[00:00:00] Speaker 00:
We are done.

[00:00:01] Speaker 00:
Thank you.

[00:00:01] Speaker 00:
The case just argued will be submitted and I will thank counsel on both sides for your very helpful arguments in this case.

[00:00:35] Speaker 00:
All right, so we'll hear argument in the last case on calendar this morning, which is 25-215, Heidi Peck versus United Parcel Service, and we will hear first from Mr. Stegelmeyer.

[00:00:56] Speaker 02:
Thank you, Your Honor.

[00:00:59] Speaker 02:
Judge Collins, Judge Lee, Judge Fitzwater.

[00:01:02] Speaker 02:
Mr. Ritter, may it please the court.

[00:01:04] Speaker 02:
My name is Corey Stegelmeyer.

[00:01:06] Speaker 02:
I represent the appellant plaintiff in this case, Heidi Peck.

[00:01:10] Speaker 02:
I'd ask to reserve two minutes of my time for rebuttal, if that's okay with the court.

[00:01:16] Speaker 02:
Today, Your Honor, we're asking the court to review this grant of summary judgment, and we'd ask the court to just reverse the grant and remand it for a trial.

[00:01:25] Speaker 02:
As the court is aware and has been mentioned earlier, that this is a de novo standard of review.

[00:01:29] Speaker 02:
The court looks at all of the evidence in the record.

[00:01:32] Speaker 02:
And the issue that we have and which we had with the district court's ruling is we believe that the evidence wasn't construed in a light most favorable to Ms.

[00:01:42] Speaker 02:
Peck as the non-moving party.

[00:01:44] Speaker 02:
And so when that evidence is construed in a light most favorable to Ms.

[00:01:49] Speaker 02:
Peck as a non-moving party, we believe that there are tribal issues of fact that require a trial in this case.

[00:01:57] Speaker 02:
And so the court's well aware of the facts of this case.

[00:02:00] Speaker 02:
Ms.

[00:02:01] Speaker 02:
Peck was employed by UPS for 17 years without ever having any discipline at all.

[00:02:08] Speaker 02:
In fact, up until the day of her termination,

[00:02:11] Speaker 02:
She had never been reprimanded, she had never been disciplined, she had never been told that she was doing something wrong.

[00:02:18] Speaker 02:
There's no record of that.

[00:02:22] Speaker 02:
She received yearly bonuses and then one day she was terminated.

[00:02:27] Speaker 02:
The person who made that determination, Mr. Emerson and his depositions in the record, Mr. Emerson stated that he

[00:02:37] Speaker 02:
decided to terminate Ms.

[00:02:39] Speaker 02:
Peck's employment based solely on one report, and that's in the record at 531.

[00:02:44] Speaker 02:
He also testified when asked why he didn't do more of an in-depth review of this, why he didn't look at her past disciplinary history, why he didn't look at her employment history, why he didn't do anything else besides... He was aware of the prior problem too, correct, at the time the decision was made?

[00:03:03] Speaker 02:
He was, but in his deposition he stated it was based solely on that one report.

[00:03:08] Speaker 02:
The second report is the only reason why he made that decision.

[00:03:12] Speaker 02:
And he was aware of the prior report.

[00:03:14] Speaker 00:
But you sort of can't unring the bell.

[00:03:16] Speaker 00:
I mean, he was personally involved in both, was clearly aware of both, was aware that, I mean, the second one was the basis for the decision, but it's in light of the prior incident.

[00:03:29] Speaker 02:
It was, Your Honor, but then he also stated that, you know, I don't look at everything.

[00:03:34] Speaker 02:
That's why we have the peer review board later.

[00:03:40] Speaker 02:
He stated under oath that my understanding was that the peer review board would look at my decision.

[00:03:46] Speaker 02:
If I made a mistake, they would fix it.

[00:03:48] Speaker 02:
So Mr. Emerson, the one who is the sole person who made the decision to terminate Ms.

[00:03:54] Speaker 02:
Peck,

[00:03:55] Speaker 02:
He wasn't convinced that he had a good reason he said you know I think I have a good reason but let's see what the peer review board says it goes to the peer review board and they say she needs to be reinstated you made a mistake put her back in her job and they decide you know we're not going to do that we're going to.

