[00:00:04] Speaker 05: May proceed counsel Good morning your honors may it please the court. [00:00:09] Speaker 05: I'm John learning. [00:00:10] Speaker 05: I'm representing the plaintiff and appellant Jennifer to sign At the outset I want to know if I had asked for five minutes of rebuttal time, so I'll try to adhere to that going forward However we're here today simply because the district court wrongly granted summary judgment against mrs. DeSign on her claims for employment discrimination and [00:00:35] Speaker 05: The court did so based upon mistakes in law, mistakes in fact, misapplication of the law to the evidence, and so the trial court's decision should be reversed. [00:00:46] Speaker 05: At the outset, I think one of the things that's most striking about the district court's opinion is the extent to which the court was reluctant to even acknowledge the appropriate standard for decision. [00:00:58] Speaker 05: The case law is clear, federal and California law. [00:01:01] Speaker 05: that the plaintiff's burden of proof in contesting a motion for summary judgment in connection with claims for employment discrimination is minimal one. [00:01:11] Speaker 05: And in fact, a plaintiff need only produce very little evidence to support its claims and avoid a grant of summary judgment. [00:01:20] Speaker 05: Even so, here, the trial court hardly acknowledged that standard of decision, stating in its opinion only that plaintiff's design argued for it. [00:01:31] Speaker 05: the court itself never expressly admitted that standard controlled. [00:01:36] Speaker 05: And I think as we look at the decision rendered by the district court, it's clear that its findings did not truly adhere to that standard. [00:01:46] Speaker 02: Well, just to start working through these claims as to that prima facie showing, [00:01:53] Speaker 02: What evidence did Ms. [00:01:58] Speaker 02: Yassin bring forward that the employer knew about her disability? [00:02:04] Speaker 02: In fact, that's certainly where I was headed, so thank you for the question. [00:02:08] Speaker 05: Leaving aside for now the question of imputation of knowledge, I'll turn to that in a second. [00:02:18] Speaker 05: We have pointed out to the evidence and the testimony of Novartis's chief investigator, a woman by the name of Susan Pierre, who undertook all nine investigations of Mrs. Usain in this matter, who testified that, well, her regular custom and practice was to review any prior investigation reports that would have involved the subject, Mrs. Usain. [00:02:40] Speaker 05: So we know that that's what should have happened here, and that's what would have ordinarily happened here. [00:02:45] Speaker 05: We also know that the investigation reports to which you referred, the earlier investigations conducted with respect to a former supervisor, Joanne Moore, expressly referenced Mrs. DeScience suffering from lupus. [00:02:59] Speaker 05: And so that evidence alone creates an inference that Mrs. Pierre, in fact, would have and should have reviewed those reports and would have seen it during the course of those investigations and therefore had knowledge of the lupus. [00:03:13] Speaker 02: But in your deposition of Ms. [00:03:15] Speaker 02: Pierre, she says, well, that's the usual course. [00:03:19] Speaker 02: That didn't happen here. [00:03:22] Speaker 02: And she didn't have any knowledge. [00:03:25] Speaker 02: She did deny it. [00:03:26] Speaker 00: I think that's actually your strongest evidence that could come closest to the statement because doesn't that create an [00:03:43] Speaker 00: an inference that is a genuine dispute of material fact because that she's created herself, that Ms. [00:03:49] Speaker 00: Pierre's created because on the one hand her testimony is it was her practice to look at this and so that would have been when was the first investigation? [00:03:59] Speaker 05: That was 2020 your honor. [00:04:01] Speaker 00: Okay so in 2020 in her first investigation it was her general practice to review all prior [00:04:09] Speaker 00: reports and there's this twenty nineteen report that indicates that your client has lupus, right? [00:04:16] Speaker 05: Indeed, that is our argument, Your Honor. [00:04:19] Speaker 00: Okay, but then she comes back and later sort of recants that, saying, well, I had no knowledge. [00:04:28] Speaker 05: Well, what she precisely said was that she didn't recall reviewing the reports. [00:04:32] Speaker 05: And then later she says, oh, I didn't have knowledge of the lupus at all. [00:04:36] Speaker 00: Right, and so [00:04:38] Speaker 00: I think that's what is your strongest argument that Pierre, who conducted these investigations, knew of the lupus. [00:04:47] Speaker 00: So what else is there in the record that shows that she in her investigations acted with discriminatory intent toward [00:04:58] Speaker 05: I think we've gone to some length to try to detail the disparate treatment that Mrs. Yassine