[00:00:00] Speaker 03:
With that, we will proceed to the last case on the argument calendar, Caselli versus Liberty Healthcare.

[00:00:40] Speaker 04:
Good morning, Your Honors.

[00:00:42] Speaker 04:
My name is David DeFerran, and I'm representing Sue Caselli, who's the plaintiff appellant in this case.

[00:00:49] Speaker 04:
This is a whistleblower.

[00:00:51] Speaker 03:
Counsel, could you speak a little closer?

[00:00:53] Speaker 03:
Move the microphone a little closer.

[00:00:54] Speaker 04:
This is a whistleblower sexual harassment discrimination case.

[00:00:59] Speaker 04:
And Sue is a lady who was hired and then promoted and then praised, but then

[00:01:10] Speaker 04:
He complained.

[00:01:11] Speaker 04:
She blew the whistle.

[00:01:12] Speaker 04:
She complained about sexual harassment and blew the whistle on the company's practices.

[00:01:17] Speaker 04:
And she was suddenly a pariah.

[00:01:19] Speaker 04:
She was ignored.

[00:01:23] Speaker 04:
She was.

[00:01:25] Speaker 04:
Disciplined.

[00:01:27] Speaker 04:
And she was fired.

[00:01:29] Speaker 02:
All it's a matter of.

[00:01:30] Speaker 02:
Oh, sorry.

[00:01:32] Speaker 02:
No, please.

[00:01:33] Speaker 05:
There seems to me one critical fact in this case that.

[00:01:38] Speaker 05:
And that is, does the appellant, how do you pronounce her name?

[00:01:45] Speaker 04:
Caselli.

[00:01:46] Speaker 04:
You can call her Sue.

[00:01:47] Speaker 05:
Does she dispute that this DDD, the state organization, wanted her off the project?

[00:01:56] Speaker 04:
Yes, she does.

[00:01:57] Speaker 04:
There's no evidence of that other than the Liberty's counsel argument.

[00:02:04] Speaker 04:
We can't, we don't know, and the court can't tell, but a jury should tell us what the legitimate reason was for firing Sue.

[00:02:12] Speaker 05:
But you had an obligation to come forth with some evidence to create a genuine issue of fact.

[00:02:20] Speaker 05:
And it seems as though you could have gone to the director of DDD or someone else to dispute that in deposition.

[00:02:29] Speaker 04:
Well, we submitted Sue's declaration, which is evidence.

[00:02:32] Speaker 04:
Her evidence needs to be believed, and all reasonable inference is drawn from that evidence.

[00:02:37] Speaker 05:
The plaintiff's declaration.

[00:02:39] Speaker 04:
And Liberty, in defense, really hasn't disputed what she claims in her declaration.

[00:02:46] Speaker 03:
I'm looking, for example, at an email at... Yes.

[00:02:51] Speaker 03:
I think it's er275-276 from Roberta Ellarston.

[00:02:56] Speaker 03:
She's the client, right?

[00:02:58] Speaker 03:
Pardon?

[00:02:58] Speaker 03:
She's the client, right?

[00:02:59] Speaker 03:
She's the one who

[00:03:00] Speaker 03:
Let's take yes yes and it says here sue after talking with staff last Friday in my discussion with doctor Peterson.

[00:03:08] Speaker 03:
I want to pull all Liberty staff from working directly with our individual staff.

[00:03:14] Speaker 03:
That is evidence that the district court could consider right of course.

[00:03:20] Speaker 03:
And of course it isn't that supportive of the defendants position is dependents evidence.

[00:03:29] Speaker 04:
but it's not definitive evidence.

[00:03:34] Speaker 04:
What was Liberty's reason for firing Sue?

[00:03:38] Speaker 04:
Ms.

[00:03:38] Speaker 04:
Obert says in her deposition that she decided to fire Sue when she received the July 22 email from the state.

[00:03:47] Speaker 04:
Then Sue was told when she was fired, you know,

[00:03:54] Speaker 04:
No one is saying that you did a bad job.

[00:03:55] Speaker 04:
That's completely antithetical to what Ms.

[00:03:58] Speaker 04:
Oberty had to say.

[00:03:58] Speaker 02:
But she wasn't fired for doing a bad job, per se.

[00:04:02] Speaker 02:
She was fired because the only client of the defendant here wanted her removed.

[00:04:10] Speaker 02:
And it appears to me that there is no evidence that their request was motivated by any discriminatory or retaliatory reason.

[00:04:23] Speaker 02:
It was motivated by interpersonal difficulties and by your client's dissemination to a bunch of people of an otherwise private email.

[00:04:36] Speaker 02:
That seemed to be the last straw.

[00:04:39] Speaker 02:
So why isn't, where do you come up with pretext in view of that?

[00:04:46] Speaker 04:
Well, because again, she, Ms.

[00:04:48] Speaker 04:
Obridge said she was fired for performance issues, or she decided to fire her for that.

[00:04:53] Speaker 04:
HR told her you didn't do a bad job when saying that.

