon this fact pattern based upon the highly thirty am tomorrow morning this car for this