received during the course of these investigations. [00:05:09] Speaker 05: How she was only investigated or she was repeatedly investigated in connection with matters where other employees, other Novartis employees engaged in similar misconduct. [00:05:22] Speaker 05: But we're not subjected to investigation at all. [00:05:25] Speaker 05: I mean, one, the most blatant example may be the travel and expense reports where there were 10 different employees identified in an audit as having committed infractions. [00:05:34] Speaker 05: But of all of them, Mrs. Hussain, the loop to suffer, was the only one who was made the subject to Ms. [00:05:40] Speaker 02: Pierre's investigation. [00:05:41] Speaker 02: Mr. Morney, when we think about this similar, are we looking at just [00:05:48] Speaker 02: instance by instance, or for a comparable, aren't we supposed to look at everyone who are similar situated in Mississan, which is someone who had a longer history of compliance violations? [00:06:01] Speaker 02: Are we allowed to identify comparators just with respect to a single instance? [00:06:05] Speaker 02: Because none of the other comparators, as far as at least your review of the record shows, had these other compliance issues. [00:06:13] Speaker 05: I would argue that that's a question of fact for a jury to decide with a similarity. [00:06:20] Speaker 02: So what's the question of fact? [00:06:22] Speaker 02: Because is there evidence in the record to create a genuine issue? [00:06:27] Speaker 02: If the state of comparators is material, where is the evidence in the record to create a genuine issue as to other compliance violations by these folks who are also caught up in the travel issue? [00:06:43] Speaker 05: I would certainly have to concede, Your Honor, that, for example, the other employees identified in the trial and expense report review do not have a similar kind of compliance history. [00:06:54] Speaker 05: I would, however, say that I believe there is a question of fact to the extent that there were employees who were implicated in multiple of these investigations. [00:07:02] Speaker 05: For example, Mrs. Usain's supervisor, Mr. Blumrich, who is not similarly investigated, and in that case, [00:07:11] Speaker 05: And this is going back to the very first investigation. [00:07:16] Speaker 02: Mr. Blumrich was left, resigned before termination. [00:07:21] Speaker 02: So the claim here of disability discrimination is about the termination, not the investigation. [00:07:28] Speaker 05: I think our position, Your Honor, is that it's all part and parcel of the adverse employment actions taken against me since you signed. [00:07:34] Speaker 05: And we cite a case law to that effect, that you have to look at the totality of the circumstances and that the acts of investigation can be considered themselves as part of the adverse consequences or the adverse actions taken against you. [00:07:47] Speaker 05: And going back to this kind of comparative question, I would point out that with respect to Mr. Bloomridge, you know, [00:07:55] Speaker 05: From the very first investigation, he wasn't included with respect to the virtual Congress. [00:08:00] Speaker 05: Even though he was, one, Mrs. Usine's supervisor, and two, he himself acknowledged a misunderstanding of kind of the propriety of the actions that Mrs. Usine had undertaken. [00:08:11] Speaker 05: However, later on, when Mrs. Usine was acting in a supervisory role, she was of course implicated in the [00:08:19] Speaker 05: in the investigation and reprimanded and then ultimately terminated. [00:08:25] Speaker 02: What was the timeline of those two for us to try to understand? [00:08:29] Speaker 02: So remind me, so Mr. Blumrich, not investigated, resigns. [00:08:36] Speaker 02: Where was the investigation as to the Comparator Acts between Mr. Blumerich and Mrs. Usain relative to Mr. Blumerich's resignation? [00:08:44] Speaker 05: So the initial investigation was undertaken in 2020. [00:08:47] Speaker 05: That's one where Mr. Blumerich is not included, but Mrs. Usain is. [00:08:51] Speaker 05: In 2021, there was a second round of investigations where Mrs. Usine is investigated. [00:08:57] Speaker 05: In that instance, Mr. Blumeridge was folded in with a portion of the claims. [00:09:03] Speaker 05: And then my understanding is it was in early 2022 that Mr. Blumeridge resigned from the company prior to the termination of Mrs. Usine and the internal review committee. [00:09:14] Speaker 02: And he was disciplined too. [00:09:16] Speaker 05: I think there was, in connection with the reports, by the time the IRC, the Internal Review Committee met, he was already gone from the company, so he really did not suffer any kind of substantial consequence other than there may have been some coaching that was done in connection with the second round of investigations. [00:09:35] Speaker 00: So who instigates these investigations? [00:09:39] Speaker 00: I understand Susan