[00:04:57] Speaker 04:
And then when we get into district court, the reason turns to the state wanted her gone.

[00:05:05] Speaker 04:
The state demanded her be fired.

[00:05:07] Speaker 04:
But the timing isn't right.

[00:05:09] Speaker 04:
The state argues that Liberty wanted her gone before Ms.

[00:05:18] Speaker 04:
Obert decided to fire her.

[00:05:20] Speaker 02:
The decision was made just a couple of days after, as I understand the record, excuse me, let me finish the question.

[00:05:29] Speaker 02:
Just a couple of days after the inappropriate dissemination of the criticisms from the state.

[00:05:39] Speaker 02:
Is that your understanding of the timing as well?

[00:05:42] Speaker 04:
That's not my understanding.

[00:05:44] Speaker 04:
I don't know what Liberty is arguing because they argue.

[00:05:48] Speaker 02:
I don't know what they're arguing.

[00:05:49] Speaker 02:
I'm looking at the record.

[00:05:51] Speaker 02:
July 23rd, Obert is contacted saying my concerns were not meant to be dispersed verbatim among the Liberty staff, but it had been.

[00:06:01] Speaker 02:
That's an ER 303.

[00:06:04] Speaker 02:
And then, as I understand it, Obert's decision was made

[00:06:11] Speaker 02:
just a day or two later, and that's an ER 325.

[00:06:15] Speaker 02:
So the timeline isn't, I guess that, I'm asking you whether you disagree with that timeline.

[00:06:22] Speaker 04:
Well, Liberty disagrees with its own timeline.

[00:06:26] Speaker 04:
Liberty says she was, that the state wanted her gone before, before those emails, before the conversation.

[00:06:33] Speaker 02:
And they resisted it apparently until she did this one precipitating act.

[00:06:37] Speaker 04:
Yeah, and that's another big fact question, Your Honor.

[00:06:39] Speaker 02:
Why is that a fact question?

[00:06:41] Speaker 04:
Well, because Sue did distribute the emails to her coworkers, but she was told to do that by Gibbs, the director of operations.

[00:06:49] Speaker 04:
She was told that.

[00:06:50] Speaker 04:
Gibbs has never denied that.

[00:06:52] Speaker 03:
Council, when I'm looking at your client's deposition at ER 334, regarding what your client was informed by Kate Herbert, your client testified, I remember her telling me

[00:07:06] Speaker 03:
that Roberta Elliston had a lack of faith in my ability to lead the project and that Ginny and Zane were backing her up, that's my recollection.

[00:07:14] Speaker 03:
Is there any evidence in the record that that was not what Roberta Elliston had communicated?

[00:07:23] Speaker 04:
No, Your Honor, but there's other evidence that contradicts that.

[00:07:27] Speaker 03:
Contradicts what?

[00:07:28] Speaker 04:
Contradicts that fact.

[00:07:31] Speaker 04:
There are facts in the record that contradict what Liberty claims was the reason it fired her.

[00:07:36] Speaker 03:
No, but is there evidence that contradicts that that is what they were told, that what your client was told was in fact what Liberty was told by the state?

[00:07:46] Speaker 04:
Yes.

[00:07:48] Speaker 04:
If you believe the testimony, yes.

[00:07:50] Speaker 03:
So there is evidence that suggests that they were lying to your client when they said that Roberta Elliston told them that there was a lack of faith?

[00:08:01] Speaker 04:
Well, it's not a matter of, I mean, Liberty knows what it was told and when it was told.

[00:08:09] Speaker 04:
And my position is that it shifts back and forth the reason why she was fired.

[00:08:16] Speaker 04:
Liberty says she was told, the state told Ms.

[00:08:19] Speaker 04:
Obert to fire Sue Caselli before the emails, the July 22 and 23 emails.

[00:08:27] Speaker 04:
Then it says,

[00:08:28] Speaker 04:
In its brief to this court, in subsequent conversations, quote unquote, liberty demanded that Sue be fired.

[00:08:37] Speaker 04:
It can't get its story straight.

[00:08:39] Speaker 04:
And these are facts that the jury must address.

[00:08:43] Speaker 04:
This is not a summary judgment case.

[00:08:45] Speaker 04:
This is a case full of fact questions, reasonable inferences from those facts that should go to a jury to see who's telling the truth and who isn't.

[00:08:57] Speaker 04:
Okay?

[00:08:59] Speaker 04:
Now, the last straw, as the district court said and Liberty says, was the June 22 email that Ms.

[00:09:09] Speaker 04:
Obert distributed to her co-workers.

[00:09:17] Speaker 04:
Judge, you call that improper, right?

[00:09:21] Speaker 04:
It wasn't improper.

[00:09:22] Speaker 04:
She was told to do it by Mr. Gibbs, the director of operations.

[00:09:26] Speaker 04:
She was told to do that.

[00:09:28] Speaker 04:
So at the very least,

[00:09:30] Speaker 04:
when the state complained about Liberty's job performance, Ms.