[00:04:13] Speaker 02:
Just ignore what the peer review board says despite the fact that mr. Emerson the person making that decision who making the decision to fire her Stated that he relied on the fact that the peer review board could fix any mistake he made and so I think that fact alone your honor draws into question Whether there really was a good reason to terminate miss miss pet?

[00:04:35] Speaker 02:
additionally your honor We go further into the record

[00:04:42] Speaker 02:
Ms.

[00:04:43] Speaker 02:
Pegg provided evidence of two other people who were investigated, who were also business managers, Mr. Reinhart, Mr. Floyd Reinhart, and Mr. Bradley Tolson.

[00:04:54] Speaker 02:
Now, the district court... But neither of them had two incidents.

[00:05:00] Speaker 00:
We're not sure on that.

[00:05:01] Speaker 00:
There's no... We can't speculate.

[00:05:04] Speaker 00:
That's what discovery is for.

[00:05:06] Speaker 00:
And if you weren't happy with the discovery you got, you file a motion, you either get it or you get an adverse inference or something.

[00:05:13] Speaker 00:
But we can't be saying, well, we got to look what's in the record.

[00:05:17] Speaker 00:
And looking at the record, we have comparators with one incident and Ms.

[00:05:25] Speaker 00:
Peck with two.

[00:05:27] Speaker 00:
Why isn't that, as the district court said, enough to say that they're not

[00:05:34] Speaker 00:
Valid comparators and and not similarly situated because your honor as a defendant.

[00:05:40] Speaker 02:
It's your responsibility if you want to use something in Court in the trial you have to disclose that you have to be forthcoming you have to say here it is with Mr.. Reinhart we have their attorneys can sit we asked specifically for Mr.. Reinhart's employment file and

[00:05:55] Speaker 02:
so we could see if there was more than one incident or what happened.

[00:05:59] Speaker 02:
They said, we don't have an employment file for Mr. Reinhart.

[00:06:03] Speaker 02:
When I asked Ms.

[00:06:04] Speaker 02:
Todd about... I think that's bogus.

[00:06:06] Speaker 00:
Then you file a discovery motion and you either get it or you get an adverse interest, but you can't hold us out now.

[00:06:13] Speaker 00:
We have to deal with the evidence that would go in, that's been presented on the summary judgment record and there

[00:06:23] Speaker 00:
they're not similarly situated on that record because she has two and they have one.

[00:06:28] Speaker 00:
And the fact that you think it's unfair that you don't have evidence to get from one to two on the comparators is just not something, how can we do anything about that at this point?

[00:06:39] Speaker 00:
That's a discovery issue that wasn't litigated.

[00:06:42] Speaker 02:
Your honor, that's because if they don't come forward with the evidence as the plaintiffs... But it's not their burden.

[00:06:49] Speaker 00:
The district court assumed the prima facie case.

[00:06:52] Speaker 00:
It's certainly a neutral and valid reason to fire someone that they've had two instances of serious misconduct that could affect the reputation and customer satisfaction of the company.

[00:07:10] Speaker 00:
that certainly at phase two a valid ground so it goes to pretext at three and at phase three with pretext a key issue is comparators and similarly situated and they're not and it's not their burden it's your burden on pretext at stage three now i understand your position your honor but it's not my position that's the law that's what we've got i understand your honor but also it is their burden to present the evidence that they are going to use

[00:07:37] Speaker 02:
in defense of their case.

[00:07:39] Speaker 02:
And so if they tell us that we don't have an employment file, then Ms.

[00:07:42] Speaker 02:
Todd can't later come in and say, oh, yeah, I've looked at Mr. Reinhart's employment file and Ms.

[00:07:47] Speaker 02:
Peck's employment file, and Mr. Reinhart was only investigated once.

[00:07:52] Speaker 02:
And so if we're being told that they don't have the evidence, then we're entitled to rely on those verified discovery responses that there are no employment files.

[00:08:00] Speaker 02:
And so there's no way for us to know whether there was one, whether there was two, whether it was multiples,

[00:08:06] Speaker 02:
I mean, Mr. Reinhart could have been investigated five times for all we knew during discovery because they said he didn't have an employment file.