Pierre performed all the investigations, but who would [00:09:44] Speaker 00: instigate them, start the investigation? [00:09:47] Speaker 05: Ostensibly, it was this compliance department. [00:09:50] Speaker 05: I believe it was a regulatory compliance department within Novartis. [00:09:53] Speaker 05: There was a gentleman, Daniel Bonilla, who was, I think, responsible for the overwhelming majority of the initial reports. [00:10:01] Speaker 05: And so that's essentially where they stemmed from. [00:10:05] Speaker 05: But again, to the extent that, you know, Mrs. Pierre was involved in these investigations, she had the opportunity and the ability [00:10:12] Speaker 05: as she did in other cases to expand the scope of the investigation to include others and did not. [00:10:17] Speaker 05: We believe that's an indication of disparate impact, disparate treatment, and discriminatory intent and motive. [00:10:26] Speaker 05: And all this goes back to this issue of kind of the appropriate standard, the minimum burden, and the reasons why the courts have adopted that standard. [00:10:35] Speaker 05: We think that's clear. [00:10:36] Speaker 00: All right. [00:10:36] Speaker 00: So I know you want to say five minutes, but let's assume that the district court erred in finding there was no prima facie case. [00:10:47] Speaker 00: Let's assume there's a prima facie case. [00:10:50] Speaker 00: Haven't the defendants come up with legitimate non-discriminatory reasons sufficient to defeat the prima facie case? [00:10:59] Speaker 05: They have articulated a reason for [00:11:02] Speaker 05: a non-discriminatory reason for Mrs. Usain's determination. [00:11:05] Speaker 05: True. [00:11:05] Speaker 00: We've acknowledged that. [00:11:07] Speaker 00: And you would argue that it's pretext. [00:11:08] Speaker 05: Pretext. [00:11:09] Speaker 05: And there's ample evidence of pretext. [00:11:11] Speaker 05: And I'm sorry, I apologize. [00:11:12] Speaker 05: I don't mean to speak over you. [00:11:14] Speaker 00: That's my question. [00:11:15] Speaker 00: Let's leap to pretext. [00:11:16] Speaker 05: Okay. [00:11:17] Speaker 05: So here again, we believe the district court was off-base in its analysis. [00:11:22] Speaker 05: We think the district court took a very myopic view of the evidence. [00:11:25] Speaker 05: And really just honed in in this series of investigative reports that were prepared, I think, mostly by Mr. Bonilla, but that concerned each of the assigned investigations. [00:11:36] Speaker 05: And 201, those investigation reports said, well, these aren't significant matters. [00:11:42] Speaker 05: In many of the cases, they said there's not even a need for an investigation at all. [00:11:46] Speaker 02: But that wasn't the last word on those investigations. [00:11:49] Speaker 05: Well, that depends on how you look at it, because those investigative reports were modified even after the peer report was submitted. [00:11:57] Speaker 05: And that's the evidence that we've provided. [00:12:01] Speaker 02: But when they said they're not significant, I'm also looking for some context here in terms of the process. [00:12:07] Speaker 02: When they said they're not significant, that was before they've done any investigation. [00:12:09] Speaker 02: That was just the initiating process. [00:12:14] Speaker 02: Can an employer not, after actually having done the investigation, which I would hope is generally a good practice, change its determination? [00:12:25] Speaker 05: Well, it could, and it did. [00:12:26] Speaker 05: And it did change the reports after the investigation. [00:12:29] Speaker 05: And even in changing the reports, it still said that the matters weren't significant. [00:12:33] Speaker 05: And the other point I'd raise here, John, even beyond the reports themselves, which weren't simply intake forms. [00:12:39] Speaker 05: there was other evidence of discrepancies between Novartis' assertion that Mrs. Yassine exposed the company to significant and unnecessary risk in the facts of the investigations themselves. [00:12:51] Speaker 02: But what are we supposed to do with the collective judgment that they make, right? [00:12:55] Speaker 02: So any individual, and maybe the conclusion is not significant, but if there's a pattern, and we've talked a little bit about comparators, why would that be [00:13:07] Speaker 02: What's the pretext in that pattern, given the number of investigations that are issued? [00:13:13] Speaker 05: It shows that Mrs. Usain is repeatedly targeted for matters that, by its own admission, Novartis deemed to be not significant, deemed to be technical in nature, deemed to not expose the company to any significant risk, and so that speaks to pretext. [00:13:30] Speaker 05: Notwithstanding all the other kind of factors the temporal proximity the disparate treatment, and so that's really that's really where we believe the The pretext argument holds up and in fact again under the standard of