[00:00:00] Speaker 00:
Are you ready for me, Your Honor?

[00:00:01] Speaker 00:
We're ready for you.

[00:00:10] Speaker 00:
Good morning, Judge Baya, Judge Christin, and welcome back to Las Vegas, the ninth island of Hawaii, to Judge Bennett.

[00:00:20] Speaker 00:
Thank you for coming here.

[00:00:22] Speaker 00:
My name is Robert Spretnack.

[00:00:24] Speaker 00:
I am the attorney for the plaintiff appellant, Nicole Foster, in this matter.

[00:00:29] Speaker 00:
This matter is an FMLA.

[00:00:32] Speaker 00:
case on the interference and retaliation strands of the FMLA, with some ADA issues also involved.

[00:00:40] Speaker 00:
The primary thrust of the case is the FMLA issue, and the preliminary issue for the FMLA is whether or not we have presented evidence of a genuine issue of material fact with regard to the issue of willfulness.

[00:00:57] Speaker 00:
And willfulness is a very difficult issue to decide as a matter of law.

[00:01:01] Speaker 00:
And we believe that Ms.

[00:01:03] Speaker 00:
Foster has presented very significant evidence that the violation of the FMLA was willful.

[00:01:10] Speaker 04:
What was that evidence?

[00:01:14] Speaker 00:
The evidence of that would be number one that there was an email directive sent out that she was to use her paid time when she took her intermittent FMLA.

[00:01:24] Speaker 03:
Why is that willful as opposed to being a mistake that was corrected really very promptly?

[00:01:30] Speaker 00:
the totality of the circumstances and the fact that she ended up being fired within a couple of days.

[00:01:36] Speaker 00:
And there's actually a very recent, and Judge Baia was on the panel, so I know he's aware of the Maya.

[00:01:44] Speaker 04:
I don't usually pronounce my name Baia.

[00:01:47] Speaker 00:
OK.

[00:01:47] Speaker 00:
I'm sorry.

[00:01:48] Speaker 04:
Bea.

[00:01:50] Speaker 00:
And I can't even use the excuse that my studying Portuguese destroyed my Spanish pronunciation.

[00:01:55] Speaker 04:
Even in Portuguese, it wouldn't work.

[00:01:57] Speaker 00:
No, no.

[00:01:58] Speaker 00:
The O's and the OO's at the end are the difference, but not.

[00:02:00] Speaker 03:
OK, so you were saying that evidence of Will Smithness includes an email directing that her pay be docked.

[00:02:07] Speaker 03:
That's my word.

[00:02:08] Speaker 00:
Yeah, that Dale Mason, who she had a history of trouble with.

[00:02:12] Speaker 03:
What other evidence?

[00:02:13] Speaker 00:
OK, she had a long history of problems with Mason.

[00:02:15] Speaker 00:
Mason was the fill-in supervisor and docked her pay.

[00:02:20] Speaker 00:
And then after she told her regular supervisor, Terrence Taylor, of the problem, Terrence Taylor said that they will talk, he and the vice presidents,

[00:02:36] Speaker 00:
We'll talk to Mason about his problems that he had with her FMLA time.

[00:02:50] Speaker 03:
Is there other evidence of willfulness?

[00:02:52] Speaker 00:
Well, and the fact that then she was fired after doing the complaint was evidence that they knew that they had violated.

[00:02:59] Speaker 00:
Mason knew that he had violated the law.

[00:03:03] Speaker 00:
And the company lied about the reasons for her termination, which is another... I'm sorry, lied about the reasons for her termination, which is... Back up, coming back up.

[00:03:12] Speaker 03:
So she was terminated, but at that point, we're trying to get through Judge Bea's question about evidence of willfulness, and you're citing the fact that she was terminated.

[00:03:23] Speaker 03:
So Mason didn't have anything to do with her termination.

[00:03:26] Speaker 03:
He wasn't a decision maker.

[00:03:27] Speaker 00:
Oh, Mason was central to her termination.

[00:03:30] Speaker 03:
I asked a different question.

[00:03:32] Speaker 00:
Okay.

[00:03:32] Speaker 03:
Did he participate in the decision to terminate her?

[00:03:35] Speaker 03:
He's not identified on that list.

[00:03:39] Speaker 00:
He was the one who got the statements that got her fired and the company lied about his involvement in getting the statements.

[00:03:46] Speaker 03:
Sir, you're not answering my question.

[00:03:47] Speaker 03:
I think he's not identified.

[00:03:48] Speaker 03:
Do you have any evidence he participated in that termination decision?

[00:03:52] Speaker 03:
I understand there's this other

[00:03:54] Speaker 03:
And I don't mean this pejorative.

[00:03:55] Speaker 03:
There's this other conspiracy, this thought that he was behind cooking up these false allegations.