[00:09:37] Speaker 04:
Obert and the email said that's very inappropriate.

[00:09:40] Speaker 04:
Ms.

[00:09:41] Speaker 04:
Obert at the very least should have fessed up and said, well, Sue wasn't responsible for that.

[00:09:49] Speaker 04:
Mr. Gibbs told her to do it.

[00:09:51] Speaker 03:
I'm having trouble seeing how that is relevant if this was

[00:10:00] Speaker 03:
what the state told them and the state was unhappy and the only work your client was doing was for the state, why did Liberty have an obligation, even if you're right, to tell them no, no, no, it's not her fault?

[00:10:14] Speaker 03:
Why is there an obligation to do that?

[00:10:16] Speaker 03:
Why does that help establish pretext as the district court found

[00:10:22] Speaker 03:
that based on the undisputed evidence, this is what the state communicated.

[00:10:26] Speaker 03:
And this is basically the only client on this project.

[00:10:29] Speaker 03:
And our main goal is to keep the client happy, not to keep Ms.

[00:10:33] Speaker 03:
Caselli happy.

[00:10:34] Speaker 04:
That's true.

[00:10:35] Speaker 04:
But why should she have said that?

[00:10:38] Speaker 04:
To be honest, at the very least, she shouldn't have punished or she had given, Mr. Gibbs shouldn't have punished Sue as a last straw you're fired for doing it.

[00:10:49] Speaker 02:
Council, Council.

[00:10:50] Speaker 04:
Mr. Gibbs' direction.

[00:10:51] Speaker 02:
I think maybe, I think I have the same question as Judge Bennett and I'm not sure, at least I didn't understand the answer to be totally responsive and that is when you have one client that is your entire business relationship that this employee was involved in and the client says, I don't want to work with that person anymore.

[00:11:20] Speaker 02:
Why can't the employer say, okay, we'll let that person go if the reason that the client gives is not discriminatory?

[00:11:34] Speaker 02:
I mean, they didn't say we want her gone because she's female or we want her gone because we heard that she criticized some billing practices.

[00:11:42] Speaker 02:
They wanted her gone because of interpersonal relationships and difficulty working with her, as I understand it.

[00:11:50] Speaker 04:
Well, that's Liberty's story, but it's not a positive fact.

[00:11:55] Speaker 04:
The core facts are that Ms.

[00:12:00] Speaker 04:
Caselli complained or reported the company's malfeasance in contract performance.

[00:12:07] Speaker 04:
She reported it.

[00:12:08] Speaker 04:
What did Liberty do about it?

[00:12:09] Speaker 04:
Nothing.

[00:12:10] Speaker 02:
But the client who asked that she be taken off of their work

[00:12:15] Speaker 02:
There's no evidence, I will say, that they knew that or that they took that into account in any way.

[00:12:23] Speaker 04:
Well, no, there isn't.

[00:12:25] Speaker 04:
But there's no direct evidence that they did or when they did it.

[00:12:32] Speaker 04:
This is a story.

[00:12:34] Speaker 04:
Liberty says that the state wanted her gone.

[00:12:38] Speaker 04:
When did that happen?

[00:12:41] Speaker 04:
After the June 23 email and subsequent conversations,

[00:12:45] Speaker 04:
Well, that would have been after Ms.

[00:12:47] Speaker 04:
Obert said she decided to fire suit.

[00:12:50] Speaker 04:
So it is protectable.

[00:12:51] Speaker 04:
It doesn't fit.

[00:12:53] Speaker 04:
It doesn't fit the timeline.

[00:12:54] Speaker 04:
It doesn't fit Liberty's own timeline.

[00:12:57] Speaker 03:
Well, counsel, following up on Judge Graber's question, I understand your point, but the district court addressed it and I'm having trouble seeing why it's wrong.

[00:13:10] Speaker 03:
The district court at ER 23 said if plaintiff's testimony is credited,

[00:13:15] Speaker 03:
which it must be at this stage, it would render her relatively faultless for sending the email undermining one of DDD's complaints about her.

[00:13:23] Speaker 03:
To show pretext, however, plaintiff cannot simply challenge the factual basis of DDD's complaints.

[00:13:30] Speaker 03:
She must produce evidence suggesting that LHC did not honestly believe that DDD was dissatisfied and wanted plaintiff off the project.

[00:13:38] Speaker 04:
That's correct.

[00:13:39] Speaker 04:
This issue is all about pretext.

[00:13:41] Speaker 04:
Do we have sufficient evidence of pretext?

[00:13:43] Speaker 04:
And I submit to the court that we do.

[00:13:45] Speaker 04:
We have temporal proximity the district court found as it should have that this circuit has ruled that 3 to 8 months is enough to establish pretext alone.

[00:13:56] Speaker 04:
This is about 2 to 3 months.

[00:13:58] Speaker 04:
So that's totally sufficient.

[00:14:00] Speaker 04:
The question is, can you apply that temporal proximity to.

[00:14:05] Speaker 04:
that applies to a prima facie case to proximity.

