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Our next case is Dixon v. Regional University System of the Oklahoma Board, No.

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24-7016.

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Counsel, you may proceed.

[00:00:14] Speaker 02:
Thank you, Your Honor.

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If it please the Court, my name is Mark Hammons.

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I represent the appellant, Marcy WalkingStick Dixon.

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She appeals from summary judgment that was granted on her termination claim and retaliation claim.

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Those claims arose out of conduct by her supervisor, Dr. Reeve, who made comments and conduct that were offensive to her based on her gender and based on her Native American origin, which is considered race.

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She also raised a claim under the FMLA.

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All of those were dismissed, and in doing so, the trial court aired

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in the formulation of prima facie case on both the termination issue and the retaliation issue, aired in the consideration of the pretext evidence in the case.

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The court correctly, in our view, found that there is individual liability under the FMLA, although that is a first impression question for this circuit, but found that Dr. Reef was not

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covered by that using an economic realities test, which is simply not consistent with the rule of using statutory construction for the plain language of the statute.

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The court also granted qualified immunity on the basis that the individual liability issue had not been addressed by this circuit, but the circuit in Gray versus Baker

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had previously said that that question is not part of a qualified immunity analysis.

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All right.

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So we have the discrimination claim, the retaliation claim, and the FMLA retaliation claim before us now.

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That is correct.

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All right.

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On the discrimination claim, was Ms.

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WalkingStick bringing a separate claim

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were separate claims for sex and race discrimination or was it a combined claim?

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It was a combined claim.

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All right.

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And on that claim, I have a question for you on prima facie, the prima facie case at Summary Judgment.

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To survive Summary Judgment, how did she show that a reasonable jury could draw an inference of discrimination?

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On the prima facie case, well, she used the Kendrick four-part formulation.

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which was that she fell within the protected category.

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There was evidence by her own testimony that she was performing in a satisfactory fashion.

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She was nonetheless terminated for that and the position remained open and in fact was ultimately filled by someone outside of that protected category, which are the four elements required by Kendrick and which have been used.

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They date back to McDonnell Douglas and the Timsters case.

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were first adopted, I think, in Perry versus Woodward in this circuit.

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It had been used pretty consistently throughout since that time.

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They'd never been overruled or modified.

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Well, Counselor, can I ask you about that?

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Because you devoted a substantial number of pages in your brief to say that the district court erred in the test that it applied for the prima facie case.

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But we just recently even said again in a case called McNellis versus Douglas County School District,

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from a couple months ago that the elements of the prime official case are flexible approach.

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And even in that case, we reaffirmed the three elements that were used by the district court in this case.

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I think that opinion probably came down after your briefs were filed, but would you agree with me that the precedent of this court would set aside that argument that the wrong test was applied by the district court here?

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No, Your Honor.

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As I understand the precedent of the court, it is that the prima facie case is flexible, but that the selection of the prima facie case generally belongs to the plaintiff in setting forth how they're going to prove that.

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And the plaintiff is entitled to select a prima facie case that is consistent with the precedent of this court.

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This court has never overruled Kendrick or said that it cannot be used.

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There are factual circumstances in which it may not be appropriate, but those generally involve issues not of termination or issues like a riff where the position did not exist or issues of promotion where the position simply was denied to an individual.

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So the Kendrick did not apply to that.

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The Kendrick case itself says that the court has preferred that four-pronged structure

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in traditional cases of termination or failure to hire.

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Nonetheless, I think we could have selected a three-prong test and used that.

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And as a matter of fact, part of our argument is that under the three-prong test that this court has set out, our evidence would have supported the prima facie case, notwithstanding that.

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Our concern is that under the doctrine of vertical stare decisis, it is important that district courts follow the precedent.

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If this court has said that this prima facie case in Kendrick is satisfactory, then surely we're entitled to rely on that and present it.

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It doesn't mean we always have to, and it does mean in unusual circumstances that can be changed.

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But this change was not based on unusual factual circumstances.

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He just wouldn't apply Kendrick.

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So Counsel, can we jump forward in the McDonald Douglas framework and ask you about pretext?

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Can you help me understand what is it about or what evidence that you have of pretext?