[00:03:59] Speaker 03:
I'm going to set that aside for a minute just for purposes of clarity of the record.

[00:04:04] Speaker 03:
My understanding is that Mason did not participate in the decision to fire her and that the people who did cited the results of the investigation that indicated your client made some racist and homophobic comment.

[00:04:20] Speaker 00:
You are correct that there is nothing in the record actually putting Mason at the scene of the termination, but there is plenty of evidence of his involvement in the termination.

[00:04:30] Speaker 00:
What is that, please?

[00:04:32] Speaker 00:
The fact that he got the statements.

[00:04:35] Speaker 00:
The statements were, at least one of them was actually referring to that it was being given to Mason, even though Vera, the HR person, Vera

[00:04:50] Speaker 03:
She testified those statements came to her directly when she appeared.

[00:04:55] Speaker 00:
Correct.

[00:04:55] Speaker 00:
And that was absolutely false.

[00:04:57] Speaker 03:
Okay.

[00:04:57] Speaker 00:
So the fact that they felt the need to cover up Mason's involvement.

[00:05:02] Speaker 04:
Who felt that?

[00:05:03] Speaker 04:
The problem is that there's a dysfunction, a disconnection in your case.

[00:05:08] Speaker 04:
You have claims that Mason and Yanez Tournerie put together some lies about Foster.

[00:05:18] Speaker 04:
Let's suppose that's true.

[00:05:21] Speaker 04:
Take that as true.

[00:05:22] Speaker 04:
What is the connection between those falsely produced documents and the decision-makers?

[00:05:34] Speaker 04:
If the decision-makers didn't know that that was false and weren't in cahoots with Mason and Yarnes Tournay, your argument fails.

[00:05:46] Speaker 00:
But I would disagree with the first prong of your statement.

[00:05:49] Speaker 00:
The company knew that it was a lie because they lied.

[00:05:53] Speaker 00:
I'm sorry.

[00:05:54] Speaker 04:
What is the evidence that the decision makers at Credit One knew it was a lie?

[00:06:01] Speaker 04:
Page, please.

[00:06:02] Speaker 00:
There is no evidence that the decision maker actually talked to the people submitting the statements.

[00:06:09] Speaker 04:
Talk to it.

[00:06:10] Speaker 04:
What's the evidence that the decision makers knew the evidence was phony?

[00:06:15] Speaker 04:
Where?

[00:06:18] Speaker 00:
Vera Yanez-Turigny was involved in the termination process, talking to her boss, Megan Lago.

[00:06:29] Speaker 04:
Is there any evidence that the decision makers knew that the evidence was phony?

[00:06:35] Speaker 04:
And if it is, point it out to me.

[00:06:38] Speaker 00:
OK.

[00:07:09] Speaker 00:
We really don't have clear evidence of who all was involved in the decision.

[00:07:13] Speaker 04:
I'm not talking about clear evidence.

[00:07:14] Speaker 04:
I'm talking about any evidence.

[00:07:16] Speaker 00:
Okay.

[00:07:16] Speaker 00:
Well, I was going to say the best piece of evidence we have is what I've discussed, that Vera Yanez-Turigny was involved in the termination decision.

[00:07:24] Speaker 04:
That's the conclusion, was involved.

[00:07:26] Speaker 04:
A investigator collects evidence.

[00:07:32] Speaker 04:
He's a phony.

[00:07:33] Speaker 04:
He's on the take.

[00:07:34] Speaker 04:
He's a bad guy.

[00:07:35] Speaker 04:
Right?

[00:07:36] Speaker 00:
Yes.

[00:07:36] Speaker 04:
But he presents that evidence to an impartial group that has no idea that it is phony and that he's a bad guy.

[00:07:45] Speaker 04:
They're not in with the investigator.

[00:07:48] Speaker 04:
that group determines the facts based on the investigation.

[00:07:54] Speaker 04:
Tell me, what is the connection between the phony investigator and the decider in this case?

[00:07:59] Speaker 00:
That's all.

[00:08:00] Speaker 00:
Well, one of the connections would be, of course, the long history that Ms.

[00:08:03] Speaker 00:
Foster had of having problems with Mr. Mason that everybody involved in the decision was well aware of.

[00:08:09] Speaker 01:
But, counsel, on that point, I'm a little bit confused by that argument.

[00:08:15] Speaker 01:
I mean, I'm looking

[00:08:17] Speaker 01:
at some of the evidence in the record about prior problems before the alleged phony story incident.

[00:08:30] Speaker 01:
So I'm looking at a corrective action report from 2013, I'm looking at another corrective action report from 2009, a corrective action report from 2016, and I see nothing in the record

[00:08:47] Speaker 01:
And I can give you the page sites, SER233, SER228, starting SER244.