[00:14:08] Speaker 04:
And the answer is, yes, you can.

[00:14:10] Speaker 04:
Why not?

[00:14:11] Speaker 04:
Why doesn't it apply to pretext as well?

[00:14:14] Speaker 04:
The district court cites cases in which such evidence or temporal proximity was applied to pretext, but says, well, those are only a couple of days.

[00:14:23] Speaker 04:
So why should it matter if the temporal proximity is enough to establish pretext alone, whether it's two to three months or two to three days?

[00:14:32] Speaker 04:
It shouldn't matter.

[00:14:33] Speaker 04:
The temporal proximity presumption is the same in either case.

[00:14:39] Speaker 04:
So we have temporal proximity, we have shifting positions, and I will stand on the record that the reasons that Liberty has given to fire Sue don't add up, are shifting.

[00:14:54] Speaker 04:
She was told, or Ms.

[00:14:55] Speaker 04:
Obert said she decided to fire her for performance issues.

[00:14:59] Speaker 04:
She was told when she was fired that no one is saying you did a bad job,

[00:15:02] Speaker 04:
And then once we get into court, Liberty is saying, well, the state demanded that Sue be gone, so that's why we fired her.

[00:15:11] Speaker 04:
Which is it?

[00:15:12] Speaker 04:
Which is it?

[00:15:13] Speaker 04:
The jury has to decide those questions.

[00:15:16] Speaker 04:
The jury has to tell us who's telling them the truth and who isn't.

[00:15:20] Speaker 04:
These are fact questions.

[00:15:22] Speaker 04:
It's not a summary judgment case.

[00:15:23] Speaker 04:
It's not a case to be thrown out of court because this court believes Liberty but doesn't believe Sue.

[00:15:31] Speaker 04:
This is a fact case.

[00:15:32] Speaker 04:
This is a case all about facts.

[00:15:35] Speaker 04:
And importantly, importantly, importantly, Miss Caselli reported about the company's malfeasance and performance of its contract.

[00:15:45] Speaker 04:
No concrete evidence about that.

[00:15:48] Speaker 04:
There's no question that she reported something that was valid and fraudulent.

[00:15:54] Speaker 04:
What did Liberty do about it?

[00:15:55] Speaker 03:
You're out of time, counsel.

[00:15:55] Speaker 03:
Do you want to make a final point?

[00:15:57] Speaker 04:
Okay.

[00:15:58] Speaker 04:
Liberty did nothing.

[00:16:00] Speaker 04:
Ms.

[00:16:01] Speaker 04:
Kaselli reported sexual harassment, third-party sexual harassment.

[00:16:05] Speaker 04:
What did Liberty do about it?

[00:16:06] Speaker 04:
Nothing.

[00:16:07] Speaker 04:
It did nothing.

[00:16:08] Speaker 04:
It didn't.

[00:16:09] Speaker 04:
They told her to fend for herself.

[00:16:11] Speaker 04:
It didn't address the issue.

[00:16:13] Speaker 04:
It didn't investigate the issue.

[00:16:14] Speaker 04:
It did nothing.

[00:16:15] Speaker 04:
And that's got to be illegal.

[00:16:17] Speaker 03:
All right.

[00:16:17] Speaker 03:
Thank you, counsel.

[00:16:19] Speaker 03:
We'll hear from the appellee.

[00:16:36] Speaker 00:
Good morning, your honors.

[00:16:37] Speaker 00:
May it please the court?

[00:16:38] Speaker 00:
My name is Rita Bustos, Council for Liberty Health Care Corporation.

[00:16:42] Speaker 00:
The bottom line here is that Liberty, DDD's only, or Liberty's only client was dissatisfied with Ms.

[00:16:49] Speaker 00:
Caselli's work as executive director, and after a month of expressing this concern to Liberty and Ms.

[00:16:56] Speaker 00:
Caselli not improving, DDD requested that Ms.

[00:16:59] Speaker 00:
Caselli be removed from their project.

[00:17:01] Speaker 00:
Because the DDPD project was Liberty's only Arizona project at the time,

[00:17:06] Speaker 00:
and Miss Caselli refused to resign, Liberty had no choice but to terminate her, period.

[00:17:12] Speaker 00:
Instead of accepting this legitimate reason for termination, Miss Caselli made post-termination claims

[00:17:18] Speaker 00:
of sexual harassment and gender discrimination and filed this lawsuit repeating those claims, alleging that her termination was retaliation for reporting alleged fraudulent activity and the discrimination and harassment.

[00:17:31] Speaker 00:
To be clear, Ms.

[00:17:32] Speaker 00:
Caselli did not report any alleged sexual harassment or alleged gender bias to Liberty prior to her termination.

[00:17:39] Speaker 00:
And while she did express concerns about Liberty's performance on the DDD contract and the subject matter experts billing issues, these concerns were expressed

[00:17:48] Speaker 00:
after DDD already had significant concerns about Ms.

[00:17:52] Speaker 00:
Caselli's ability to lead the project.