[00:08:13] Speaker 02:
Post say he's an equal comparator because we can speculate that maybe he has five?

[00:08:19] Speaker 02:
I think, Your Honor, he's a comparator because he was a business manager under Mr. Emerson, who was investigated for this exact same reason.

[00:08:26] Speaker 02:
And unlike Ms.

[00:08:28] Speaker 02:
Peck, Mr. Reinhart said, oh, yeah, we do that all the time.

[00:08:31] Speaker 02:
I tell him to do that.

[00:08:32] Speaker 00:
He the one who was out on disability at the time of the

[00:08:35] Speaker 02:
Decision was that the other one well, and that's the other issue your honor is miss Alicia Todd the only evidence We have that he was out on disability is the declaration of Miss Alicia Todd Miss Todd stated during her deposition that she wasn't familiar with Mr.. Reinhart during her inner declaration She says I'm a custodian of records, but the records just she's a custodian for purposes of

[00:08:58] Speaker 00:
of the business records rule and, you know, the hearsay rule and laying an appropriate foundation under the foundation rules.

[00:09:08] Speaker 00:
But that's, as the district court said, her ability to do that limited role is distinct from saying she has personal knowledge of Mr. Reinhart and the personnel actions.

[00:09:18] Speaker 00:
Those are not inconsistent.

[00:09:21] Speaker 00:
Why is, why was the district court wrong in saying that?

[00:09:23] Speaker 02:
Because with Mr.. Reinhart she specifically said I didn't know him.

[00:09:27] Speaker 02:
I'm not involved in this case That's different from the laying the foundations for the business records I understand the court's position that the district court's position that she can We can designate someone to be a custodian of records to come in later and lay those foundations but the part that the court relied on in her testimony isn't based on any of the

[00:09:48] Speaker 02:
business records that she submitted.

[00:09:50] Speaker 02:
It's based on her claiming to have personal knowledge.

[00:09:52] Speaker 02:
She doesn't say, I went back through and reviewed this.

[00:09:55] Speaker 02:
This is later on in her declaration, the discussion of Mr. Reinhart, where she says, Mr. Reinhart was out on disability, Mr. Reinhart was this, Mr. Reinhart was that.

[00:10:07] Speaker 02:
But yet during her deposition, when we asked her, Ms.

[00:10:10] Speaker 02:
Todd, do you know Mr. Reinhart?

[00:10:13] Speaker 02:
No, I was not involved in that case.

[00:10:15] Speaker 02:
And we've cited the court to that section in her deposition.

[00:10:18] Speaker 02:
And so that is distinct from the business records issue is that she tells us at one stage that she doesn't have that information and then later has that information.

[00:10:31] Speaker 02:
if she doesn't have that information then there's a question of fact as to the veracity of her declaration which creates a tribal issue for the court or for trial your honor I think there's a lot of issues with the discovery in this case and I understand the position that well how come the

[00:10:52] Speaker 02:
Plaintiffs aren't running and filing motions to compel.

[00:10:54] Speaker 02:
Why didn't we seek a second deposition of miss Todd?

[00:10:57] Speaker 02:
Why don't we do this?

[00:10:57] Speaker 02:
Why don't we do that?

[00:10:58] Speaker 02:
I mean arguably I should have stopped the deposition.

[00:11:01] Speaker 02:
I should have said mr. Clifton your Person your witness isn't answering any questions.

[00:11:07] Speaker 02:
We're going to get in front of the judge We're going to have the judge issue an order on this but at the same time I

[00:11:13] Speaker 02:
From my perspective, if a witness says, I don't know something, then I should be able to rely on the fact that she doesn't know that.

[00:11:21] Speaker 02:
In fact, quite often, and I may have done it in this deposition, I don't recall, but quite often when I have those non-cooperative witnesses, I will tell them, I will say, all right, I understand you don't know this, you don't remember.

[00:11:35] Speaker 02:
Are you going to remember when it comes to trial?