[00:08:59] Speaker 01:
And I see nothing in the record to indicate that those problems with your client, in which Mr. Mason was her supervisor, that there's anything in the record to suggest that those were phony.

[00:09:12] Speaker 01:
Am I missing something?

[00:09:15] Speaker 00:
Yes, in Ms.

[00:09:18] Speaker 00:
Foster's affidavit and Ms.

[00:09:20] Speaker 00:
Foster's deposition testimony.

[00:09:25] Speaker 00:
She discusses the long history of issues that she had with Mason and that Mason was doing these things to her to prevent her from earning performance bonuses.

[00:09:38] Speaker 00:
And so there's testimony in the record on that.

[00:09:41] Speaker 01:
But is there anything where she says, no, I didn't display an unprofessional and abrasive tone when responding

[00:09:48] Speaker 01:
to a cardholder.

[00:09:54] Speaker 01:
No, I didn't say to somebody, we can handle it outside if you don't like what's going on.

[00:10:01] Speaker 01:
I mean, maybe it's there and I missed.

[00:10:03] Speaker 00:
in the record.

[00:10:04] Speaker 00:
The company has been adamant that it was that single incident involving the two statements that was the grounds for termination.

[00:10:11] Speaker 00:
So that wasn't something we explored in putting together the record.

[00:10:15] Speaker 00:
But the record does discuss Ms.

[00:10:17] Speaker 00:
Foster complaining about the harassment and bullying from Mason and in earlier in 2018 actually getting removed

[00:10:26] Speaker 00:
actually going out on FMLA leave because of the harassment and bullying from him.

[00:10:31] Speaker 00:
And then when she returned, she was then under Terrence Taylor, a new supervisor.

[00:10:36] Speaker 00:
So that part is well-developed in the record.

[00:10:39] Speaker 00:
But your particular point, because that didn't factor in the determination, we did not develop the record on that point.

[00:10:48] Speaker 00:
OK.

[00:10:50] Speaker 00:
but getting back to the issue of the evidence of that they knew that there was a long history of Mason they never actually confronted her with the allegation against her they never took we didn't know until the unemployment hearing several months later and it was these two statements was the grounds for termination how can you refute and give your version of what happened when you're not even told what the allegations are against you wasn't given a reason for her termination

[00:11:19] Speaker 00:
that not that it was those particular two statements that she'd used the n-word and had used a homophobic slur.

[00:11:26] Speaker 03:
What was she told about the reason for her termination?

[00:11:30] Speaker 00:
Well, the termination notice is in the record.

[00:11:33] Speaker 03:
was there anything else other than the termination notice we've seen in the record?

[00:11:36] Speaker 01:
No, that's it.

[00:11:37] Speaker 01:
But the termination notice says, am I at the wrong place?

[00:11:41] Speaker 01:
Two employees reported inappropriate offensive conduct relating to sexual orientation and race made by Nicole regarding another supervisor.

[00:11:52] Speaker 01:
Human Resources conducted a full investigation and it was determined to sever employment with Nicole.

[00:11:57] Speaker 01:
She didn't have that when she was terminated?

[00:11:59] Speaker 00:
She was just told about offensive comments.

[00:12:03] Speaker 00:
She wasn't told who said them, what the comments were, what the context was, when they supposedly were made, because there's very important evidence of that where supposedly it happened in the lunchroom, and Ms.

[00:12:15] Speaker 00:
Foster's been adamant that she didn't even eat lunch in the lunchroom.

[00:12:18] Speaker 01:
Help me on one other point.

[00:12:19] Speaker 01:
When I'm looking at this,

[00:12:21] Speaker 01:
It says under employee acknowledgement and this is all dated 12, 21, 18, employee did not sign.

[00:12:30] Speaker 01:
Is there evidence in the record like through your client's declaration that on December 21, 2018 when this is dated, no one even showed it to her or asked her to sign it?

[00:12:45] Speaker 00:
That I don't know, but I do know that she was, at the time of termination, after the termination decision was made, she was told it was in general about offensive comments, but no specific details about who accused her of it, when it was, what they were in reference to.

[00:13:03] Speaker 00:
And again, that did not come out to the unemployment hearing.

[00:13:07] Speaker 00:
So I would take issue with their statement of that there was a full investigation because they never confronted Ms.

[00:13:13] Speaker 00:
Foster with the allegations against her.

[00:13:15] Speaker 00:
It was kind of clear, and this again is evidence of willfulness, that there was a predetermined outcome.

[00:13:21] Speaker 00:
And it was a railroading based upon a predetermined outcome of solving this Mason and Foster issue that had been festering for many years.

[00:13:32] Speaker 00:
and solving it by getting rid of the non-supervisory employee.

[00:13:38] Speaker 00:
And therefore, that's the evidence of willfulness.

[00:13:40] Speaker 00:
I see my time is up.