[00:17:55] Speaker 00:
Why does that matter?

[00:17:58] Speaker 00:
I'm sorry, Your Honor?

[00:17:59] Speaker 03:
That may well be something that would undermine her credibility if she only made the complaints after DDD complained about her, but why is that germane on summary judgment?

[00:18:09] Speaker 00:
Uh, well, your honor, it's germane on summary judgment because it shows that, uh, there was the legitimate non retaliatory reason for Ms.

[00:18:18] Speaker 00:
Caselli's termination, uh, DDD.

[00:18:20] Speaker 00:
The only Arizona client was dissatisfied with her work for months after Ms.

[00:18:26] Speaker 00:
Caselli did not improve.

[00:18:27] Speaker 00:
Uh, in her job as executive director, and then specifically told liberty.

[00:18:34] Speaker 00:
Look, we don't want on our project anymore.

[00:18:36] Speaker 00:
Liberty met with Miss.

[00:18:38] Speaker 00:
Well, Liberty had discussions internally about, uh, Ms.

[00:18:43] Speaker 00:
performance and they're, they're thinking Ms.

[00:18:47] Speaker 00:
had the meeting with.

[00:18:48] Speaker 00:
about their thinking that Ms.

[00:18:50] Speaker 00:
Caselli should be removed as executive director or terminated.

[00:18:53] Speaker 00:
And then Ms.

[00:18:55] Speaker 00:
Obert had a conversation with the directors of the DDD who said, yes, we want Ms.

[00:19:00] Speaker 00:
Caselli removed.

[00:19:01] Speaker 00:
And that's when Ms.

[00:19:02] Speaker 00:
Obert decided that Ms.

[00:19:04] Speaker 00:
Caselli would be terminated at that point.

[00:19:06] Speaker 00:
After DDD made the directive for miss to be removed from the project.

[00:19:11] Speaker 00:
So, and and here what we do have your honors is again, we have the McDonald Douglas burden shifting framework, which really plaintiff just didn't.

[00:19:21] Speaker 00:
meet here.

[00:19:22] Speaker 00:
First, despite plaintiff's contention otherwise, the district court, again, it's all about liberties, honestly held belief about the reason that for the termination.

[00:19:34] Speaker 00:
And that's really, I think, probably one of the most important points here is that first,

[00:19:41] Speaker 00:
Miss Caselli was required to make her prima facie case of being terminated for a discriminatory or retaliatory.

[00:19:50] Speaker 03:
And the district court found she did.

[00:19:51] Speaker 00:
The district court found that she did.

[00:19:52] Speaker 00:
Of course, we do argue in our answering brief that the district court did get it wrong.

[00:19:57] Speaker 00:
I would like to point out that we did not need to file a cross appeal for that issue for this court to revisit that issue and decide the case to decide that Miss Caselli did not meet her prima facie burden.

[00:20:09] Speaker 05:
It's really just an issue of pretext, right?

[00:20:12] Speaker 00:
Exactly.

[00:20:13] Speaker 05:
However you analyze it under McDonald or whatever.

[00:20:17] Speaker 00:
Exactly, Your Honor.

[00:20:18] Speaker 00:
And again, this court could go back and find that Miss Caselli did not make her prima facie case.

[00:20:23] Speaker 00:
We did make that argument in our answering brief.

[00:20:25] Speaker 00:
But really, I think the more salient issue is the McDonnell Douglas burden shifting framework.

[00:20:30] Speaker 00:
So after Miss Caselli makes her prima facie case, then Liberty has to come forward with a legitimate reason for her termination, non-retaliatory, non-discrimination reason for her termination.

[00:20:41] Speaker 00:
And they more than did that here.

[00:20:43] Speaker 00:
And that's a burden of production and not persuasion.

[00:20:46] Speaker 05:
Your opponent wants us to reverse on the basis of the temporal proximity issue, so why wouldn't we let the jury decide on that basis?

[00:20:59] Speaker 00:
Well, your honor, temporal proximity alone, especially in this case is not enough to show that there was no or that to show pretext and end.

[00:21:10] Speaker 00:
Not only that, your honor, but in this case, there was a pretty significant amount of time from when Miss Caselli claims that she made these.

[00:21:22] Speaker 00:
You know claims of the fraudulent billing practices or you know she expressed concerns about liberties completion of the DDD project.

[00:21:31] Speaker 00:
She says that she made those complaints starting in about April, and then she was terminated in July.

[00:21:37] Speaker 00:
So there is a distance there.

[00:21:39] Speaker 00:
But again, temporal proximity alone is not enough.

[00:21:43] Speaker 00:
In this case, what plaintiff does need to show is she needs to show the evidence of pretext.

[00:21:48] Speaker 00:
And again, she just does not show that here and just going back to the 1st, part of it.

[00:21:54] Speaker 00:
Um, liberty more than met their burden of production to show the legitimate non retaliatory reason for her being fired.

[00:22:01] Speaker 00:
And again, it's a burden of production, not a persuasion.