[00:11:38] Speaker 02:
And this is one of those instances why I say that because we have Miss Todd who doesn't know Mr. Reinhart, not involved in that case, not sure why he wasn't terminated, not sure about his, if he'd been investigated however many times.

[00:11:53] Speaker 02:
She doesn't know at one stage and then we come for summary judgment and she signs a declaration laying forth in detail everything she knows.

[00:12:02] Speaker 02:
Your honor I think the issue with this being decided on summary judgment on the comparator issue is that generally The issue of whether people are similarly situated something that is a question of fact for a jury We've cited several cases that says that summary judgments only appropriate when no reasonable jury can find that the Comparators are similarly situated to the plaintiff

[00:12:27] Speaker 02:
And there's the Cornwell versus Electric-Centra credit union.

[00:12:31] Speaker 02:
There's the McDonald versus Villa-Winnetka.

[00:12:35] Speaker 02:
There's several others that we've cited in our brief, Your Honor, that we believe that the determination of comparators is something that should go to the trial.

[00:12:46] Speaker 02:
There's also other facts, we think, that show that this was a pretextual reason for terminating Miss Peck.

[00:12:54] Speaker 00:
Were there any motions to compel filed by you in this case?

[00:12:58] Speaker 02:
No, Your Honor.

[00:12:58] Speaker 02:
Again, when a witness tells me they don't know something, I take them at their face value.

[00:13:04] Speaker 02:
They're under oath.

[00:13:05] Speaker 02:
I believe that that will prevent them from perjuring themselves later by signing a declaration.

[00:13:11] Speaker 00:
where they suddenly know what they didn't know.

[00:13:16] Speaker 02:
Were you intended to file espoliation of evidence prior to the trial, Your Honor, but

[00:13:30] Speaker 02:
For purposes of moving forward strategically, we felt that if they wanted to play the game that they didn't have stuff, then we were happy to play that game with them and just assume that they weren't going to document dump on the eve of summary judgment when they suddenly remember, hey, we do have stuff.

[00:13:50] Speaker 00:
So let me ask you a question about the state.

[00:13:54] Speaker 00:
law claim, because you have this contention that she's deprived of the bonus from the decision in October that was delayed until December.

[00:14:09] Speaker 00:
How is she injured by that?

[00:14:13] Speaker 00:
the decision had been made in October should be equally deprived of the bonus.

[00:14:18] Speaker 00:
So I don't see how that, you know, because it's presented as this is a terrible thing which took the bonus right out of her hands, but if it had been done the way you said it should have been done, it still would have been out of her hands.

[00:14:32] Speaker 02:
Yes, Your Honor.

[00:14:33] Speaker 02:
The delay is more to show the pretextual reason, the pretext in this, because... No, but you're pleading this is a separate, you know... Yes.

[00:14:42] Speaker 00:
...state law claim.

[00:14:44] Speaker 00:
And so I'm just, is there anything to that that's separate from the main claim?

[00:14:49] Speaker 02:
So for the state law claim, Your Honor, we believe that because she was wrongfully terminated, had she not been terminated, she would have earned that bonus.

[00:14:57] Speaker 02:
The delay goes to the state law implied coven of good faith and fair dealing, where Ms.

[00:15:04] Speaker 00:
Peck was enticed by UPS to remain at her post, to remain... What I'm hearing from you is that really the state claim rises or falls with the federal claim.

[00:15:14] Speaker 02:
Yes, I would okay say that all right that's helpful, and I will reserve the rest of my time for rebuttal unless there are any other questions All right.

[00:15:21] Speaker 02:
Thank you council.

[00:15:22] Speaker 00:
Thank you your honor, so we'll hear from Mr.. Ritter

[00:15:45] Speaker 01:
Good morning and may it please the court.

[00:15:48] Speaker 01:
My name is Michael Ritter and I represent Eppley United Parcel Service in this case.

[00:15:53] Speaker 01:
UPS respectfully request that this court affirm the summary judgment of the district court as to all of Mrs. Peck's claims including her four state law claims involving the breach of contract with regard to the

[00:16:06] Speaker 01:
manager incentive program bonus as well as her claim that her at will employment was modified by the employment dispute resolution manual in addition to that ups also asked that the court affirm district court summary judgment as to the title 7 claim and the related sham affidavit issue involved in the motion to strike

[00:16:29] Speaker 01:
Unless the court has any specific questions about the state law claims, UPS would first like to address the Title VII claim and the pretext issues that have been presented to this court.

