[00:00:03] Speaker 01:
Morning.

[00:00:04] Speaker 04:
May it please the court, Your Honor.

[00:00:07] Speaker 04:
Good morning.

[00:00:08] Speaker 04:
Greg Stevens here on behalf of Mr. Sampson, who is present at council table.

[00:00:13] Speaker 04:
In this case, as your honors are aware, there are two claims.

[00:00:17] Speaker 04:
One is disparate treatment based on race, and the other is retaliatory termination.

[00:00:24] Speaker 04:
Both claims, we believe, present genuine issues of material fact that preclude summary judgment in the case.

[00:00:31] Speaker 04:
On the disparate treatment case, as we pointed out in our brief, the disparate treatment is in

[00:00:40] Speaker 04:
two parts.

[00:00:41] Speaker 04:
One is disparate treatment based on the assignment of territories based on zip codes.

[00:00:47] Speaker 04:
And the evidence that supports the fact that it was disparate treatment is that Mr. Sampson and Mr. Duplassis, the only two African-American sales representatives, were assigned the

[00:01:01] Speaker 04:
territories based on zip codes with the lowest average income over the three years preceding the reassignment based on zip codes.

[00:01:11] Speaker 04:
The comparators for that, one of them is Mr. Blacker, whose declaration we submitted, in which he stated that he was in NAE.

[00:01:21] Speaker 04:
The ConocoMinolta disputes that and say he was in SAE and is therefore not a useful comparator.

[00:01:29] Speaker 04:
but in his own declaration submitted to the court, he states that he was an NAE.

[00:01:35] Speaker 04:
So we believe that Mr. Blecker is a useful comparator.

[00:01:40] Speaker 04:
The other comparator is... Let me ask you this.

[00:01:47] Speaker 01:
Correct me if my understanding of the facts isn't correct.

[00:01:50] Speaker 01:
I understood that the

[00:01:52] Speaker 01:
Changed to zip code Was done for everybody right all the salespeople were changed to that yes, and it was done basically based on seniority is that incorrect that Partially yes, but Overall no so is mr.. Duplessis and mr.. Sampson were given it they did not

[00:02:18] Speaker 04:
claim that they made it based on seniority.

[00:02:21] Speaker 04:
They claim that they made it based on, and they submitted the spreadsheet that we provided to the court.

[00:02:28] Speaker 04:
They claim that they did it based on whether the software rated the particular area as good or fair or poor.

[00:02:37] Speaker 04:
So they didn't say they did it based on seniority.

[00:02:39] Speaker 01:
But doesn't the record show that that's what was done?

[00:02:44] Speaker 01:
Dispute that it was done on something other than seniority?

[00:02:49] Speaker 04:
Our position, and I think the facts bear this out, are that it was based, at least a motivating factor, based on the fact that the only two African-American sales reps were given the two lowest areas shows that it was based on, at least based in part, motivated by race.

[00:03:08] Speaker 01:
And what evidence in the record do you have to confirm that fact?

[00:03:12] Speaker 01:
I know they're circumstantial, but is there any direct evidence that you

[00:03:16] Speaker 01:
have deduced that says, we're going to give these two least productive areas to these two people because they're African-American?

[00:03:24] Speaker 01:
Or anything like that on the record?

[00:03:25] Speaker 04:
They certainly don't say that, but the facts on that spreadsheet, which is in the third volume at 528, show that's what they did.

[00:03:34] Speaker 04:
In their own document that shows how the territories were reassigned, that shows that they were given the lowest territories.

[00:03:46] Speaker 01:
Well, OK.

[00:03:47] Speaker 04:
I mean, nobody said we're doing this because of the two African-Americans.

[00:03:50] Speaker 04:
But the fact is that they assigned the lowest producing territories to the two African-Americans.

[00:03:57] Speaker 01:
But they claim that this is not pretextual.

[00:04:00] Speaker 01:
This is a genuine business reason.

[00:04:03] Speaker 01:
We're doing it with everybody.

[00:04:05] Speaker 01:
We're doing it based on seniority.