[00:22:04] Speaker 00:
And then once that happens, then plaintiff must come forward with specific and substantial information or evidence of pretext.

[00:22:12] Speaker 00:
So what we have here in terms of the legitimate non retaliatory reason we have.

[00:22:18] Speaker 00:
Ms.

[00:22:19] Speaker 00:
Obert's declaration and deposition testimony, noting DDD's concerns and ultimate directive to remove Ms.

[00:22:26] Speaker 00:
Caselli.

[00:22:26] Speaker 00:
We have contemporaneous emails, which Judge Bennett pointed out in the record, documenting DDD's concerns about Ms.

[00:22:35] Speaker 00:
Caselli's leading of the project.

[00:22:37] Speaker 00:
We have the transcript of the telephone call between Ms.

[00:22:41] Speaker 00:
Caselli and the HR director and Ms.

[00:22:43] Speaker 00:
Obert.

[00:22:43] Speaker 00:
informing her that unfortunately either, you know, the client is not happy with your work.

[00:22:50] Speaker 00:
We have to remove you from the project.

[00:22:51] Speaker 00:
You can either resign or you can be terminated because we have no place else to put you.

[00:22:57] Speaker 00:
And then she did refuse to resign.

[00:22:59] Speaker 00:
So she was terminated.

[00:23:00] Speaker 02:
Counsel, I'm going to ask you the same question I asked your friend on the other side, just to be sure that you both have a chance to deal with it.

[00:23:10] Speaker 02:
Is there any evidence in the record that the client

[00:23:13] Speaker 02:
was aware of any whistleblower activity or complaints about sex discrimination or any other protected activity on the part of the plaintiff.

[00:23:25] Speaker 00:
No, absolutely not.

[00:23:26] Speaker 00:
Your honor, there is absolutely no evidence in the record that Liberty or DDD was aware of any of these specific issues.

[00:23:35] Speaker 02:
Okay.

[00:23:35] Speaker 02:
So when I suppose can infer from that, that

[00:23:39] Speaker 02:
their motives, whatever they were, were not retaliatory or discriminatory.

[00:23:44] Speaker 00:
100%, Your Honor, absolutely.

[00:23:46] Speaker 00:
And I just want to do go back to the legitimate non-retaliatory reason, which is an important point, because the legitimate reason for termination

[00:23:55] Speaker 00:
may be objectively false.

[00:23:57] Speaker 00:
And this court only requires that an employer honestly believe its reasons for the action, even if its reasons were foolish or trivial or even base.

[00:24:06] Speaker 02:
As long as they weren't discriminatory.

[00:24:08] Speaker 02:
I mean, hearkening back to the cases where people said, well, we only want white people serving at this restaurant because our customers don't like it.

[00:24:16] Speaker 02:
You know, so if the person asking has discriminatory or retaliatory motive,

[00:24:22] Speaker 02:
It doesn't help you.

[00:24:23] Speaker 02:
And that's why I'm focusing on this other question.

[00:24:25] Speaker 00:
No, absolutely, Your Honor.

[00:24:27] Speaker 00:
And there is absolutely no evidence in the record that DDD had some sort of discriminatory motive.

[00:24:34] Speaker 00:
for wanting Caselli removed from their project.

[00:24:38] Speaker 00:
And what we do have here is Ms.

[00:24:40] Speaker 00:
Obert's declaration and deposition testimony, which shows that she had the honestly held belief that DDD was not satisfied with Ms.

[00:24:50] Speaker 00:
Caselli's work and ultimately directed her to be removed when Ms.

[00:24:54] Speaker 00:
Caselli did not improve, even after being put on a performance improvement plan, even after Liberty was attempting to work with her

[00:25:03] Speaker 00:
Uh, look, we, you need to improve your performance here.

[00:25:07] Speaker 00:
Our customer is not satisfied.

[00:25:08] Speaker 00:
This is our only customer.

[00:25:10] Speaker 00:
Ms.

[00:25:10] Speaker 00:
Caselli did not improve.

[00:25:12] Speaker 00:
And then, you know, as we said, as the district pointed out, the straw that broke the camel's back, the dissemination of that email to the entire team, which obviously DDD was not happy with.

[00:25:24] Speaker 00:
And we have contemporaneous email documentation about they're not being happy with that.

[00:25:29] Speaker 00:
And then after that, Ms.

[00:25:31] Speaker 00:
Obert did have a direct conversation.

[00:25:33] Speaker 00:
with the DDD representatives who said, look, Kaselli needs to be removed.

[00:25:38] Speaker 00:
We don't want to work with her anymore.

[00:25:39] Speaker 00:
And that's why she was terminated.

[00:25:41] Speaker 00:
And Kaselli does not provide one scintilla of evidence to show that Ms.

[00:25:46] Speaker 00:
Obert did not or Liberty did not honestly believe that DDD was dissatisfied with her work and ultimately directed Ms.

[00:25:53] Speaker 00:
Kaselli to be removed from their project.