minimal burden which also applies to the pretext argument and very little evidence We believe that that burden is absolutely been satisfied All right. [00:13:52] Speaker 00: Thank you counsel. [00:13:53] Speaker 00: You've got some time left [00:14:01] Speaker 01: May it please the Court, Your Honors. [00:14:02] Speaker 01: Scott McIntyre, on behalf of the Appellees, Judge Kenley Teokato properly granted summary judgment in this straightforward employment discrimination case, where my clients first coached the plaintiff. [00:14:16] Speaker 01: and only terminated her after, as Judge Johnstone had indicated, after repeated violations over a two-year period. [00:14:22] Speaker 01: She was first counseled. [00:14:24] Speaker 01: She acknowledged, Your Honors, that she was an employee at will who could be terminated for merely not performing up to expectations. [00:14:32] Speaker 01: That's ER 1435. [00:14:35] Speaker 01: She certainly did not perform up to expectations. [00:14:38] Speaker 01: And she acknowledged, Your Honor, at her deposition, that not even she believed that there was discriminatory animus here based on the protected statuses at issue, disability, sex, age. [00:14:50] Speaker 01: She acknowledged that at her deposition at 1437. [00:14:54] Speaker 01: But she's asking this court to impanel a jury to speculate to say, well, because I mentioned Lupus once [00:15:01] Speaker 01: it must have been because of that. [00:15:03] Speaker 02: Well, on that, picking up on Judge Wardlaw's line of questioning to your friend, why hasn't Ms. [00:15:12] Speaker 02: Pierre essentially created a genuine issue of material fact with this question of her knowledge as to the prima facie case? [00:15:21] Speaker 01: Yes, Your Honor, thank you for that question. [00:15:23] Speaker 01: She has not created a genuine issue of material fact because she specifically requested that investigation file, which Lupus evidently was just mentioned in passing. [00:15:35] Speaker 01: She did not receive it. [00:15:36] Speaker 01: She swore under oath she did not receive it. [00:15:38] Speaker 00: I thought she swore that she didn't recall receiving it. [00:15:42] Speaker 01: She did, well she submitted a declaration and testified at her deposition saying she did not have any knowledge of it. [00:15:50] Speaker 00: She didn't say she for a fact did not receive it. [00:15:53] Speaker 01: Well, she didn't look at it if she received it, Your Honor. [00:15:57] Speaker 00: Let's be clear on what she actually said. [00:16:00] Speaker 01: Yes, she had zero knowledge of lupus. [00:16:03] Speaker 01: And I believe there was testimony at the deposition that she had requested it. [00:16:08] Speaker 01: She did not look at it. [00:16:11] Speaker 01: More to the point, here's what plaintiff said. [00:16:14] Speaker 01: This concern to Ms. [00:16:15] Speaker 01: Moore, who was a previous supervisor, at 1447 of her deposition, ER 1447, the plaintiff admitted Ms. [00:16:23] Speaker 01: Moore has nothing to do with this case. [00:16:25] Speaker 01: So let's take a step back on this knowledge element and think about what this case isn't. [00:16:30] Speaker 01: This is not a case where the plaintiff has alleged, I was requesting time off from Lupus. [00:16:35] Speaker 01: I need an accommodation. [00:16:37] Speaker 01: The plaintiff specifically testified under oath, that's not this case. [00:16:41] Speaker 00: Well, so what I understand with Ms. [00:16:45] Speaker 00: Moore, Ms. [00:16:46] Speaker 00: Moore was her supervisor and was concerned that she was upgrading her flights and Ms. [00:16:55] Speaker 00: Yassians told her that she had lupus and that's why she needed to have a higher, and flights over five hours, a higher, you know, better seating so that she could stretch out. [00:17:11] Speaker 01: This Pierre knew nothing of that your honor and the question that came up about who initiated these mr. Bonilla anyone can initiate a complaint the Person who raised these multiple complaints seven different allegations over to your period didn't know anything about this Okay, so who was that person? [00:17:31] Speaker 01: Well, it's various people. [00:17:33] Speaker 01: There's all sorts of different individuals. [00:17:35] Speaker 01: Mr. Bonilla was the first one and there were numerous [00:17:41] Speaker 01: Different individuals, Mr. Cinco, I believe, raised issues. [00:17:50] Speaker 01: Anyone under policy was obligated to raise compliance issues when they noticed that someone had committed compliance violations. [00:18:00] Speaker 01: So certainly Mr. Meneo, Jason Merzla, head of compliance, reported the T&E. [00:18:08] Speaker 01: That's one example. [00:18:11] Speaker 01: The forms were submitted to Your Honor's question. [00:18:14] Speaker 01: It's merely at the initial outset when a complaint is made. [00:18:19] Speaker 01: Those people who submitted the forms were not involved in the investigation, and that's intentional. [00:18:24] Speaker 