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I know the comments that were made at various times throughout her employment.

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How do you or how did you tie those comments

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to the adverse employment action here that was based upon a protected trait that she had.

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Well, this court and the Supreme Court in Reeves have clearly said that it is a pretext only determination, that pretexts need not point to a particular motivating factor.

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It serves its purpose if it eliminates the credibility of the factors that were advanced.

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Now, they advanced two reasons.

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And we addressed both of those as well as showing evidence of a general plan to come up with some reason, even claiming a reduction of force, which was just nonsense, was never even considered as a basis for that.

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The two reasons given were performance and falsification of records.

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On the performance issue, we showed better performance.

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Evaluations were satisfactory.

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The court weighed the evidence.

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Satisfactory, but weren't there issues that were identified in performance as well?

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I disagree with that, Your Honor.

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Taking the facts in the light most favorable to the plaintiff, there were comments showing where she could improve areas of her performance.

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That does not mean her performance was unsatisfactory.

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To say that to be satisfactory, you have to be perfect

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is not consistent with either precedent or logic.

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For that matter, you can be perfectly satisfactory and still have room for improvement.

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That would be the appropriate interpretation when the rating on the areas where the comments were made was that she was satisfactory in every single case.

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More significantly, however, the university in its unemployment hearing presented sworn testimony saying we didn't fire her

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for performance.

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Now, if they're going to say that under oath.

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What did they say that they fired her for?

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For falsification of records, which the unemployment commission also rejected.

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But if they're going to say that on performance, why can't a jury find that that testimony is the most credible and realistic testimony and reject pretext?

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That's all we have to show.

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Can I interrupt?

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Yes, Your Honor.

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What if we were to say there's

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evidence of pretext as to the performance issue, but not as to the timekeeping.

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Well, there is authority in this court.

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Now, what it says is that if the dominant reason is refuted and secondary reasons need not be addressed, when there are two reasons and you refute one of them, I don't think

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the court has confronted that particular situation.

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It would seem to me that that would come very close to the nominal reason factor on it.

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But we also refuted the claim of falsification.

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The claim of falsification arose out of the matter for which she was reprimanded, and that was supposedly not correctly reporting her time, an area where she said she had gotten permission to report it in that fashion.

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But in any event,

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the action that was taken was a reprimand, which they admit was a very low form of punishment.

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To fire her, they had to enhance that finding to a falsification.

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They did that by conducting a search for other instances in the past.

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What they found was an instance where her

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where she had reported her FMLA time differently than the HR recorded it.

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There is no showing that you reported it wrongly.

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That's not part of the evidence.

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And she was never told about that, which this court has said is evidence of pretext.

[00:10:34] Speaker 01:
Well, in addition to what you just said by way of rebuttal to performance and timekeeping, what do you consider your strongest pretext evidence to be?

[00:10:45] Speaker 02:
Actually, I consider the stronger pretext evidence, the notes that were created the day before they fired her, going through clearly false and unsupported reasons.

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as alternatives they could use for explaining that decision.

[00:10:59] Speaker 01:
How do we know that it was the date?

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I was uncertain about the timing of those notes.

[00:11:06] Speaker 01:
I didn't see a date on the notes, but does the record show when they were prepared?

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Well, the record shows that the creator of the notes, Ms.

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Lough, the HR person,

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said she thought they were done the day before on August the 15th.

[00:11:20] Speaker 01:
The notes are in there.

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This was in her deposition?

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That's in her deposition.

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We cited that as part of the summary.

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Did she also say she was the... She said she was the author of the notes and identified who else was present, which included Mr. Reef and Ms.

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Scott, who was one of the investigators on the case.

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Now, there are some novel issues in this involving FMLA.

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They, the court agreed and it is the, in the majority of all the court decisions, individual liability appears to be the rule.

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There are three circuits who have agreed with that, the third, fifth and eighth circuit, the tenth circuit has not addressed it.

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The court agreed with us, they have not argued that in opposition.

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I think that's clear from the statutory language where it talks about employers or persons acting on behalf of an employer.

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The issue is how you determine whether or not a person is liable for acting on behalf of the employer.

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They used an economic realities test, which this court has not adopted for individual liability.