[00:16:40] Speaker 01:
The district court correctly concluded that Ms.

[00:16:43] Speaker 01:
Peck failed to meet her burden at this third stage of the McDonnell Douglas framework to identify specific, substantial evidence that Mr. Emerson's decision to terminate her employment was a pretext for sex discrimination.

[00:16:57] Speaker 01:
And the sequence of events here is incredibly important to understanding the context in which Mr. Emerson made his decision.

[00:17:06] Speaker 01:
My colleague on the other side had stated that Emerson admitted in his deposition that he didn't consider anything except for the second report.

[00:17:15] Speaker 01:
However, that second report also includes a reference to Ms.

[00:17:19] Speaker 01:
Peck receiving the instruction to stop the records falsification practice at her centers as indicated in the first report.

[00:17:28] Speaker 01:
Another important distinction that needs to be made in this case is that the allegation here is based on a wrongful termination decision made by Emerson.

[00:17:41] Speaker 01:
Ms.

[00:17:41] Speaker 01:
Peck has raised arguments about how Holloway investigated the case, and after the termination decision,

[00:17:49] Speaker 01:
about HR's decision, including the decision by Jill Cootie to not follow the EDR, a peer group, recommendation of reinstatement.

[00:17:59] Speaker 01:
As it's been alleged, Ms.

[00:18:01] Speaker 01:
Peck has not alleged that either of those actions were themselves discriminatory.

[00:18:05] Speaker 01:
And so the focus of the court's inquiry is whether or not there is specific substantial evidence that Mr. Emerson's reason for terminating her employment was a pretext for sex discrimination.

[00:18:24] Speaker 01:
To prove pretext, Ms.

[00:18:25] Speaker 01:
Peck has relied on two comparators primarily.

[00:18:28] Speaker 01:
Mr. Brad Tulson out of the Butte Montana Center and Floyd Reinhart out of the Cheyenne Center.

[00:18:36] Speaker 01:
As Judge Collins, your questions have referred to before, there was a clear distinction made between the investigations in those centers versus the two investigations with Mrs. Peck's centers.

[00:18:51] Speaker 01:
Neither Tolson nor Reinhardt were subject to two investigations.

[00:18:55] Speaker 01:
And to be clear as to what the record shows, the investigations were not into specific individuals in particular.

[00:19:03] Speaker 01:
The investigations were into why are there falsification of records at these particular centers and who's responsible for them.

[00:19:12] Speaker 01:
And so when those centers were investigated, the reports from those investigations indicated where the responsibility lay.

[00:19:21] Speaker 00:
So does the record merely show that there was one incident or investigation as to each of the two comparators or does it further show that those were the only ones?

[00:19:42] Speaker 00:
So did you establish or present evidence establishing that those were exclusive?

[00:19:51] Speaker 01:
So the summary judgment record does not have affirmative evidence saying these were the only two investigations that, or sorry, the only investigations that Tolson was part of or that Reinhart was involved in.

[00:20:07] Speaker 00:
But no one said these were exhaustive.

[00:20:09] Speaker 00:
We know that there were these one for each of the two comparators, but there's nothing that tells us whether that was exhaustive.

[00:20:19] Speaker 01:
Correct.

[00:20:20] Speaker 01:
However, the reason that Emerson gave was that it was his understanding, and to his knowledge, that it was the only investigations for Tulsa and Reinhardt Center, whereas Ms.

[00:20:30] Speaker 01:
Peck had to.

[00:20:31] Speaker 01:
And so, whether objectively they were subject to multiple investigations, that particular fact does not appear in the record.

[00:20:38] Speaker 01:
But when we're looking at Emerson's decision, whether there's pretext being shown by Ms.

[00:20:43] Speaker 01:
Peck,

[00:20:43] Speaker 01:
That's what the basis for his decision was as per his deposition testimony.