01: Ms. [00:18:24] Speaker 01: Pierre is an investigator. [00:18:26] Speaker 01: She did the investigation, and Ms. [00:18:28] Speaker 01: Pierre was not involved in the decision. [00:18:30] Speaker 01: There was an internal review committee initiated, which an HR representative, Steven Grauberger, who submitted the declaration in the record, [00:18:38] Speaker 01: Mr. Theodore Sheridan submitted a declaration in the record. [00:18:41] Speaker 01: They looked at Ms. [00:18:43] Speaker 01: Pierre's report. [00:18:44] Speaker 01: So it was even further insulated from the person who complained. [00:18:47] Speaker 01: So there's a complaint, then there's an investigation by professional investigators like Ms. [00:18:52] Speaker 01: Pierre, then there's an internal review committee that considers it. [00:18:56] Speaker 01: If I may, Judge, I'd like to go to her deposition when I ask her about who she mentioned this lupus to. [00:19:03] Speaker 01: And so Ms. [00:19:04] Speaker 01: Moore didn't come up at her deposition. [00:19:06] Speaker 01: So this is ER 1445. [00:19:10] Speaker 01: Well, let me explain this. [00:19:12] Speaker 01: So I ask her, you don't have any facts indicating that you were substantially limited in your ability to work during the time you worked at defendants, correct? [00:19:20] Speaker 01: Correct. [00:19:21] Speaker 01: That's 1445. [00:19:23] Speaker 01: So this is unlike the Alejandro case in the brief that my friend relies on where someone requests an accommodation and argues that I requested time off or I requested not working at night, something to that effect because of a disability. [00:19:38] Speaker 01: At best, there's simply a reference to lupus. [00:19:42] Speaker 01: Think about it in the world of work. [00:19:43] Speaker 01: How many times a day does an employee mention a medical condition? [00:19:48] Speaker 01: Knowledge alone isn't enough. [00:19:50] Speaker 01: If that were the case, we would have a jury trial. [00:19:52] Speaker 01: Every time an employee says, I was heard at work. [00:19:55] Speaker 00: Right. [00:19:55] Speaker 00: But, you know, I've seen a lot of these cases and usually there's not some re-judgment granted that says there's no prima facie case. [00:20:05] Speaker 00: Usually we're, there's, you know, this is atypical in that sense which is why I'm trying to understand the legitimate nondiscriminatory reasons and I would [00:20:19] Speaker 00: One thing I would like to understand is how significant are these compliance violations? [00:20:29] Speaker 00: Because from a lay person not understanding the company or client, how significant are these kinds of things to your company? [00:20:39] Speaker 00: What's in the record about that? [00:20:41] Speaker 01: Yes, your honor. [00:20:42] Speaker 01: What's in the record? [00:20:42] Speaker 01: Very good. [00:20:43] Speaker 01: I appreciate the question. [00:20:44] Speaker 01: She was informed at her termination by Mr. Grauberger, who was on the committee, the IRC, who actually did make the decision. [00:20:52] Speaker 01: He met with her and said, this is serious. [00:20:56] Speaker 01: I don't want to misquote the exact language, but he said this was substantially serious. [00:21:00] Speaker 01: And she had talked about a consent decree. [00:21:03] Speaker 01: These are the kind of compliance issues that a highly regulated company, pharmaceutical company involving FDA regulations, she was counseled on that from the beginning by Ms. [00:21:12] Speaker 01: Pierre. [00:21:12] Speaker 01: Slow down. [00:21:14] Speaker 01: Take your time. [00:21:15] Speaker 01: We take compliance seriously. [00:21:17] Speaker 01: And to Judge Johnstone's point, you can't look at each one of these in isolation because a company like Novartis or any employer [00:21:24] Speaker 01: especially a highly regulated employer dealing with FDA regulations has the right to avoid an external issue. [00:21:31] Speaker 01: The whole goal of compliance is to avoid, number one, to make sure patients are not injured, but number two, to also avoid a federal investigation to avoid a fine. [00:21:43] Speaker 02: But if these various compliance issues, all of them kind of independently, [00:21:50] Speaker 02: uh... were so significant what is that one more power to the lack of comparators or the comparators who weren't investigated well collectively honor keep in mind that the first [00:22:03] Speaker 01: Two compliance issues, she was coached. [00:22:06] Speaker 01: Slow down. [00:22:07] Speaker 01: She was not terminated until the five later, after being coached, after being counseled to take compliance more seriously, take a conservative approach to compliance. [00:22:18] Speaker 01: Then she literally backdated contracts. [00:22:21] Speaker 01: They became more serious. [00:22:22] Speaker 01: So let's think about what she actually did. [00:22:24] Speaker 01: She was responsible for going out and getting positions as