[00:13:41] Speaker 00:
Any further questions or we'll wait for rebuttal on the further questions.

[00:13:45] Speaker 03:
It doesn't appear there are further questions at this time.

[00:13:48] Speaker 00:
Okay.

[00:13:48] Speaker 00:
And I will reserve what time I have left for the rebuttal, if I have any, for the rebuttal.

[00:13:52] Speaker 03:
You do.

[00:13:53] Speaker 03:
That's fine.

[00:13:53] Speaker 00:
Okay.

[00:13:55] Speaker 03:
You have about a minute and a half, a little more than that.

[00:13:59] Speaker 03:
We'll hear from opposing counsel, please.

[00:14:10] Speaker 02:
Good morning, Your Honors.

[00:14:12] Speaker 02:
May it please the court, Noel Mitsuko Hernandez on behalf of Credit One.

[00:14:17] Speaker 02:
Credit One terminated Ms.

[00:14:19] Speaker 02:
Foster after... Ms.

[00:14:20] Speaker 04:
Hernandez, would you pick up on the last statement that your learned friend made that Foster was never confronted with the statements of her using the N-word and the homosexual slur?

[00:14:37] Speaker 02:
Yes, Your Honor.

[00:14:38] Speaker 04:
Is that correct?

[00:14:40] Speaker 02:
I'm sorry.

[00:14:40] Speaker 02:
No, Your Honor.

[00:14:41] Speaker 02:
In the record.

[00:14:42] Speaker 02:
We do have investigation notes where the two employees who reported this incident.

[00:14:49] Speaker 02:
They were independently interviewed and confirmed that she said these things and Miss Foster was also interviewed question.

[00:14:56] Speaker 02:
Oh, Miss Foster was also interviewed.

[00:14:59] Speaker 02:
And it's part of the investigation record.

[00:15:08] Speaker 02:
And she was also provided with her termination notice, which it was indicated she refused to sign.

[00:15:15] Speaker 04:
And does the termination notice mention the particular slurs?

[00:15:21] Speaker 02:
The termination notice does not reference the particular slurs.

[00:15:25] Speaker 02:
But in the interview notes, Ms.

[00:15:29] Speaker 02:
Foster does deny.

[00:15:30] Speaker 02:
She says, I did not say those things.

[00:15:33] Speaker 02:
So I believe that.

[00:15:35] Speaker 02:
In her interview, she was told what was reported that she said.

[00:15:41] Speaker 01:
So do these interview notes that you reference, did they indicate that the plaintiff was told who the alleged witnesses were to the slurs?

[00:16:03] Speaker 01:
typically in these types of I'm not asking typically I'm asking what the record is.

[00:16:10] Speaker 02:
There's no evidence in the record that miss Foster was told who reported and that's common.

[00:16:16] Speaker 01:
It was trying to keep it confidential is there any evidence in the record that she was told specifically what the slurs were.

[00:16:24] Speaker 01:
No your honor there any evidence in the record that she was told what date the alleged slurs that occurred.

[00:16:32] Speaker 02:
I don't believe so, but I believe she would turn from her FMLA leave December 18 and she was interviewed December 20.

[00:16:44] Speaker 02:
So she would have known it was within that timeframe.

[00:16:48] Speaker 03:
She would have known that somebody said, that she said words that were offensive because they were a racial slur and a homophobic slur and she doesn't, did she know who they were about?

[00:16:59] Speaker 03:
To whom they were directed?

[00:17:02] Speaker 03:
I believe so.

[00:17:04] Speaker 03:
I'm just trying to figure out how she's supposed to respond to this.

[00:17:07] Speaker 03:
If she doesn't know who said, who's accused her of what exactly?

[00:17:11] Speaker 02:
She denies saying these things in her interview notes.

[00:17:17] Speaker 02:
It says she denies saying this.

[00:17:19] Speaker 02:
So she must have been told what was said and about who.

[00:17:25] Speaker 04:
Pardon me, she denies making slurs.

[00:17:28] Speaker 04:
Yes.

[00:17:28] Speaker 04:
But I'm not clear on your response as to whether she was ever told what the slurs were.

[00:17:36] Speaker 04:
And did she deny making those specific slurs?

[00:17:40] Speaker 04:
Or was she also told you were accused of making slurs?

[00:17:52] Speaker 02:
Your Honor,

[00:17:54] Speaker 02:
I'm not sure.

[00:17:55] Speaker 02:
I don't have the questions that were asked during the interview.

[00:18:00] Speaker 04:
But you have the record.

[00:18:01] Speaker 02:
Yes.

[00:18:03] Speaker 04:
Point to me anywhere in the record where a reasonable fact finder could find that she was informed of the specific slurs of which she was accused.

[00:18:19] Speaker 02:
The best evidence I have is her interview notes.