[00:20:51] Speaker 00:
Is it true that UPS does not have personnel files?

[00:20:58] Speaker 01:
Yes, Your Honor.

[00:20:59] Speaker 00:
That seems kind of hard to believe.

[00:21:02] Speaker 01:
It's the way in which UPS keeps the records of its employees.

[00:21:08] Speaker 01:
And Alicia Todd's declaration actually kind of gets into

[00:21:12] Speaker 01:
explaining this, however, because there was no motion to compel, this really wasn't teed up in a way that UPS presented a full-fledged response defending and explaining how it keeps its records.

[00:21:25] Speaker 01:
If the court looks to Alicia Todd's declaration, she refers to a couple of facts.

[00:21:29] Speaker 01:
first There are several paragraphs that describe how for example FMLA records are kept by a third party administrator called the Hartford and What that is reflective of in the fact that ups has?

[00:21:43] Speaker 01:
500,000 employees is that this is not a small mom-and-pop shop where your HR department has employee files for 10 people in a cabinet somewhere you're talking about a very large corporation a very large with a

[00:21:57] Speaker 01:
with a very old company that has managed its employee records in different files.

[00:22:06] Speaker 01:
And so whenever we request files, we have to request them from each system to create the package of what we submit to opposing counsel whenever specific files are requested.

[00:22:19] Speaker 01:
However, as far as a personnel file, there's not like one personnel file for each individual employee that we just pull that exists as a full and complete file.

[00:22:33] Speaker 01:
If Ms.

[00:22:34] Speaker 01:
Peck had an issue with that and wanted to present that as an adverse inference to this court or for summary judgment purposes,

[00:22:40] Speaker 01:
She stated that, or my colleague stated that their plan was to file a motion for exfoliation instruction at trial.

[00:22:48] Speaker 01:
However, the remedy was to file a motion to strike Ms.

[00:22:52] Speaker 01:
Todd's declaration in some other way than just the sham affidavit rule.

[00:22:57] Speaker 01:
Because that was not done, there was not an opportunity for UPS to come back and explain, or a need for UPS to explain any sort of inconsistencies there.

[00:23:07] Speaker 01:
And more importantly, when we get to the sham affidavit issue,

[00:23:12] Speaker 01:
There are a couple of preliminary issues with this particular grounds for reversal.

[00:23:19] Speaker 01:
And the first is that Ms.

[00:23:21] Speaker 01:
Peck has not shown that there has been any prejudice.

[00:23:24] Speaker 01:
Before even getting to the merits of whether the district court properly applied the sham affidavit doctrine here, Peck hasn't disputed that the only factual matter that is implicated as to the sham affidavit rule is whether Reinhart was on FMLA leave.

[00:23:39] Speaker 01:
And for two reasons, the court need not even reach the merits of issue number two because the error ultimately is not prejudicial.

[00:23:49] Speaker 01:
For example, if the court agrees that both Tolson and Reinhart are not similarly situated because they were only involved in one investigation as opposed to two, then Mr. Reinhart's FMLE leave status is not an issue that the court needs to address.

[00:24:06] Speaker 01:
Second,

[00:24:07] Speaker 01:
Although my colleague has stated that the only evidence of Reinhardt's disability leave was Todd's declaration, the district court found in footnote three that the testimony also came from Mr. Emerson's deposition where he testifies that he had made the decision to actually terminate Floyd Reinhardt

[00:24:35] Speaker 01:
However, that termination decision was never processed through HR because UPS has a policy of not disciplining or discharging employees while they are on leave.

[00:24:46] Speaker 01:
So even if the court were to grant

[00:24:50] Speaker 01:
or were to assume that the district court erred, the only factual matter that would be relevant would be to exclude Todd's declaration testimony about FMLE leaf status, which is independently proven by evidence that was not objected to, and that was admitted into the summary judgment record below.

[00:25:08] Speaker 01:
However, even if the court were to reach the merits of the sham affidavit doctrine, Peck failed to establish that the district court abused its discretion in denying her motion to strike.

[00:25:19] Speaker 01:
For this particular issue, the standard of review actually flips in terms of the deference given to the trial court.