[00:04:07] Speaker 04:
That is not an argument that they raised below.

[00:04:09] Speaker 04:
They raised it first time on appeal to your honors.

[00:04:15] Speaker 04:
Because of that, we don't think the court should address it now.

[00:04:18] Speaker 04:
But in fact, there are reasons to disbelieve their proffered reason.

[00:04:28] Speaker 01:
Let's get to that.

[00:04:29] Speaker 01:
You, of course, are very familiar with the McDonnell-Douglas approach to things.

[00:04:34] Speaker 01:
So in this case, the business says that your client lied to his boss, who I think was Stockbauer.

[00:04:42] Speaker 01:
and the investigator from Olson claiming that he attended meetings on November 21st and 22nd.

[00:04:46] Speaker 01:
Do you dispute that that is incorrect?

[00:04:50] Speaker 04:
Yes.

[00:04:51] Speaker 04:
And that goes to that doesn't go to the despair treatment claim.

[00:04:54] Speaker 04:
That goes to the retaliatory termination.

[00:04:56] Speaker 01:
I'm just trying to understand some of the background.

[00:04:58] Speaker 04:
Right.

[00:04:58] Speaker 04:
And so Mr. Sampson, he didn't attend those meetings, right?

[00:05:06] Speaker 04:
He did not attend those meetings, but he never said that he did attend those meetings.

[00:05:10] Speaker 03:
So let me point to, maybe I'm misinterpreting this, ER-784, which I believe is his email.

[00:05:18] Speaker 03:
And he's talking about Dynalectic Company.

[00:05:22] Speaker 03:
And he says in here, one rate plane on 20-plus printers per end, see attached proposal, which was presented on 11-21-19.

[00:05:34] Speaker 03:
That's not saying that he was presenting the proposal on 11-21-19 to Dine Electric.

[00:05:42] Speaker 04:
He never said, and I think you're referring to the email between Ms.

[00:05:46] Speaker 03:
Stockbauer and to... Yes, I'm referring to his, if I'm doing this right, I'm quoting his response.

[00:05:51] Speaker 04:
Right, and so he's not saying in that email that he attended the meetings on the date they say he did, because he didn't, the dates that they say that he attended those meetings were dates provided by Mr. Reed when he took Mr. Sampson's activity log, which had no dates in it.

[00:06:09] Speaker 03:
Tell me then what does this mean

[00:06:11] Speaker 03:
where he says the attached proposal, which was presented on 11-21-19, we should infer from that that he was saying that even though the time records and the whole discussion was about whether he was there on 11-21, he was saying that was somebody else, not me.

[00:06:28] Speaker 04:
No, what he was saying was he presented them with a proposal.

[00:06:30] Speaker 04:
He never said he had an in-person meeting.

[00:06:33] Speaker 04:
His statement was that he provided the proposal to them.

[00:06:37] Speaker 03:
On 11-19.

[00:06:38] Speaker 03:
Right.

[00:06:39] Speaker 04:
How?

[00:06:41] Speaker 04:
My understanding is he just dropped it off at the facility there.

[00:06:45] Speaker 04:
He didn't have an in-person meeting with anybody.

[00:06:48] Speaker 04:
And so he wasn't trying to say in that email to Ms.

[00:06:51] Speaker 04:
Stackbauer that he attended these meetings.

[00:06:55] Speaker 04:
and his position has always been that he submitted an activity log that had none of those dates in it, and that activity log is what they used as a basis of his termination to say that he falsified, and this is the basis of the termination, is that he falsified records, falsified data input into the CRM database.

[00:07:16] Speaker 00:
Both the falsifying the records and the statements that were made

[00:07:24] Speaker 00:
during the investigation.

[00:07:25] Speaker 00:
But you're denying that he made the statements about the dates during the investigation?

[00:07:34] Speaker 04:
That actually reflects the reason they gave for his termination after he pursued his claim with the EEOC.

[00:07:41] Speaker 04:
The reason they gave for his termination was that he falsified input into the CRM database.

[00:07:46] Speaker 04:
That changed to what your honor is saying is that he was dishonest during the investigation.