[00:18:25] Speaker 04:
At 185 note 192.

[00:18:28] Speaker 02:
Yes.

[00:18:30] Speaker 04:
All right, I'll take a look.

[00:18:32] Speaker 04:
Go ahead.

[00:18:33] Speaker 02:
Okay.

[00:18:36] Speaker 02:
So Credit One received these reports where she called her prior supervisor the n-word and the f-word.

[00:18:43] Speaker 02:
They immediately conducted a full and thorough investigation.

[00:18:48] Speaker 02:
They interviewed both employees who reported this conduct

[00:18:53] Speaker 02:
They both independently confirmed that she did in fact say these things about her prior supervisor in violation of company policy.

[00:19:02] Speaker 02:
And that is the legitimate non-discriminatory reason for her termination.

[00:19:09] Speaker 02:
Now, Ms.

[00:19:10] Speaker 02:
Foster has brought claims of ADA discrimination, ADA retaliation, and FMLA interference.

[00:19:17] Speaker 02:
However, at her deposition, she testified that she does not believe her medical condition or FMLA leave had anything to do with her termination.

[00:19:29] Speaker 02:
And on that basis alone, this court should affirm summary judgment on behalf of Credit One.

[00:19:36] Speaker 02:
Now turning to the ADA discrimination claim, there is no causal connection between her alleged medical condition and her termination, and she admits this at her deposition.

[00:19:51] Speaker 02:
and the company had a legitimate non-discriminatory reason for its termination decision.

[00:19:58] Speaker 02:
There's no evidence in the record that there was any scheme to get Ms.

[00:20:04] Speaker 02:
Foster fired, and there's no evidence in the record that Credit One was complicit in this scheme, or that this scheme had anything to do with her alleged medical condition or FMLA leave.

[00:20:21] Speaker 02:
There's no evidence of any agreement between any of the employees or anything like that.

[00:20:28] Speaker 02:
Ms.

[00:20:28] Speaker 02:
Foster merely points to the fact that the reports were made to Mr. Mason.

[00:20:34] Speaker 02:
However, that's pretty common.

[00:20:38] Speaker 02:
If you hear something offensive, you report it to your supervisor and they report it to HR.

[00:20:45] Speaker 02:
And the court should look at the fact that Credit One did an independent investigation.

[00:20:52] Speaker 02:
Mason was not involved in the investigation, and Mason was not involved in the termination decision.

[00:21:02] Speaker 02:
And as long as the termination decision is based on facts supported by substantial evidence and Credit One reasonably believe those facts to be true, neither this court nor a jury can second guess Credit One's business decision.

[00:21:19] Speaker 02:
Now turning to Ms.

[00:21:22] Speaker 02:
Foster's ADA retaliation claim,

[00:21:26] Speaker 02:
I'm going to go back to the

[00:21:33] Speaker 02:
complained about any violations of the ADA.

[00:21:37] Speaker 02:
She complained about Mr. Mason on two occasions, neither of which had to do with the ADA.

[00:21:43] Speaker 02:
Her first complaint occurred during her first FMLA leave in July 2018.

[00:21:49] Speaker 02:
She complained that she did not like his managerial style.

[00:21:54] Speaker 02:
She felt he was too young.

[00:21:58] Speaker 02:
And okay, she felt he was too young and that he could not handle the attitudes of the representatives that he supervised.

[00:22:07] Speaker 02:
She also said that because they used to be competition together, now that he is her manager, he doesn't know how to manage her and it created friction between them.

[00:22:19] Speaker 02:
So after she returned from her leave,

[00:22:23] Speaker 01:
Council, I want to go back to the point we were discussing before.

[00:22:27] Speaker 01:
I'm looking at your friend's opening brief at page 14.

[00:22:32] Speaker 01:
And he's citing either the plaintiff's declaration or deposition.

[00:22:40] Speaker 01:
And he's describing in here and citing ER 33, a conversation with the supervisor

[00:22:52] Speaker 01:
and said, I told Megan that I never said anything about my former supervisor.

[00:22:58] Speaker 01:
She said that we have two people who said you said some things about Dale Mason, that we have to suspend you, and that we are going to have an investigation.

[00:23:09] Speaker 01:
Is there anything in the record that you can point us to where during this interview with Megan,

[00:23:18] Speaker 01:
Megan told her what the alleged derogatory remarks were that she had allegedly made about Mr. Mason, other than, we have two people who said you said some things about Dale Mason and we have to suspend you.

[00:23:44] Speaker 02:
There is nothing in the record that states what Ms.

[00:23:57] Speaker 02:
Lago said to her in their interview.

[00:24:00] Speaker 04:
OK.

[00:24:02] Speaker 04:
With the interview notes that some of them talk about direct statements, were those made available to Ms.