consultants. [00:22:29] Speaker 01: And these physicians literally did work before the contract was in place. [00:22:33] Speaker 01: That was a major compliance violation. [00:22:35] Speaker 01: And what's more, she backdated the contract. [00:22:38] Speaker 01: She acknowledged this to Ms. [00:22:39] Speaker 01: Pierre and at her deposition. [00:22:41] Speaker 01: This is not something that's minor. [00:22:43] Speaker 01: This is something that's frankly dishonest. [00:22:46] Speaker 01: And she also committed an ethics violation during Ms. [00:22:49] Speaker 01: Pierre's investigation. [00:22:51] Speaker 01: Ms. [00:22:51] Speaker 01: Pierre, she had a duty to disclose emails with the physician in question. [00:22:56] Speaker 01: She did not disclose an email showing that she'd actually had personal contact with the physician. [00:23:02] Speaker 01: She was trying to blame Ms. [00:23:04] Speaker 01: Linus, her subordinate. [00:23:05] Speaker 01: Black letter case law says that subordinates and supervisors are not similarly situated. [00:23:10] Speaker 01: That being said, [00:23:12] Speaker 01: She was previously counseled, you need to take accountability. [00:23:16] Speaker 01: This was the director of marketing. [00:23:17] Speaker 01: This was not a lower-level employee. [00:23:19] Speaker 01: This was a high-level manager who worked as a pharmaceutical rep for many, many years, did not have issues, but then she moved into the marketing role, judges, in 2020. [00:23:28] Speaker 01: That's when she started having the issues. [00:23:31] Speaker 01: And she was counseled to take it slow, take a conservative approach, [00:23:35] Speaker 01: And she didn't do it. [00:23:37] Speaker 01: And she had the ethics violation, which makes her different than anybody else. [00:23:41] Speaker 02: I'm trying to square up the various intake forms with that. [00:23:44] Speaker 02: But were these later violations begun as significant, were they said? [00:23:53] Speaker 01: Yes, Your Honor. [00:23:54] Speaker 01: The timeline was these later violations occurred. [00:23:58] Speaker 01: This was over a two-year period, Your Honor. [00:24:00] Speaker 01: And these later violations occurred in 2021. [00:24:04] Speaker 01: and were investigated. [00:24:07] Speaker 02: So where is the intake form that says at the outset that this is a big deal, that this is significant? [00:24:14] Speaker 01: Well, remember, Your Honor, the people who complain, any employee at the company can submit an intake form. [00:24:20] Speaker 01: So the intake form is merely talking about an opinion of someone in terms of external patient health. [00:24:28] Speaker 01: Immediate patient health would be sort of the number one issue. [00:24:34] Speaker 01: Something involving that so the intake forms just like anything else. [00:24:39] Speaker 01: a forum, even if there is an inconsistency, which we're not saying there is, that goes to the body of case law saying even a decision that's unwise, the business judgment rule saying making a mistake. [00:24:53] Speaker 01: But the opinion of someone who initiates the investigation into an issue cannot control before the investigation starts and before the decision makers make the decision. [00:25:06] Speaker 01: And I will come back to say that it's a collective taking into account the history of compliance violations over the seven-year period. [00:25:14] Speaker 01: And there's nothing in the record saying, one, if something happened only one time, that would result in termination. [00:25:21] Speaker 01: That's not what we're arguing here. [00:25:22] Speaker 01: It's the collective over a two-year period. [00:25:25] Speaker 01: And this is not someone who the company was eager [00:25:27] Speaker 00: Determinate you know they you know they coached over the two-year period so it was Interesting she worked there for 20 years. [00:25:35] Speaker 00: Yes, your honor, and there were no problems until 2020 when she was moved into marketing and then the problems seem to Suddenly appear in the marketing area now when she was in sales for 20 years. [00:25:54] Speaker 00: There was nothing [00:25:55] Speaker 01: There's nothing worse. [00:25:56] Speaker 00: I actually had a lot of awards and recognition, right? [00:25:59] Speaker 01: That's correct, Your Honor. [00:26:00] Speaker 01: We're not the history of her in previous jobs is frankly irrelevant to marketing that she. [00:26:08] Speaker 00: Was it also coincided with COVID? [00:26:12] Speaker 00: Is there any evidence in the record that? [00:26:15] Speaker 00: She that her lupus was the reason that she wasn't as [00:26:23] Speaker 00: attentive to detail or complying fully with some of these compliance requirements No, no your honor. [00:26:35] Speaker 01: There is zero evidence of that and in fact I asked her that question whether You know she believed that Anyone had taken action based on any sort of condition the answer was no to that and [00:26:50] Speaker 01: And that