[00:07:54] Speaker 04:
And we think that's at least one of the factors that points in favor of

[00:07:58] Speaker 04:
of showing pretext on their part is that they actually change the reason.

[00:08:02] Speaker 03:
What did you mean in your brief at page 23 where you said since his termination he has not disputed that he did not have appointments with Dynelectric Altitude and PeopleSkills on November 21 or 22 when you say since his termination were you differentiating that before his termination he did claim he had those meetings?

[00:08:24] Speaker 03:
Because it seems like pretty precise language in your brief.

[00:08:28] Speaker 04:
We were essentially responding to an argument that Conica Minolta made below that he had attended these meetings.

[00:08:37] Speaker 04:
And so that's what we were trying to differentiate there was heading off an argument that we anticipate as they did the argument that they would be making on appeal.

[00:08:47] Speaker 01:
Can I go back to the first, the non-retaliation aspect?

[00:08:51] Speaker 01:
I understand that Mr. Sampson didn't file his HR complaint until after he was reassigned

[00:08:57] Speaker 01:
based on zip code, is that correct?

[00:08:59] Speaker 04:
That is correct.

[00:09:00] Speaker 01:
So how could the reassignment have been as a result or a retaliation of his making a complaint?

[00:09:06] Speaker 04:
were not claiming that the reassignment based on zip codes was retaliatory for his making a complaint.

[00:09:15] Speaker 04:
The only claim that we have for retaliation is the termination, the suspension and the termination.

[00:09:20] Speaker 04:
So it was one of the things they complained about was that he believed that his assignment based on zip codes was based on race.

[00:09:28] Speaker 04:
So you're correct.

[00:09:29] Speaker 01:
I guess what I'm confused about is he made the complaint to HR

[00:09:36] Speaker 01:
That's what happened as a result of the zip code.

[00:09:38] Speaker 01:
But that was done before he filed the complaint, right?

[00:09:41] Speaker 01:
So one could not have been the precursor, if you will, the condition precedent to the other, right?

[00:09:48] Speaker 04:
That's correct.

[00:09:50] Speaker 04:
We're not claiming that the assignment based on zip codes was in retaliation for a complaint about discrimination.

[00:09:56] Speaker 04:
That claim is solely based on race.

[00:10:01] Speaker 04:
is that he was treated differently based on race.

[00:10:03] Speaker 04:
So as far as the termination claim goes, the other indicia that the reason was not the true reason, Mr. Reed claimed that Mr. Sampson was terminated for falsifying data information that he put into the CRM database.

[00:10:27] Speaker 04:
Dean, Mr. Reed's supervisor, claimed that it was for non-production.

[00:10:31] Speaker 04:
That's a classic reason to disbelieve that the employer's profit reason for termination.

[00:10:39] Speaker 03:
Let me get back to what your client had told the employer.

[00:10:42] Speaker 03:
I'm now looking at ER 786.

[00:10:44] Speaker 03:
I think it's in the same email chain.

[00:10:49] Speaker 03:
He's responding to, you then met with Tom this morning and provided the alleged date and time of the reported in-person meetings.

[00:10:57] Speaker 03:
you claim to have had in-person meetings on Thursday, 11-21 and Friday, 11-22, a copy is attached.

[00:11:04] Speaker 03:
And his response is, I did have in-person meetings.

[00:11:08] Speaker 03:
And I take your point here is that even though he was specifically accused of not attending in-person meetings on 11-21 and 11-22, his response

[00:11:19] Speaker 03:
I did have in-person meetings should be taken as just general, not I had it on the dates that are on the line just above.

[00:11:26] Speaker 03:
I had them at some point in my career.

[00:11:29] Speaker 04:
Well, not at some point in his career, but recently preceding the email.

[00:11:35] Speaker 04:
have to agree with your honor that I think that cast doubt on his credibility, but I don't think it's a In that sense I think it makes it a dispute of fact about whether he the fact that he didn't deny a specific accusation certainly cast out on his credibility We're looking at pretext not whether your client is telling the truth or not in his deposition and

[00:11:57] Speaker 04:
Right.