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Under that, you have adopted it in other circumstances.

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such as where you've got two different employing entities to determine who's liable and it fits with that.

[00:12:39] Speaker 01:
Is that what this issue turns on?

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In other words, if we decide that the economic reality test applies, do you end up losing on that issue?

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I would agree with that, Your Honor, but that would be contrary to the plain language and statute which the Supreme Court has for the past two decades said that is

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beginning and usually the ending point of construction.

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The only interpretable language is on behalf of an employer and the Supreme Court actually has interpreted that language under the NLRB twice for 75 years.

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They've said that that language means that if you're performing a task assigned to you or something within the scope of your employment,

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then you're acting on behalf of an employer, and we would meet that test, although technically it should be remanded for the court's determination in the first instance.

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I've explained why the qualified immunity argument was lost, and I'd like to reserve the remainder of my time if I may.

[00:13:44] Speaker 01:
You may.

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Thank you, counsel.

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Good morning.

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May it please the court?

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I am Lexi Norwood, and I represent Northeastern State University and Dr. Richard Reed, the defendants in the district court case.

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We're here today because of the split in the circuit of the McDonnell Douglas case.

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McDonnell Douglas did apply the four-pronged test, but it also left the door open, saying that the later course

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Later cases show that the three-prong test is actually preferred in the circuit because it does make the plaintiff show that there is some inference of discrimination based on either race or sex.

[00:14:45] Speaker 01:
Why do you say there's a split?

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I mean, couldn't the cases be reconciled in the sense that McDonnell Douglas, Kendrick, and others have

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recognize that the four parts have established a prima facie case, but there may be other ways to show as well.

[00:15:12] Speaker 01:
But as long as you satisfy the four part test, why isn't that enough?

[00:15:17] Speaker 01:
And if it isn't, wouldn't we be cutting against a lot of precedent, including McDonnell Douglas itself?

[00:15:23] Speaker 03:
Yes, sir.

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The reason that

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the judge in the Eastern District used the three-pronged test is because there still needs to be under Title VII some kind of inference of discrimination.

[00:15:35] Speaker 01:
But the four-part test, if you satisfy it, the cases say that's enough for a court to conclude, at least at that stage, that there is an inference of discrimination.

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Because, Your Honor, at that stage, the reason for Title VII is discrimination.

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And showing that somebody is no longer employed there but the position is still open does not create a... And is a member of a protected class.

[00:16:10] Speaker 03:
Yes, Your Honor.

[00:16:11] Speaker 01:
And was fired.

[00:16:12] Speaker 03:
Yes, Your Honor.

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Was qualified.

[00:16:13] Speaker 01:
And was qualified.

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All of those four together show basically that you can be a female Native American and be fired and show that you

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basically have met a prima facie case for discrimination under Title VII.

[00:16:29] Speaker 01:
But... Isn't that what McDonnell Douglas said?

[00:16:32] Speaker 03:
It does, Your Honor.

[00:16:33] Speaker 01:
Well, then... And that's not the end of the case by any means.

[00:16:38] Speaker 03:
No, Your Honor.

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And even if plaintiff were able to show a prima facie case in this instance, she still failed to show pretext when NSU offered their legitimate reason for firing the plaintiff.

[00:16:53] Speaker 03:
And so going into pretext, I know we talked about... Council, before you talk about pretext, can you... Sure.

[00:17:01] Speaker 00:
I guess maybe from the argument we just heard, I'm maybe confusing what I thought I read in the brief, but what was the reason she was fired?

[00:17:07] Speaker 00:
I've heard poor performance and the issue with the leave accounting, but there may be some discrepancies on that.

[00:17:16] Speaker 00:
Can you clear that up for me, please?

[00:17:17] Speaker 03:
Yes, she was fired for poor performance and for improper timekeeping.

[00:17:21] Speaker 03:
For the improper timekeeping, she was given prior verbal warnings from Dr. Reeve, and she still continued to report time wrong, as shown on the May 4, 2018 complaint.

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For poor performance, the record shows that she was sometimes late for work, no punctuality.

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And those are all shown in her

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performance reviews dating back to 2015.

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She didn't get what she says as a... She got a satisfactory performance review and she always did.