[00:25:26] Speaker 01:
It's an abusive discretion standard rather than a de novo standard.

[00:25:29] Speaker 01:
And what that means is even though you view the evidence as to the merits of a claim for summary judgment purposes in a light and most favorable to the non-moving party, whenever there is conflicting evidence that goes to the preliminary question of admissibility for the district court, those conflicts are resolved in

[00:25:49] Speaker 01:
terms of deference to district court's decision.

[00:25:53] Speaker 01:
Here, there is no inherent contradiction.

[00:25:55] Speaker 01:
If district court correctly concluded, there's no inherent contradiction between Todd's declaration and her deposition testimony with regard to the ethnoly status or with the distinction between being a keeper versus a custodian.

[00:26:11] Speaker 01:
There is something to be said about reviewing the evidence in a lightness favorable to one side or the other But one of the things uts would urge the court to do is whenever there's a characterization of what the record shows to look to the specific Statements that are being made by the witness Whether it's in their deposition or in a declaration for example with the keeper versus custodian issue miss Todd

[00:26:40] Speaker 01:
stated in her deposition, it is not my role to keep records.

[00:26:45] Speaker 01:
That is a function of the compliance group.

[00:26:47] Speaker 01:
And then her declaration, she says, I am a custodian of record for UPS, and I'm familiar with the process for keeping those records, and then provides the explanation.

[00:26:55] Speaker 01:
And so when you compare the actual statements, there's no unambiguous contradiction that necessarily requires application of the sham affidavit doctrine in this case.

[00:27:11] Speaker 01:
Unless the court has any questions about the Title VII issue, UPS will briefly address the state law claims.

[00:27:19] Speaker 01:
Starting with the employee dispute resolution claim that UPS breached its contract by not following the recommendations of the peer review group to reinstate her.

[00:27:31] Speaker 01:
Idaho Supreme Court has ruled that if there is an express disclaimer in an employee manual that says this is not a contract Then that will dispel as a matter of law any sort of contract claim between the party and employment context Here on the first page of the EDR manual it expressly states This is not a contract satisfying this basic tenant of Idaho law to preclude a breach of contract claim as to the EDR process and

[00:27:57] Speaker 01:
going to the MIP bonus claims regarding the Idaho Wage Claim Act.

[00:28:05] Speaker 01:
The standard there is whether or not there were wages due, not whether there were wages earned.

[00:28:12] Speaker 01:
And the due requirement essentially requires that the plaintiff establish that they were due a particular payment as per the employer's... You basically conceded in the questioning that

[00:28:26] Speaker 00:
that claim stands or falls with the Title VII claim.

[00:28:31] Speaker 00:
And do you agree with that?

[00:28:34] Speaker 00:
I mean, if you lose on the Title VII claim, then the bonus is damages.

[00:28:41] Speaker 01:
Potentially, yes.

[00:28:43] Speaker 01:
I believe that the state law claims do in large part stand or fall.

[00:28:45] Speaker 00:
But he said if he loses on the Title VII, it just doesn't work under state law.

[00:28:50] Speaker 01:
Because she wasn't going to get the bonus correct in october correct your honor and unless the court has any further questions for me I'll get the time back to the court All right.

[00:28:59] Speaker 00:
Thank you counsel.

[00:29:00] Speaker 02:
We'll hear rebuttal Thank you your honor just briefly on the pretext issue I

[00:29:13] Speaker 02:
I would note that the court has held that that's a fairly low burden, that if there's a question that calls into, or if there's facts that call into questionability the credibility of the alleged non-discriminatory reason, then it needs to go back to for a trial.

[00:29:32] Speaker 02:
In this case, we point to a lot of facts that should have been construed in favor

[00:29:37] Speaker 02:
of Miss Peck UPS has conceded that there's no evidence in the record saying that these are the only claims but yet the court dismissed it based on that inference that it drew that because UPS had only submitted one that those were the only one so with that you're on we'd ask that the court send it back for a trial all right thank you counsel the case just argued will be submitted and

[00:30:00] Speaker 00:
I thank counsel for your arguments in this case and this court for this session stands adjourned.

[00:30:11] Speaker 00:
All rise.