[00:11:58] Speaker 04:
And I think on summary judgment, I don't think you can take that as an affirmative statement that says, I did have in-person meetings on that.

[00:12:08] Speaker 03:
But the question is not whether, if that were the issue on summary judgment, the question is whether the employer taking it is so devoid of credibility that we should reject it as pretextual.

[00:12:25] Speaker 03:
I mean, I think most normal, I think most people reading this would take that as a response specifically to, yes, I did attend meetings on 21 and 22.

[00:12:36] Speaker 04:
I agree.

[00:12:38] Speaker 04:
I do.

[00:12:38] Speaker 04:
I think, as I say, I think it may cast down on its credibility.

[00:12:42] Speaker 04:
But I don't think that's a determination on summary judgment that you can make that, therefore, the employer's reason is credible because of the other factors that we cited, the other facts that we cited, the changing or the different reasons offered by two different supervisors, the changing reasons from.

[00:13:02] Speaker 00:
In order to create a reasonable inference of pretext,

[00:13:06] Speaker 00:
You would have to say that the employer reading this exchange would read this to mean he's denying that he had the meetings on the 21st and 22nd, but we really have it out for him.

[00:13:23] Speaker 00:
The natural reading of this, objectively, is that he's

[00:13:29] Speaker 00:
He is claiming that he had the meetings on the 21st.

[00:13:31] Speaker 00:
I did have in-person meetings.

[00:13:33] Speaker 00:
He doesn't mention the dates, but that's the lead-in.

[00:13:36] Speaker 00:
And then it says under that, we've been provided false information.

[00:13:40] Speaker 00:
We've been provided information that those appointments

[00:13:45] Speaker 00:
referencing 21st and 22nd, did not occur and that you have provided false information.

[00:13:50] Speaker 00:
Laura, you have absolutely been provided false information, but he, you know, says it.

[00:13:57] Speaker 00:
So he's clearly reinforcing the notion.

[00:14:00] Speaker 00:
So how could anyone reasonably read this as, you know, supporting a reasonable inference of pretext with a document like that where he objectively

[00:14:14] Speaker 00:
you know, makes a false statement.

[00:14:17] Speaker 04:
I think that is one reading, and I think it's a fair reading of the document.

[00:14:21] Speaker 04:
But as I said, I don't think it's the only reading you can give to that document on summary judgment.

[00:14:26] Speaker 04:
It may, in front of a jury, call question into its credibility.

[00:14:29] Speaker 00:
This, as an objective matter of how a reasonable reader would read it, you could reasonably read this as not claiming that you had meetings on the 21st and 22nd.

[00:14:42] Speaker 04:
You could.

[00:14:42] Speaker 04:
In fact, though, Ms.

[00:14:44] Speaker 04:
Stockbauer is not

[00:14:46] Speaker 04:
the one who made the decision to terminate Mr. Sampson.

[00:14:50] Speaker 04:
It was Mr. Reed, although Mr. Reed denied that he made that decision.

[00:14:56] Speaker 04:
Mr. Dean said that he did, and Mr. Dean said it had nothing to do with this email.

[00:15:06] Speaker 04:
Mr. Reed, who is the one that made the decision to terminate him, said it was solely based on the fact that he falsified information on the CRM database, not what came after by HR department later, essentially giving the go-ahead to Mr. Reed's recommendation to terminate.

[00:15:24] Speaker 04:
which I said he denied having made, and then Mr. Jean said that he actually did make it.

[00:15:30] Speaker 01:
Okay, your time is up.

[00:15:31] Speaker 01:
Let me ask my college brother either has additional questions, Mr. Stevens.

[00:15:35] Speaker 01:
Thank you.

[00:15:35] Speaker 01:
All right, Mr. Mahoney, please, for Konica.

[00:15:40] Speaker 02:
Thank you.

[00:15:45] Speaker 02:
Good morning, Your Honors.

[00:15:46] Speaker 02:
May it please the Court, excuse me.

[00:15:49] Speaker 02:
Scott Mahoney representing a respondent.