[00:18:00] Speaker 04:
Why isn't it exactly as plaintiff's counsel says, anytime a supervisor is writing remarks on ways to improve beyond a satisfactory performance, they might indicate some things that she could improve on.

[00:18:16] Speaker 04:
That isn't evidence.

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Is it of performance issues or she would have gotten needs improvement rating?

[00:18:23] Speaker 03:
It can be evidence of performance issues.

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And in this case, Dr. Reeve did put in her performance reviews the areas that she needed to improve on.

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And those are spelled out in our briefs.

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But as far back as 2015, she was not a perfect employee.

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And I know my

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opposing counsel has said you don't have to be a perfect employee.

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But the record is clear that she did have performance issues dating all the way back to 2015.

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And those... But was never given anything below a satisfactory review.

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What else is there besides that?

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Besides that, there was an investigation by NSU after plaintiff filed her May 4th complaint.

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And that investigation did show other areas that the plaintiff was lacking in her performance.

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at the university.

[00:19:15] Speaker 04:
So that didn't come up until she filed a complaint and there was an investigation.

[00:19:20] Speaker 04:
Yes.

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That's when the performance issues arise.

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That's not a strong pretext, or that's not a strong argument in your favor.

[00:19:28] Speaker 04:
Isn't that contrary to, kind of indicate pretext?

[00:19:34] Speaker 03:
No, Your Honor.

[00:19:35] Speaker 03:
The investigation was to go in and find out if there was any discrimination by Dr. Reeves.

[00:19:42] Speaker 03:
The investigation showed that there was absolutely no discrimination by Dr. Reeve, but the employees had other concerns and their concerns were based on miswalking sticks conduct at work as well as performance.

[00:19:54] Speaker 00:
Do you think it's fair to say that she would not have been fired but for the fact that she reported Title IX and sort of started this process of reviewing her performance?

[00:20:03] Speaker 03:
No, Your Honor, I do not.

[00:20:04] Speaker 03:
There's evidence in the record that shows that even the president of the university

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was concerned because they weren't able to do fundraising because her division was not able to get out certain things on time.

[00:20:18] Speaker 03:
So being able to roll out and implement programs from IT on time is crucial to the universities being able to operate on a daily basis.

[00:20:30] Speaker 01:
So if we break this down, we've already talked about prima facie case and

[00:20:37] Speaker 01:
we're moving to pretext, but there's this in-between step that we often talk a lot about, which is the legitimate non-discriminatory reasons.

[00:20:47] Speaker 01:
That seems to be more what you've been discussing, is that step, that while there were timekeeping issues, there were performance issues, and those are legitimate reasons.

[00:20:58] Speaker 01:
But then we get to pretext, and the question is, well, okay, even if those were legitimate reasons, even if there's some evidence to back it up,

[00:21:07] Speaker 01:
for those are the real reasons that this person was fired.

[00:21:11] Speaker 01:
And I want to ask you about a couple of aspects of the record on that regard.

[00:21:18] Speaker 01:
One thing that gave me pause was the meeting on July 23rd.

[00:21:26] Speaker 01:
I think Ms.

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Logue was there, Mr. Reef, and I think someone else.

[00:21:31] Speaker 01:
I can't remember who it was.

[00:21:33] Speaker 01:
But there was this discussion of whether they could come up with a way to get

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to fire Ms.

[00:21:42] Speaker 01:
Walkenstick through some loophole in the FMLA.

[00:21:48] Speaker 01:
Now, this happens before the investigation even starts and they're already looking for reasons to get rid of her.

[00:21:56] Speaker 01:
Why isn't that pretty strong evidence of pretext or at least enough to create a genuine issue of material fact for trial?

[00:22:05] Speaker 03:
Your Honor, the reason that that is not an appropriate text is because the allegations made here are words from counsel.

[00:22:15] Speaker 03:
They are not shown in the record.

[00:22:17] Speaker 03:
The deposition of Ms.

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Lowe does not say that they were looking for reasons to get rid of her.

[00:22:21] Speaker 03:
It does not say any of that.

[00:22:23] Speaker 03:
She simply said that these are her notes from that meeting, and those notes could mean anything.