[00:24:14] Speaker 04:
Foster?

[00:24:16] Speaker 02:
investigation.

[00:24:20] Speaker 02:
That is.

[00:24:25] Speaker 02:
The interview notes.

[00:24:28] Speaker 02:
Are usually never provided in these

[00:24:36] Speaker 02:
protect the confidentiality of the informants.

[00:24:42] Speaker 02:
So these investigation notes would not have been handed over.

[00:24:45] Speaker 02:
They're confidential as part of the investigation.

[00:24:48] Speaker 02:
And Your Honors, Ms.

[00:24:52] Speaker 02:
Foster denied making any derogatory, using any derogatory language in the workplace.

[00:25:00] Speaker 02:
But we have two independent employees who have

[00:25:04] Speaker 02:
There's no evidence of a scheme.

[00:25:06] Speaker 02:
They reported this conduct.

[00:25:10] Speaker 02:
Credit One independently interviewed them.

[00:25:13] Speaker 02:
They both confirmed that this did occur.

[00:25:16] Speaker 01:
Although that may well be true, counsel, but it just seems strange to me that you have a longtime employee and there are very specific reasons that you're firing her.

[00:25:29] Speaker 01:
I mean, it's not in this case, but you stole $87.

[00:25:33] Speaker 01:
You falsified your time records.

[00:25:38] Speaker 01:
You threatened an employee.

[00:25:40] Speaker 01:
Here it is very specific.

[00:25:44] Speaker 01:
of the company's policies and offensive, but it's just strange to me that when you're going to be taking this kind of an action, you

[00:26:01] Speaker 01:
you don't tell the person what it is they're supposed to have done because it strikes me as very hard to defend against allegations where you don't even know what they are.

[00:26:13] Speaker 01:
And you're saying that is the standard policy that when someone is accused of misconduct toward fellow employees, they're not told precisely what it is that they're alleged to have done?

[00:26:30] Speaker 02:
I'm saying that the employees who reported the conduct, those identities are usually not shared.

[00:26:43] Speaker 02:
The interview notes do not say whether Ms.

[00:26:46] Speaker 02:
Lago told Ms.

[00:26:48] Speaker 02:
Foster, the derogatory terms, that she said she says she's denying.

[00:26:55] Speaker 02:
In the interview note, she says she denies making these statements.

[00:26:59] Speaker 02:
So a reasonable inference, we could assume that she was told what was alleged against her.

[00:27:06] Speaker 01:
I don't see that.

[00:27:08] Speaker 01:
I mean, she says.

[00:27:10] Speaker 01:
hear what it is she was told.

[00:27:13] Speaker 01:
We have two people who said you said some things about Dale Mason.

[00:27:17] Speaker 01:
We have to look at the evidence in the light most favorable to her, right?

[00:27:23] Speaker 02:
Yes, Your Honor.

[00:27:27] Speaker 02:
But even if she was told specifically, it was reported that you said the N-word and the F-word,

[00:27:34] Speaker 02:
she would have denied those things.

[00:27:36] Speaker 02:
She denies it in her interview that she made any derogatory statements towards Mr. Mason.

[00:27:43] Speaker 03:
So we rely on... Does it matter to whom she directed the comment if she used the N-word about a co-worker?

[00:27:50] Speaker 02:
No, Your Honor.

[00:27:51] Speaker 02:
Any obscene language in the workplace is a violation of company policy.

[00:27:56] Speaker 01:
I don't have any problem with that.

[00:27:58] Speaker 01:
I'm sorry.

[00:27:58] Speaker 02:
No, that's all right.

[00:27:59] Speaker 01:
Go ahead.

[00:28:00] Speaker 01:
My issue is an inference that this was a predetermined outcome

[00:28:09] Speaker 01:
because she wasn't specifically told what she had allegedly done, that looking at the evidence in the light most favorable and on the evidence here, I see your friend's point that if she isn't even told what it is exactly that she has done, that maybe there's an inference there that this is all cooked up.

[00:28:39] Speaker 02:
Your Honor, in order for this scheme to be a part of any ADA discrimination, FMLA retaliation claim, the motive has to be because she had a medical condition or because she took FMLA leave.

[00:28:55] Speaker 02:
And there's nothing in the record that anybody had any discriminatory animus towards her due to these things.

[00:29:02] Speaker 03:
Could I ask you, you've called our attention to these notes.

[00:29:05] Speaker 03:
They're handwritten notes.

[00:29:06] Speaker 03:
I'm looking at 187, 188, and 189 in particular.

[00:29:12] Speaker 03:
Whose handwriting is this?

[00:29:13] Speaker 03:
Maybe I'm misunderstanding the authorship of these notes.

[00:29:16] Speaker 02:
Those are Ms.

[00:29:17] Speaker 02:
Lago's interview notes.