[00:15:51] Speaker 02:
Before I go into my planned remarks, I do want to comment briefly on something that seemed to be of interest to the panel, and that was the question about falsifying Conica's belief that he had been dishonest during the course of the investigation.

[00:16:08] Speaker 02:
It was pointed out, the quote about the proposal, that's at 784 of the record, and also about the

[00:16:18] Speaker 02:
Quote I did have in-person meetings that's at 786 of the record There was one other thing that was in our brief Which may be the most telling of all?

[00:16:28] Speaker 02:
He wrote in relation to the three appointments that He said he attended quote.

[00:16:35] Speaker 02:
I am requesting proof behind the false accusation that I did not attend these appointments.

[00:16:40] Speaker 02:
I think that

[00:16:42] Speaker 02:
as a matter of common sense and normal speech.

[00:16:45] Speaker 00:
Were you reading from when you said that?

[00:16:48] Speaker 02:
Yes, Your Honor, that's at 4, excerpt of record 789.

[00:16:52] Speaker 02:
789?

[00:16:52] Speaker 00:
Yes, sir.

[00:16:54] Speaker 01:
As I recall, the company also basically had him tailed, investigated him.

[00:17:02] Speaker 01:
What role, if any, does that play in our analysis of whether there was falsehood here?

[00:17:07] Speaker 02:
Well, first of all, the reason for the investigation was, and he compares himself with Mr. Milanovic and says, well, why wasn't Mr. Milanovic, who hadn't engaged in a protected activity, not tailed when I was?

[00:17:21] Speaker 02:
And Mr. Reed offered in his declaration, and I think it's elsewhere in the record, he said, well, both Milanovic and Mr. Sampson were poor performers in terms of sales.

[00:17:33] Speaker 02:
That's a commonality.

[00:17:34] Speaker 02:
No dispute about that.

[00:17:36] Speaker 02:
The difference was that the way Conica operates, maybe it's different from some sales organizations.

[00:17:42] Speaker 02:
They don't want people necessarily going to door and making quote unquote cold calls.

[00:17:47] Speaker 02:
What they do is they provide the sales people with a list of clients and the contact information and they call them.

[00:17:54] Speaker 02:
And of course at some point they do go out and make proposals and things.

[00:17:57] Speaker 02:
But basically they're supposed to be working out of the office the majority of the time.

[00:18:02] Speaker 02:
the situation with Mr.. Sampson was he seemed to have developed a habit or whatever of coming in in the morning kind of making an appearance that going out for a while and At some point coming back in and making another appearance investigator found that right that was a report anyway well that that was yeah, actually a

[00:18:23] Speaker 02:
What happened was that was the impetus behind doing it in the first place.

[00:18:27] Speaker 03:
There was a thought and then there was surveillance on a limited number of days.

[00:18:33] Speaker 02:
That's correct and surveillance actually confirmed the thought.

[00:18:35] Speaker 02:
The difference in Mr. Milanovic's case why he wasn't put under surveillance was that he was a poor performer but

[00:18:44] Speaker 02:
He seemed to spend most of his time in the office.

[00:18:46] Speaker 02:
So, well, we don't know why he's performing poorly, but it's not because he's goofing around out of the office.

[00:18:51] Speaker 02:
He's here.

[00:18:52] Speaker 01:
And he was ultimately terminated as well, right?

[00:18:54] Speaker 02:
He was ultimately terminated later.

[00:18:55] Speaker 02:
There was Mr. Sampson, while he was on suspension, said something along the lines of, well, what about Milanovic?

[00:19:05] Speaker 02:
He put something false into the database.

[00:19:08] Speaker 02:
So that couldn't have been

[00:19:09] Speaker 02:
was not corroborated at the time.

[00:19:12] Speaker 03:
I think Mr. Sampson even used the word in that sentence you're quoting also.

[00:19:16] Speaker 03:
He also falsified.

[00:19:21] Speaker 03:
Would you agree that there is a disputed issue of fact that Mr. Sampson entered false entries?

[00:19:29] Speaker 03:
Mr. Sampson denied that he did it.