[00:22:29] Speaker 03:
So there's nothing in the record to show that there was a meeting for them to meet and talk about ways to fire Ms.

[00:22:36] Speaker 01:
WalkingStick.

[00:22:36] Speaker 01:
Well, there are notes.

[00:22:37] Speaker 01:
I mean, it's not that there's nothing in the record.

[00:22:39] Speaker 01:
There are notes about the FMLA loophole.

[00:22:42] Speaker 03:
There's no testimony to say that anybody was looking for a reason to fire Ms.

[00:22:46] Speaker 03:
WalkingStick at all.

[00:22:47] Speaker 01:
Why would they even be talking about that then?

[00:22:50] Speaker 03:
Your Honor, they were looking at her leave reports because she had misreported leave on a number of times.

[00:22:56] Speaker 01:
No, I understand, but the conversation, didn't it go further than that?

[00:23:03] Speaker 01:
I mean, don't the notes reflect that they were at least talking about or referencing that that could be a basis for termination?

[00:23:15] Speaker 03:
Your Honor, I don't think so.

[00:23:16] Speaker 03:
I think they're just notes that the human resource department took during a meeting to talk about.

[00:23:22] Speaker 01:
All right.

[00:23:23] Speaker 01:
Well, let's talk about the other notes that were referenced earlier.

[00:23:28] Speaker 01:
Do you agree that Ms.

[00:23:30] Speaker 01:
Logue's notes were made the day before the termination?

[00:23:35] Speaker 03:
According to her testimony, yes, Your Honor.

[00:23:37] Speaker 01:
OK.

[00:23:37] Speaker 01:
And didn't those notes reflect various reasons that she could be fired?

[00:23:44] Speaker 01:
weren't the reasons that she was fired?

[00:23:46] Speaker 03:
Your Honor, the person that took the notes is human resources.

[00:23:49] Speaker 03:
And so I'm sure that the human resource department wants to be sure that they have evidence to support a termination before they terminate an employee.

[00:23:59] Speaker 03:
That would make sense.

[00:24:01] Speaker 01:
I don't think that the human resources department... Were the notes limited to timekeeping and performance as a reason for termination?

[00:24:11] Speaker 03:
Yes, Your Honor, as far as I know.

[00:24:13] Speaker 01:
They were?

[00:24:15] Speaker 03:
I believe they were.

[00:24:16] Speaker 01:
I don't have candy.

[00:24:17] Speaker 01:
I thought there was more to it than that.

[00:24:19] Speaker 01:
But we can look at the notes.

[00:24:21] Speaker 01:
Well, let me ask you about one other piece of evidence on pretext, which is the message that Dr. Reif sent in to the HR to talk about all of this.

[00:24:33] Speaker 01:
And he says,

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among other things, that he finds the accusation of sexism, racism, insulting to my very core.

[00:24:42] Speaker 01:
At the conclusion of the investigation, I request that this committee give me my option to file a complaint of defamation of a character.

[00:24:49] Speaker 01:
Now, that may not alone create a genuine issue of pretext, but isn't it relevant to pretext?

[00:24:56] Speaker 03:
Yes, Your Honor, it would be relevant to pretext, but this was sent not

[00:25:02] Speaker 03:
in retaliation for her complaint, this is sent because he's trying to give his side of the story and let the investigators know what actually happened.

[00:25:13] Speaker 01:
Well, it was sent after her complaint.

[00:25:17] Speaker 01:
And then the complaint's protected activity, isn't it?

[00:25:20] Speaker 03:
It is, Your Honor.

[00:25:21] Speaker 01:
And it was sent after the complaint was made.

[00:25:23] Speaker 03:
Yes, and he's saying that these things did not happen, that he never

[00:25:29] Speaker 03:
did any of the things that she has complained about of him.

[00:25:32] Speaker 03:
And if a complaint was made about me, I would be offended as well, to my very core.

[00:25:38] Speaker 03:
And so that does make sense.

[00:25:48] Speaker 03:
But Your Honor, the entire burden is on the plaintiff to show pretext and a prima facie case.

[00:25:54] Speaker 03:
The burden is not on the defendant to defend either one of those.