[00:29:19] Speaker 02:
She was the HR director.

[00:29:21] Speaker 02:
Who interviewed who?

[00:29:23] Speaker 02:
She interviewed the two employees who reported the conduct, which was Ebony White and David Tillman.

[00:29:30] Speaker 02:
She interviewed Ms.

[00:29:32] Speaker 02:
Foster.

[00:29:33] Speaker 03:
Okay, so on 189, then, there's the reference.

[00:29:36] Speaker 03:
There's an N-word.

[00:29:37] Speaker 03:
about called him this word, but it says David Tillman at the top.

[00:29:41] Speaker 03:
So I should understand that he's telling the HR person that this happened.

[00:29:45] Speaker 03:
Okay.

[00:29:46] Speaker 03:
So I'm looking now for the page that would have been the interview notes for the plaintiff, Ms.

[00:29:55] Speaker 03:
Foster.

[00:29:56] Speaker 03:
I see Ebony White on the top of another page.

[00:29:58] Speaker 03:
I think I have been misinterpreting these notes.

[00:30:00] Speaker 03:
And I don't see where the written notes that

[00:30:06] Speaker 03:
relate to interviewing Ms.

[00:30:09] Speaker 03:
Foster?

[00:30:11] Speaker 02:
I believe it would be page 192.

[00:30:14] Speaker 02:
I think it's towards the end.

[00:30:18] Speaker 03:
Well, that's a one-line statement from Rosalina Williams.

[00:30:26] Speaker 03:
It says it was brought to my attention about Ms.

[00:30:27] Speaker 03:
Nicole and whether she had her FMLA hours.

[00:30:34] Speaker 03:
That's not a handwritten note.

[00:30:38] Speaker 03:
an interview note.

[00:30:38] Speaker 03:
But you think that she was interviewed, Ms.

[00:30:41] Speaker 03:
Foster was interviewed, and that she denied making these statements.

[00:30:45] Speaker 03:
You've said that several times here today.

[00:30:47] Speaker 03:
One challenge I've got is that on ER 186, it looks like there's a sticky note.

[00:30:54] Speaker 03:
On top of the handwritten notes, it says derogatory comments.

[00:30:57] Speaker 03:
The sticky note itself says derogatory comments about something.

[00:31:03] Speaker 03:
Supervisor?

[00:31:05] Speaker 03:
We have factual statements.

[00:31:08] Speaker 03:
It's hard to read the rest of this note, but it's on top of some of the text.

[00:31:11] Speaker 03:
Does that correlate to the interview notes with Ms.

[00:31:16] Speaker 03:
Foster?

[00:31:19] Speaker 02:
Yes, it's part of the investigation file and part of her investigation.

[00:31:23] Speaker 03:
So ER 185, at the top of the page, it says Nicole Foster.

[00:31:26] Speaker 03:
Should I understand that those notes are an HR person interviewing Ms.

[00:31:30] Speaker 03:
Foster?

[00:31:31] Speaker 03:
Yes.

[00:31:32] Speaker 03:
OK, so she says she hasn't made any derogatory comments.

[00:31:35] Speaker 03:
It's the first thing she said, right?

[00:31:36] Speaker 03:
Yes.

[00:31:38] Speaker 04:
I have one question, picking up on the response that you gave to Judge Bennett.

[00:31:45] Speaker 04:
I take it your position is that even if this was an unfair

[00:31:51] Speaker 04:
termination proceeding because she wasn't told about the specific claims so that she could rebut them.

[00:32:01] Speaker 04:
There was no evidence that her termination was motivated in any way because of her actions in taking family leave or claiming ADA disability.

[00:32:14] Speaker 04:
Is that your point?

[00:32:16] Speaker 02:
Yes, Your Honor.

[00:32:16] Speaker 04:
Thank you.

[00:32:17] Speaker 04:
I'm glad I got it.

[00:32:21] Speaker 03:
His theory is that, and it's a bit convoluted, it took me a while to trace this through, his theory, I think plaintiff's theory, is that there was not a legitimate nondiscriminatory reason.

[00:32:31] Speaker 03:
That the company is claiming that these slurs were the legitimate nondiscriminatory reason, and he's arguing pretext, I think.

[00:32:39] Speaker 03:
And that really what we should understand is that there's a question of fact about whether this was cooked up.

[00:32:44] Speaker 03:
What is your best response to that?

[00:32:47] Speaker 02:
There's no evidence of any conspiracy theory.

[00:32:52] Speaker 02:
And he needs evidence in order to defeat summary judgment.

[00:32:58] Speaker 02:
And there's nothing in the record that there is any agreement between the parties.

[00:33:03] Speaker 02:
The HR director independently confirmed that Ms.

[00:33:08] Speaker 02:
Foster said these words.