[00:25:55] Speaker 03:
Were the DDD people or any of them deposed?

[00:25:59] Speaker 00:
Your Honour,

[00:26:00] Speaker 00:
I don't believe so.

[00:26:01] Speaker 00:
I'm not a hundred percent sure on that.

[00:26:04] Speaker 03:
I didn't see anything in the record to indicate that DDD was asked one way or the other about whether they made these statements.

[00:26:11] Speaker 00:
No, your honor.

[00:26:12] Speaker 00:
And I, well, again, I'm not sure if they were to post, but you're right.

[00:26:16] Speaker 00:
Even if they were.

[00:26:17] Speaker 00:
that information is not in the record, which Miss Caselli obviously could have put in the record had it been in her favor.

[00:26:24] Speaker 00:
And you're right, Miss Caselli is the one who needs to show the evidence of pretext under the McDonnell Douglas burden shifting standard.

[00:26:32] Speaker 00:
And Miss Caselli here, in their reply brief, when she's trying to prove this evidence of pretext, she talks about

[00:26:41] Speaker 00:
three critical facts that she says that Liberty has misrepresented to this court, and it's just not correct.

[00:26:51] Speaker 00:
First of all, she says that DDD did not, or we did not present any evidence that DDD requested that Ms.

[00:26:59] Speaker 00:
Caselli be removed, and we absolutely did present that evidence, which is in the record.

[00:27:05] Speaker 03:
What it says is that there was no evidence that DDD requested

[00:27:11] Speaker 03:
that she be removed before over it made the decision to terminate her.

[00:27:15] Speaker 03:
I mean, that's what they said.

[00:27:16] Speaker 00:
Okay.

[00:27:16] Speaker 00:
No, absolutely.

[00:27:17] Speaker 00:
And again, that's just incorrect.

[00:27:19] Speaker 00:
Um, because we have Casa Sally's declaration and her deposition testimony.

[00:27:25] Speaker 00:
Where she testifies both in the declaration and in the deposition testimony that had been dissatisfied with Miss Kelly's work for months, which actually is the second critical fact that Miss Kelly points out.

[00:27:39] Speaker 00:
They're saying, well, there's no evidence that had complained about.

[00:27:44] Speaker 00:
Uh, Ms.

[00:27:44] Speaker 00:
Caselli's work in April or May, but we do have that in the record.

[00:27:49] Speaker 02:
Um, and so there is also some evidence, including, I think, in her deposition that at some of the meetings with the state, there was conflict between her and.

[00:28:01] Speaker 02:
The individuals from the state.

[00:28:03] Speaker 00:
Yes, absolutely.

[00:28:04] Speaker 00:
And that, and there's the, the 1 meeting that really stands out in the July 20th July 16th or June 16th meeting where Miss Caselli had an emotional outburst.

[00:28:16] Speaker 00:
But even prior to that, we have emails from DDD to Liberty expressing concern about the project.

[00:28:24] Speaker 00:
And, you know, we're not happy with the way this project is going.

[00:28:27] Speaker 00:
We're not happy with Miss Caselli's work.

[00:28:29] Speaker 00:
We have Ms.

[00:28:30] Speaker 00:
Obert's declaration and deposition testimony where she says, I had meetings with the DDD representatives back in April or May where they said, look, we're not happy with Ms.

[00:28:42] Speaker 00:
Caselli.

[00:28:42] Speaker 00:
She's overly emotional or the other things that she said here.

[00:28:47] Speaker 00:
And then we're talking again, going back to the timeline.

[00:28:50] Speaker 00:
In Ms.

[00:28:52] Speaker 00:
Obert's deposition testimony, she does say that prior to or when the email was distributed on

[00:28:58] Speaker 00:
June, July 22nd, that she had an internal conversation with Sue Nadja from Liberty saying, I think we need to terminate Sue.

[00:29:08] Speaker 00:
You know, DDD is not satisfied with their work.

[00:29:12] Speaker 00:
But then it was only after she spoke directly with the DDD representatives and they said, yes, we want Caselli removed, that she made the decision to remove Caselli at that point in time.

[00:29:24] Speaker 00:
And that's clear from

[00:29:26] Speaker 00:
Ms.

[00:29:26] Speaker 00:
Obert's deposition testimony.

[00:29:29] Speaker 00:
We also have what plaintiffs called critical fact number three, that Caselli was told that the main reason for her termination was DDD's dissatisfaction and directed to remove her, which again, we have evidence in the record that this is absolutely correct.

[00:29:44] Speaker 00:
We have the plaintiff herself put in the record the transcript of the phone call with Ms.

[00:29:49] Speaker 00:
Obert and the HR director.

[00:29:51] Speaker 00:
where they say, look, we need to make our clients happy.

[00:29:55] Speaker 00:
The client is not happy.

[00:29:57] Speaker 00:
Yes, we're not saying that you necessarily did a bad job, but the client is saying you're not the person for the job.

[00:30:04] Speaker 02:
Well, there's kind of a difference between doing a bad job at Liberty and having a client be dissatisfied somewhere else.