[00:25:58] Speaker 03:
plaintiff clearly failed both of those in the district court.

[00:26:12] Speaker 03:
And I've only got about three minutes left.

[00:26:13] Speaker 03:
If I could talk about FMLA for a few minutes.

[00:26:18] Speaker 03:
So the FMLA case, I know opposing counsel talked about the Gray case.

[00:26:25] Speaker 03:
And there is some distinguishment between that case and this case.

[00:26:29] Speaker 03:
is that the court found that you must assert a true defense of acting in good faith, and that is what happened here.

[00:26:37] Speaker 03:
Dr. Reed has always said that he has been acting in good faith.

[00:26:42] Speaker 03:
He didn't know that plaintiff had taken a family leave at the end, and in his answer, he proposes that he was acting in good faith at all times.

[00:26:52] Speaker 03:
And under

[00:26:55] Speaker 03:
the court in gray, the McDonnell Douglas test would also apply.

[00:27:00] Speaker 03:
As far as qualified immunity goes, the plaintiff bears the heavy burden to show that any conduct by Dr. Reed violated a constitutional or statutory right and that those rights were clearly established, which they are not in the 10th Circuit.

[00:27:17] Speaker 03:
The 10th Circuit has not decided whether an individual can be held liable, but most importantly,

[00:27:23] Speaker 03:
whether a state employee supervisor can be held liable.

[00:27:28] Speaker 03:
And that's important because state employee supervisors need to be put on notice of what conduct is prohibited and what conduct is not.

[00:27:40] Speaker 03:
And if you look at the statute, the public employee version is under a different section.

[00:27:46] Speaker 03:
It doesn't say an individual.

[00:27:47] Speaker 03:
It says the agency.

[00:27:52] Speaker 03:
It wouldn't make any sense to give public entities sovereign immunity from FMLA, but then to allow liability for individual government employees.

[00:28:02] Speaker 03:
And so we would ask that this court affirm the district court ruling and the motion for summary judgment be affirmed.

[00:28:14] Speaker 04:
Questions?

[00:28:14] Speaker 04:
I want to clarify on these notes.

[00:28:15] Speaker 04:
I'm not sure I'm understanding your position.

[00:28:18] Speaker 04:
There's two different notes that were at issue.

[00:28:21] Speaker 04:
Are they both unsigned, or is it just one?

[00:28:24] Speaker 03:
I believe there's only one.

[00:28:25] Speaker 04:
Just the one.

[00:28:27] Speaker 04:
That's the one that has plan restructure, false claim, theft of property, emails, et cetera.

[00:28:33] Speaker 04:
Can we show copy or delivery to home emails?

[00:28:37] Speaker 04:
Can we find evidence of gross misconduct on L Drive?

[00:28:42] Speaker 04:
And reduction in force, false claims, performance, gross, question mark, falsification of records, question mark.

[00:28:49] Speaker 04:
Is that the note that the HR director said she prepared the day before?

[00:28:54] Speaker 03:
It is, Your Honor.

[00:28:56] Speaker 04:
The day before her discharge or?

[00:28:58] Speaker 04:
Her termination.

[00:28:59] Speaker 04:
Her termination, yeah.

[00:29:01] Speaker 04:
And you don't think that has any meaning at all?

[00:29:04] Speaker 03:
I do think it has some meaning, Your Honor, and Ms.

[00:29:06] Speaker 03:
Slo was deposed in this case, but there's no evidence to show that they were looking for reasons to terminate her, other than what?

[00:29:15] Speaker 04:
Can't we make some inferences from this note?

[00:29:18] Speaker 04:
Wouldn't it be appropriate to make inferences?

[00:29:20] Speaker 03:
Some inferences could be made, but they could also be made.

[00:29:23] Speaker 04:
Can we show copy or delivery to home emails, theft of property, false claim, falsification of records, lots of question marks.

[00:29:32] Speaker 03:
Yes, Your Honor.

[00:29:33] Speaker 03:
And the investigation did show a lot of things that the university was not on notice of.

[00:29:39] Speaker 03:
when it pertains to Ms.

[00:29:40] Speaker 03:
WalkingStick's conduct and performance and timekeeping issues.