[00:19:33] Speaker 03:
Whether he offered cognizable proof that someone else did it,

[00:19:37] Speaker 03:
The very fact that there were entries there were multiple people who had the opportunity to make entries and he under oath denied making it That's a disputed issue of fact on that right?

[00:19:47] Speaker 03:
I would respectfully disagree with that.

[00:19:48] Speaker 02:
I do not think it's a genuine issue of disputed fact.

[00:19:51] Speaker 02:
Why not?

[00:19:54] Speaker 02:
I would start with the declaration and supporting documents of Miss Polanco where she

[00:20:01] Speaker 02:
talked about the CMR system and the entries into the system and she had determined that on three occasions on November 22nd of 2019 he claimed to have appointments in the morning with altitude color technologies and dynoelectric in the afternoon with people skills and according to her

[00:20:32] Speaker 02:
familiarity with the system and what she learned was that the entries were made that afternoon of November 22nd and that they were made with an ID number using that was associated with Mr. Sampson.

[00:20:48] Speaker 02:
Those I think are undisputed facts.

[00:20:52] Speaker 00:
He specifically denied in his deposition on ER 206 that he made those entries and he said

[00:21:02] Speaker 00:
I didn't put that information in.

[00:21:04] Speaker 00:
Tom Reed could have done that.

[00:21:05] Speaker 00:
He can get into my database.

[00:21:07] Speaker 00:
He's got my password, and he's a guy that's manipulating come up with this whole scenario.

[00:21:11] Speaker 00:
Did you deny that Reed had his credentials?

[00:21:17] Speaker 02:
We do not deny that Reed had the password, but I think it's a leap to say that because he had a password of Mr. Sampson and presumably other subordinates that... But if he denies under oath, and we have to take

[00:21:31] Speaker 00:
absent something like videotape that refutes conclusively, and you don't have forensics that they saw him go on the computer and you saw him typing.

[00:21:41] Speaker 00:
You don't have anything like that.

[00:21:43] Speaker 00:
He denies he put it in.

[00:21:44] Speaker 00:
He has a reasonable explanation.

[00:21:47] Speaker 00:
as to how someone else could have done it who's out to get him, why don't we on summary judgment have to credit his and there isn't something like a Scott V. Harris videotape to refute that?

[00:22:00] Speaker 00:
So we have to take that as a disputed issue, don't we?

[00:22:04] Speaker 02:
Well, I would disagree.

[00:22:05] Speaker 02:
I would think that the fact that Mr. Reed apparently had access to his password and could use it doesn't necessarily

[00:22:16] Speaker 02:
bring you to the conclusion that he did it.

[00:22:19] Speaker 00:
I mean, this is... No, but it's... Mr. Samps is just... And that's a great argument for trier of fact, but the trier... He's going to argue the trier of fact that Reed had opportunity, means, and motive.

[00:22:29] Speaker 00:
And that he's going to argue that inference and you're going to argue the opposite.

[00:22:32] Speaker 00:
Maybe the jury agrees with you, but that's why we have trials.

[00:22:35] Speaker 02:
Well, in Taylor v. List, among many other cases, the observation was made that you can't defeat a summary judgment motion just by speculative conclusions.

[00:22:43] Speaker 00:
But it's not speculative.

[00:22:44] Speaker 00:
He swore under oath, I did not do it.

[00:22:48] Speaker 00:
That's evidence that qualifies for admission in a court of law, and a jury could believe it.

[00:22:54] Speaker 02:
Well, another case I'd bring up then is the Villaramo v. Aloha Air case, and I cite that in the brief, not necessarily for this proposition, but

[00:23:03] Speaker 02:
In that particular case, the court said that as long as the employer genuinely believes the basis for its termination even if... That's a different question.

[00:23:14] Speaker 03:
I mean, it's a different question looking at pretext as opposed to if the issue that we had to decide was is there a triable issue of fact on whether Mr. Sampson entered false entries.

[00:23:30] Speaker 03:
I mean, those are two different questions.