[00:30:13] Speaker 02:
Those aren't actually necessarily inconsistent, it seems to me.

[00:30:17] Speaker 01:
I don't understand the question.

[00:30:20] Speaker 02:
I guess a client can, you were saying before, a client can complain and it may not be justified.

[00:30:26] Speaker 02:
So it doesn't necessarily mean that she was doing a bad job.

[00:30:31] Speaker 00:
Absolutely, your honor.

[00:30:33] Speaker 00:
And that's true.

[00:30:34] Speaker 00:
And that goes back to the employer's honestly held belief about the legitimate reason for termination.

[00:30:40] Speaker 00:
Liberty honestly believed that DDD did not want Caselli on this project.

[00:30:45] Speaker 00:
And Ms.

[00:30:46] Speaker 00:
Caselli refused to resign.

[00:30:48] Speaker 00:
So DDD had no choice but to terminate her.

[00:30:50] Speaker 00:
And the record clearly reflects their honestly held belief there.

[00:30:54] Speaker 05:
She seems to be saying, if I may, that they were unhappy with her because she was a woman and that they mistreated the women in these meetings.

[00:31:08] Speaker 05:
Did your clan have an obligation to address that?

[00:31:15] Speaker 00:
Your Honor, and that goes again to the sex discrimination claim.

[00:31:18] Speaker 00:
And in that particular claim, and I see that my time is almost up, but I'd like to just answer that question quickly.

[00:31:24] Speaker 00:
The important part for that claim is that there is absolutely no evidence that Kaselli actually reported to Liberty, her employer, that she felt that the harshness of DDD and the criticisms that she was receiving about her work were based on sexual harassment,

[00:31:44] Speaker 00:
or gender-based discrimination, which is exactly what she would need to show in order to make the claim of sexual discrimination against her employer, Liberty HealthCare.

[00:31:56] Speaker 03:
All right.

[00:31:56] Speaker 03:
Thank you, counsel.

[00:31:57] Speaker 03:
You're out of time, but we'll give you two minutes for a rebuttal.

[00:32:02] Speaker 04:
Thank you.

[00:32:03] Speaker 04:
I would urge the court to look at those emails because there is no evidence that Liberty was unhappy with Caselli.

[00:32:11] Speaker 04:
In May or April, that just didn't happen.

[00:32:13] Speaker 04:
Look at the emails.

[00:32:14] Speaker 04:
They were unhappy with Liberty or they were complaining about Liberty's performance, not Caselli's.

[00:32:19] Speaker 04:
So, yes, your honor is right.

[00:32:22] Speaker 04:
The state was Liberty's only and big and lucrative client in the state.

[00:32:29] Speaker 04:
But is that justification for sexually allowing your executive director to be sexually harassed?

[00:32:36] Speaker 04:
Is that justification for retaliating against her because of her complaints about Liberty's performance of its contracts?

[00:32:45] Speaker 04:
So, you know, it's not a balancing test.

[00:32:48] Speaker 04:
Is there sufficient evidence to get to the jury

[00:32:51] Speaker 04:
And that evidence has to be very little to get past sovereign judgment.

[00:32:56] Speaker 04:
On a sex harassment claim, very little.

[00:32:58] Speaker 04:
Or on a whistleblower claim, only a contributing factor to her being fired.

[00:33:04] Speaker 04:
So these are low standards.

[00:33:06] Speaker 04:
The evidence as a whole, I think, passes the threshold of pretext.

[00:33:14] Speaker 04:
Pretext includes not only temporal proximity,

[00:33:18] Speaker 04:
but the shifting reasons for her termination, and the PIP, which is on its face superficially protectual.

[00:33:28] Speaker 04:
It's all subjective.

[00:33:31] Speaker 04:
It gives her weeks.

[00:33:34] Speaker 04:
Council said she didn't improve after the PIP was imposed on her.

[00:33:39] Speaker 04:
It was only a matter of days.

[00:33:41] Speaker 04:
It was only a matter of weeks.

[00:33:42] Speaker 04:
She wasn't given the time to do that.

[00:33:44] Speaker 04:
So all of this adds up.

[00:33:46] Speaker 04:
You need to look at the evidence that Sue has presented.

[00:33:49] Speaker 04:
You need to believe her evidence and not believe Liberty's evidence and make a determination that this case, although perhaps this whole panel would say, no, my verdict is for Liberty.

[00:34:05] Speaker 04:
That doesn't matter.

[00:34:06] Speaker 04:
It's not the judge's position or responsibility to say whether or not someone is telling the truth.

[00:34:13] Speaker 04:
That's the jury's responsibility.

[00:34:15] Speaker 03:
All right.

[00:34:15] Speaker 03:
Thank you, counsel.

[00:34:16] Speaker 03:
We thank both counsel for their arguments.

[00:34:18] Speaker 03:
And the case just argued is submitted.

[00:34:19] Speaker 03:
With that, we are adjourned for the day.