[00:29:44] Speaker 03:
And so they did look into those things to see if Ms.

[00:29:47] Speaker 03:
WalkingStick should be terminated.

[00:29:50] Speaker 04:
Theft of property as emails?

[00:29:56] Speaker 03:
Your Honor, those have never been explained.

[00:29:57] Speaker 01:
That was the day before.

[00:30:02] Speaker 03:
Yes, Your Honor.

[00:30:04] Speaker 04:
And the other was a conversation or the other information that was, but the district court didn't consider this note, is that correct?

[00:30:13] Speaker 04:
Because it was undated and signed?

[00:30:16] Speaker 03:
Yes, Your Honor.

[00:30:17] Speaker 03:
That and Dr. Reed did not participate in the decision to fire the plaintiff in this case.

[00:30:24] Speaker 03:
They did seek his input to see if he agreed that she should be terminated and he did agree, but he did not make the ultimate decision to fire Ms.

[00:30:32] Speaker 03:
Washington.

[00:30:33] Speaker 03:
That was by Human Resources and the Vice President, Kristi Landsau.

[00:30:41] Speaker 03:
In closing, I would just like to say that Ms.

[00:30:44] Speaker 03:
WalkingStick never tied any conduct by the people that decided to fire her, Ms.

[00:30:52] Speaker 03:
Landsau and Ms.

[00:30:54] Speaker 03:
Logue, to anything that has to do with her race or sex.

[00:30:59] Speaker 03:
And under Title VII,

[00:31:02] Speaker 03:
Her claim should fail.

[00:31:05] Speaker 03:
I thank you for your time, Your Honors.

[00:31:07] Speaker 01:
Thank you, Counsel.

[00:31:15] Speaker 02:
Thank you, Your Honor.

[00:31:16] Speaker 02:
The notes that you pointed out, Judge Ritz, were at a meeting with Dr. Reeve Logue and Ms.

[00:31:24] Speaker 02:
Clifton.

[00:31:25] Speaker 02:
Ms.

[00:31:25] Speaker 02:
Clifton was an investigator who had previously participated in the meeting where they did look for a reason

[00:31:32] Speaker 02:
to deny her FMLA protections.

[00:31:35] Speaker 02:
That's what the key man issue is.

[00:31:38] Speaker 02:
There's no other explanation for that.

[00:31:41] Speaker 02:
That's what they were discussing, saying that Reef didn't know about her FMLA usage, which I thought they said is just nonsense.

[00:31:50] Speaker 02:
He participated in the meeting going over FMLA records.

[00:31:55] Speaker 02:
And Ms.

[00:31:58] Speaker 02:
Lansaw, who was

[00:32:00] Speaker 02:
listed as the final decision maker testified she relied on the recommendation of Mr. Reef in doing that, and the Stomp case by the U.S.

[00:32:09] Speaker 02:
Supreme Court indicates that at least can be evidence of causation, certainly not something that could be ruled out on this record.

[00:32:19] Speaker 02:
I do have to point out they've

[00:32:21] Speaker 02:
said that during the investigation of her complaint, they gathered a lot of information against her.

[00:32:26] Speaker 02:
That does show up in the notes.

[00:32:28] Speaker 02:
I'm not sure how the questioning led to that.

[00:32:31] Speaker 02:
But what is clear is that they never presented any of that evidence to her or allowed her to respond, which this court has said is significant in determining pretext.

[00:32:42] Speaker 02:
She'd never been written up for anything except a reprimand on a time-coding error that she said she got approval on.

[00:32:52] Speaker 02:
And then she gets fired for circumstances that nobody talks to her about until Dr. Reeve says, man, I'd like to sue her.

[00:33:00] Speaker 02:
I'm so mad that she made this complaint against me and makes that declaration to the investigators who gathered the information.

[00:33:10] Speaker 02:
Unless there are questions, we would ask the court to reverse and remand and address the first impression issues that

[00:33:19] Speaker 02:
will be necessary for determination of not only this case but many other cases.

[00:33:24] Speaker 01:
Thank you, counsel.

[00:33:26] Speaker 01:
Thanks to both of you for the arguments this morning.

[00:33:28] Speaker 01:
The case will be submitted and counsel are excused.