[00:23:34] Speaker 02:
Well, I think ultimately what's the court to determine on the pretext is what motivated obviously Conica and it had an honest belief, you know, trivial, foolish, whatever words of the Ninth Circuit used in that opinion, that there was a falsification.

[00:23:57] Speaker 00:
What's your response?

[00:23:59] Speaker 00:
It seemed from the later exchanges during the course of the investigation that he was making statements that objectively can only be reasonably read as claiming that the meetings occurred on the 21st and the 22nd.

[00:24:16] Speaker 00:
But his response to that is, well, that wasn't the basis of the firing.

[00:24:20] Speaker 00:
It was the entries into the system and there, you know, there's the disputed issue.

[00:24:25] Speaker 00:
What's your response to that particular argument that you can't rely on the false statements in the investigation?

[00:24:32] Speaker 02:
I apologize.

[00:24:33] Speaker 02:
I'm not entirely sure I understand your question.

[00:24:36] Speaker 00:
So as I understand it, there are two potential falsehoods that he made about having the meetings on the 21st and the 22nd.

[00:24:44] Speaker 00:
One is the entries that are electronically put into the system.

[00:24:48] Speaker 00:
The other is that in the course of his discussions with his superiors who were looking at this,

[00:24:53] Speaker 00:
He's making statements, and Judge Ben and I were reading some of them before, that seem to represent in those communications that he is claiming that the meetings occurred on the 21st and 22nd.

[00:25:06] Speaker 00:
So it's essentially the same claim as in the false entries, but it's not subject to the issue that he's claiming he didn't.

[00:25:13] Speaker 00:
He admits that he made these statements that we were reading from.

[00:25:16] Speaker 00:
But his response to that was that those exchanges and those false statements were not in fact the basis for the determination.

[00:25:24] Speaker 00:
That was something made up later after the fact.

[00:25:28] Speaker 02:
Well, there were two bases for the termination at the time the decision was made.

[00:25:32] Speaker 02:
One was the entering of the false data and then it was also the second reason was it was felt that he had been dishonest in the investigation.

[00:25:42] Speaker 03:
You're talking about ER 779, the termination letter?

[00:25:47] Speaker 02:
Yes, that cites both.

[00:25:48] Speaker 02:
I think there's several points in there where they talk about him being dishonest during the course of the investigation.

[00:25:54] Speaker 02:
And some of the statements we've been talking about, the three different ones we've been talking about this morning was the basis for that.

[00:25:59] Speaker 02:
Now, interestingly, once we got into the litigation context, Mr. Sampson no longer contests that he did not attend these meetings.

[00:26:11] Speaker 01:
So you've heard what the panel is worried about.

[00:26:16] Speaker 01:
What is your best argument at this point that we don't have to send this back because you've got material issues of disputed, genuine issues of material fact?

[00:26:28] Speaker 02:
Are we talking about the retaliation or overall?

[00:26:30] Speaker 01:
On both of them.

[00:26:31] Speaker 01:
They're two separate ones, I realize.

[00:26:33] Speaker 01:
But what's your best argument why we can go ahead and affirm the district court?

[00:26:39] Speaker 02:
Well, let me talk briefly since I'm

[00:26:42] Speaker 02:
getting lower on my time, about the race discrimination thing.

[00:26:46] Speaker 02:
We do not regard the change from the vertical to zip code as even being an adverse employment action.

[00:26:53] Speaker 00:
This is not a... What's your response to his claim that there's a disputed issue of fact as to whether Blecker qualified as an NAE?

[00:27:05] Speaker 02:
Yes, thank you.

[00:27:06] Speaker 02:
I'm glad you brought that up, Your Honor.

[00:27:09] Speaker 02:
So it did not, obviously I don't have a sir reply so I didn't get in writing before you, but it was addressed down at the lower court level.

[00:27:20] Speaker 02:
Mr. Blecker, if I'm pronouncing that correctly, did submit a declaration saying, well I was never an NAE, but at the lower court level in our reply brief on summary judgment we

[00:27:34] Speaker 02:
Submitted some documentation and that is at Excerpt a record 42 to 51 042 to 051 and Say that er, I apologize er 042 to 051 and Part of that is a declaration from someone at the company in HR.