[00:33:12] Speaker 02:
And even if

[00:33:15] Speaker 02:
She was mistaken, even if the HR director was mistaken.

[00:33:18] Speaker 02:
The HR director needs to be able to rely on these witness statements.

[00:33:26] Speaker 02:
And she reasonably believed that these were true.

[00:33:29] Speaker 02:
And this court nor jury can second guess Credit One's business decision when their decision was based on reasonable facts.

[00:33:41] Speaker 03:
So your point is they could have been wrong.

[00:33:43] Speaker 03:
They could have been wrong.

[00:33:44] Speaker 03:
They could have been relying on a faulty investigation, but they weren't discriminatory.

[00:33:47] Speaker 03:
That's what I hear you saying.

[00:33:48] Speaker 03:
That's what I understood your brief to be arguing.

[00:33:52] Speaker 02:
Yes, they could have been wrong, but that does not defeat summary judgment.

[00:33:56] Speaker 02:
There's no discriminatory animus here.

[00:33:58] Speaker 03:
Thank you.

[00:33:59] Speaker 02:
Thank you.

[00:34:08] Speaker 00:
First, I want to thank you, Judge Kristen, for accurately summarizing my argument more succinctly than I did on the pretext issue, that that is the issue.

[00:34:17] Speaker 00:
And this was a kangaroo court.

[00:34:19] Speaker 00:
I mean, look at David Tillman's investigatory notes at ER 189.

[00:34:23] Speaker 00:
In his email, he talks about Nicole Foster said that Mason only messes with N-words, referring to herself as being one of the people that he messes with.

[00:34:37] Speaker 00:
Suddenly, in the investigatory notes, Tillman is telling Megan Lago she was calling Mason the N-word.

[00:34:43] Speaker 00:
I mean, that's a significant escalation.

[00:34:45] Speaker 00:
I mean, it's still wrong to use the N-word in the workplace.

[00:34:48] Speaker 00:
But it's one thing to use it referring to yourself, which was Ebony White and David Tillman's email to Dale Mason and Vera Yanis-Turigny.

[00:35:00] Speaker 00:
But all of a sudden in the investigatory, he's saying she called her.

[00:35:04] Speaker 00:
Are she called Mason the N-word?

[00:35:06] Speaker 00:
That's escalation.

[00:35:07] Speaker 00:
There's obviously, like I said, it's a kangaroo court.

[00:35:11] Speaker 00:
Things are getting phonied up very quickly.

[00:35:14] Speaker 00:
And if you look at the notes on Ms.

[00:35:16] Speaker 00:
Foster's conversation, page 185, the only thing that's told to her is derogatory.

[00:35:22] Speaker 00:
She only made derogatory comments.

[00:35:25] Speaker 00:
So in the meantime, the allegations against her get progressively more and more fantastic, and she's never told what's going on.

[00:35:34] Speaker 00:
That is the evidence of pretext.

[00:35:35] Speaker 00:
And this happened very quickly.

[00:35:37] Speaker 00:
And so the recent decision that Judge Baia was involved in, the Meierkama v. Mayorkas decision 107, F4, 1054 from a couple of months ago,

[00:35:49] Speaker 00:
The timing here is immediate.

[00:35:51] Speaker 00:
She reports Mason's unlawful docking of her pay on FMLA, and suddenly this fantastic investigation, which she's not even told the details, is launched.

[00:36:04] Speaker 00:
She's not given a chance to really refute the evidence until her unemployment hearing several months later.

[00:36:09] Speaker 00:
And so that's the evidence of pretext.

[00:36:12] Speaker 00:
And the argument that it was violating confidentiality to tell her that she accused Mason of messing with N and used the homophobic slur against him, you can tell her that somebody said that without violating confidentiality.

[00:36:30] Speaker 00:
You may not say the names of who said it, but you can actually tell her the words

[00:36:35] Speaker 00:
and the place without violating confidentiality.

[00:36:38] Speaker 00:
So the argument that you couldn't do this because of confidentiality is completely specious and instead is evidence of pretext, because this was a kangaroo court that resulted in the problem of Nicole Foster and Allendale Mason butting heads repeatedly was solved by firing Nicole Foster after she complained about him violating her rights under the FMLA.

[00:37:03] Speaker 00:
immediately after that.

[00:37:05] Speaker 00:
And the ADA issue is because of the accommodation she needed was the intermittent FMLA.

[00:37:10] Speaker 00:
So there's an ADA overtone, but this is an FMLA case.

[00:37:13] Speaker 00:
And I thank you, Your Honors, for allowing me the chance to make oral argument in this.

[00:37:17] Speaker 03:
Thank you.

[00:37:18] Speaker 00:
Thank you.

[00:37:18] Speaker 03:
We'll take this case under advisement and go on to the final case on the oral argument calendar.