applies to age, sex. [00:26:53] Speaker 01: If you look at the complaint, she makes broad allegations that frankly just weren't backed up by the deposition. [00:27:00] Speaker 01: And Judge Kinley Cato granted the motion to dismiss based on, in part, the reason that she simply said she didn't believe anybody had any animus here. [00:27:12] Speaker 01: She didn't view herself as disabled, as needing an accommodation. [00:27:15] Speaker 01: I literally asked her if she was substantially limited in working. [00:27:19] Speaker 01: No, the answer is straightforward, no. [00:27:22] Speaker 01: And she found employment after this termination, hadn't requested an accommodation in the new job. [00:27:27] Speaker 01: So that's why I say, unlike Alejandro and Gemini and Avila that were cited, [00:27:36] Speaker 01: There was zero evidence of the employee saying, look, I can't do this marketing job. [00:27:42] Speaker 01: I need some assistance. [00:27:43] Speaker 01: Or I need X or Y. That's not this case. [00:27:46] Speaker 01: There are many of those cases. [00:27:48] Speaker 01: I defend those. [00:27:50] Speaker 01: Those are difficult cases. [00:27:51] Speaker 01: This is not that difficult case where you have an employee saying, well, my lupus is preventing me from doing this. [00:27:58] Speaker 01: It's not the case. [00:28:00] Speaker 01: And Avia involved somebody mentioning an actual qualifying disability. [00:28:05] Speaker 01: And I will point out that, [00:28:06] Speaker 01: Avia makes the point that mentioning lupus alone or any other disability is not enough any alleged disability there has to be [00:28:16] Speaker 01: something communicated that reflects that the only reasonable interpretation is they're requesting that they're suffering from a disability, something that affects major life activities. [00:28:26] Speaker 01: Mentioning lupus alone is not enough. [00:28:28] Speaker 01: And I come back to the fact somebody mentions I have a health condition, I have anything else that could account for a disability. [00:28:35] Speaker 01: As your honors know, after the Americans with Disabilities Amendments Act, [00:28:40] Speaker 01: The law has been changed a bit, but it's still very easy to qualify as a disability, as having a disability. [00:28:49] Speaker 01: So it's not mentioning the condition alone. [00:28:52] Speaker 01: You know, there has to be some effect. [00:28:53] Speaker 01: And this, she never requested time off. [00:28:55] Speaker 01: She never requested anything. [00:28:57] Speaker 01: And so all this talk about Ms. [00:28:59] Speaker 01: Pierre, if this were a different case, why didn't she mention to Ms. [00:29:02] Speaker 01: Pierre, I think this is because of my disability. [00:29:05] Speaker 01: I think Mr. Bonilla or someone is holding my disability against me. [00:29:09] Speaker 01: They didn't know. [00:29:10] Speaker 03: And she because they didn't know because she never made it relevant when I asked counsel Just make sure I understand so even if miss Pierre had some knowledge of it You're saying that really wouldn't make any difference because just mentioning that you have lupus if that's what was mentioned in the report is insufficient [00:29:26] Speaker 01: That's right, because there has to be some causation. [00:29:29] Speaker 01: There has to be some discriminatory animus. [00:29:31] Speaker 01: The disability has to substantially cause the adverse action. [00:29:36] Speaker 01: And she admitted her deposition. [00:29:39] Speaker 01: She doesn't believe that was the reason. [00:29:41] Speaker 01: And it wasn't the reason. [00:29:42] Speaker 01: And I asked her what was discussed. [00:29:45] Speaker 01: I revealed that I had lupus. [00:29:46] Speaker 01: This is the only thing that came up when I asked her your honor's question. [00:29:49] Speaker 01: I wanted to get to the bottom of this. [00:29:50] Speaker 01: She mentioned an unnamed male HR representative in 2020. [00:29:56] Speaker 01: That's the only reference to lupus she made. [00:29:58] Speaker 01: And she said, here's a quote from her. [00:30:00] Speaker 01: This is ER 1438. [00:30:01] Speaker 01: This was all because the president had mentioned this drug. [00:30:05] Speaker 01: that could, during COVID, she said it was right during COVID, that this particular drug could maybe help COVID patients. [00:30:11] Speaker 01: She heard the president mentioning that, President Trump, and she said, well, maybe Novartis has some supplies of this drug that they have saved for employees. [00:30:19] Speaker 01: That's why she mentioned it. [00:30:20] Speaker 01: I revealed, here's the answer, I revealed that I had lupus and that Novartis at the time had, were supplying generic lupus [00:30:27] Speaker 01: to large institutions, I believe. [00:30:29] Speaker 01: It was believed at the time that Plaquenil helped with COVID. [00:30:33] Speaker 01: The president at the time told people on media that Plaquenil helped patients