[00:27:56] Speaker 02:
I believe but significantly what the documents are it starts with mr. Bluckers offer letter

[00:28:02] Speaker 02:
Congratulations, we're offering this, you're gonna start out as an SAE.

[00:28:08] Speaker 02:
It says right there in his offer letter.

[00:28:09] Speaker 02:
The second document that's attached to that declaration is that later in his employment, again, it shows him as being an SAE and perhaps most convincingly of all, the third document that's attached to that declaration is some kind of email chain between Mr. Blucker and HR, I think it is.

[00:28:31] Speaker 02:
in his signature block, his own signature block, it says SAE.

[00:28:36] Speaker 02:
So obviously I don't know whether the gentleman's being dishonest or whether he has a faulty memory, but I think it's clearly refuted that, and I think this may be, it's not videotaped, but I think this might be a Scott V. Harris type of situation where there's strong independent objective evidence to show that Mr. Blecker's

[00:29:00] Speaker 02:
not being truthful and I think it was to the extent of this record.

[00:29:04] Speaker 03:
But it could be that the dispute is over whether he thought he was an SAE, not whether in the records of the company he was an SAE and that the changes were made based on what were in the records of the company.

[00:29:19] Speaker 03:
I assume there was nothing that was submitted by Mr. Sampson other than the declaration

[00:29:24] Speaker 03:
that established that this coworker wasn't an SAE.

[00:29:29] Speaker 02:
He was not deposed or anything.

[00:29:31] Speaker 02:
That's the only time the issue came up.

[00:29:34] Speaker 02:
Although on the chart, which is ER 841, he's also listed by the company as an SAE on that chart.

[00:29:46] Speaker 02:
Very briefly, in the time I have left.

[00:29:49] Speaker 01:
Before you go, I want you to answer my question.

[00:29:51] Speaker 01:
What's your best case?

[00:29:54] Speaker 01:
On the discrimination and then your best case on rehabilitation, why we don't have to send this back to district court?

[00:29:59] Speaker 02:
I don't think this was an adverse employment action to begin with.

[00:30:03] Speaker 02:
This wasn't someone who had a lucrative territory, was hitting the ball out of the park and assigned a dismal thing.

[00:30:09] Speaker 02:
Mr. Sampson was struggling before with his sales.

[00:30:14] Speaker 02:
Before any of this, before the change was made, he himself testified in his deposition that

[00:30:21] Speaker 02:
He didn't particularly like his vertical.

[00:30:23] Speaker 02:
He didn't think it was all that great to begin with.

[00:30:26] Speaker 02:
He had the progression of letter of concern to the letter of warning, to the final letter of warning.

[00:30:33] Speaker 02:
He was struggling.

[00:30:35] Speaker 02:
This change put him in a position where he had significantly more accounts, approximately double the amount of accounts as the next closest sales representative.

[00:30:47] Speaker 02:
Most importantly, I think, before Mr. Reed made the final decisions, he consulted with Polanco, who did the Robin Hood analysis, which as a result of the change, he was moving into a territory that Robin Hood had evaluated as okay.

[00:31:06] Speaker 02:
That was an upgrade from his poor.

[00:31:08] Speaker 02:
So I just don't envision this as an adverse employment action to begin with.

[00:31:12] Speaker 02:
And then we cited several reasons.

[00:31:14] Speaker 02:
I won't talk about them here.

[00:31:15] Speaker 02:
I'm running out of time.

[00:31:16] Speaker 02:
that suggests that Reed did not have a discriminatory animus, I think.

[00:31:21] Speaker 02:
Okay.

[00:31:21] Speaker 02:
Your time is up.

[00:31:22] Speaker 02:
Let me ask my colleagues have additional questions.

[00:31:24] Speaker 01:
All right.

[00:31:24] Speaker 01:
Thanks to both counsel for your argument.

[00:31:26] Speaker 01:
We appreciate it.

[00:31:27] Speaker 01:
Case just argued is submitted.

[00:31:29] Speaker 01:
Thank you very much.