with COVID. [00:30:37] Speaker 01: Because of that, people would go and get prescriptions of Plaquenil filled, even though they did not have lupus, which made it impossible to actually get your prescription of Plaquenil. [00:30:46] Speaker 01: So, because of that, I asked if Medvartis had, since they provided so many large quantities of Plaquenil to the community or to hospitals, [00:30:53] Speaker 01: that they reserved any for employees, and if they did, can employees have access to the medication? [00:30:58] Speaker 01: And then, on line 9 at ER 1439, I follow up and say, that's your complete answer. [00:31:04] Speaker 01: Yes. [00:31:06] Speaker 01: That is the whole sum and substance of lupus. [00:31:10] Speaker 01: That's her deposition. [00:31:11] Speaker 01: This is not a case saying, I have to work at night. [00:31:13] Speaker 01: Your Honor had a case involving somebody who had lupus who was disabled who couldn't work at night, the Kinley case. [00:31:19] Speaker 01: That's not this case, Your Honor. [00:31:21] Speaker 01: It's just not. [00:31:22] Speaker 01: This would have been a completely different case. [00:31:24] Speaker 01: We would have approached it a different way. [00:31:25] Speaker 01: The summary judgment would have been different. [00:31:27] Speaker 01: It's not a failure to accommodate case. [00:31:28] Speaker 01: It's just not. [00:31:30] Speaker 01: Looks like my time's up if there's any other questions. [00:31:41] Speaker 05: If I may, just briefly. [00:31:43] Speaker 05: I'd point out that in the original motion for summary judgment, the defendants didn't contest that Ms. [00:31:49] Speaker 05: Usain suffered from a physical disability. [00:31:52] Speaker 05: That wasn't the issue. [00:31:53] Speaker 05: And so the question here isn't whether or not her life activities back in 2020 or 21 were actually limited by her medical condition. [00:32:02] Speaker 05: In fact, under the FEHA, the Fair Employment and Housing Act in California, the definition of a physical disability encompasses conditions that are likely to lead to limitation of major activities, major life activities in the future. [00:32:18] Speaker 03: Well, do you agree with the case law that your friend mentioned about just mentioning lupus alone is not sufficient, or do you disagree with that case law? [00:32:27] Speaker 05: On principle, no. [00:32:28] Speaker 05: I think there has to be other evidence. [00:32:31] Speaker 05: You can't just simply say we told there's the evidence of discriminatory conduct, disparate treatment, the direct knowledge of her, I'm sorry, Ms. [00:32:46] Speaker 05: Pierre's direct knowledge of her condition. [00:32:48] Speaker 05: But essentially, it's really just Mrs. Usain having been singled out and targeted repeatedly within months of her having disclosed these medical conditions. [00:32:56] Speaker 05: And because it was a physical disability, per statute and per fee ha, this whole argument about whether or not she was being affected at the time is really just a red herring. [00:33:06] Speaker 02: Mr. Murray, I want to ask you a question arising from one of the [00:33:11] Speaker 02: your last lines in your opening. [00:33:13] Speaker 02: You'd said that the kind of the minimal standard of proof that applies at the prima facie stage also applies at the pretext stage. [00:33:26] Speaker 02: How do we square that with the cases that require a plaintiff to come forward with specific and substantial evidence of pretext? [00:33:35] Speaker 02: Am I missing something on what the governing [00:33:39] Speaker 04: Standard is there we have cited. [00:33:41] Speaker 04: I'm sorry in our brief case law which shows I apologize I'm looking at Bradley for example and so for example. [00:33:59] Speaker 05: I'm sorry I We had cited our main brief to the Morgan decision at 88 Cal at 4th page 69 where the court said expressly that the perlianifers require a [00:34:08] Speaker 05: to produce very little direct evidence of the employer's discriminatory intent to move past summary judgment. [00:34:16] Speaker 05: Here we believe we've done that given that we've shown direct contradictions by the employer between its various internal reports and its stated grounds for determination. [00:34:26] Speaker 05: There are direct contradictions between the testimony of witnesses in these investigations who repeatedly found that the [00:34:35] Speaker 05: alleged violations were nuanced or technical or not egregious. [00:34:40] Speaker 05: We believe that alone meets this standard of very little evidence to overcome and motion for summary judgment. [00:34:55] Speaker 00: Okay. [00:34:56] Speaker 00: Thank you very much, counsel. [00:34:58] Speaker 00: Yes, again, versus Novartis Pharmaceuticals will be submitted. [00:35:03] Speaker 00: And this session of the court is adjourned for today. [00:35:05] Speaker 00: Thank you very much, counsel. [00:35:25] Speaker 00: This court for this session stands adjourned.