[00:00:00] Speaker 02:
Our final case this morning is 23-119D, Spagnolia versus Charter Communications.

[00:00:05] Speaker 02:
Mr. Shah?

[00:00:07] Speaker 03:
Thank you, Your Honors, and may it please the court, Stephen Shah, for Heather Spagnolia.

[00:00:12] Speaker 03:
Heather Spagnolia lost her job due to her need to feed her baby.

[00:00:18] Speaker 03:
This case does not only concern Ms.

[00:00:20] Speaker 03:
Spagnolia's rights, but also those of nursing mothers in the workplace across Colorado.

[00:00:25] Speaker 03:
This case has two major parts, a novel question of state law, the interpretation of the Pregnant Workers Fairness Act, and the merits of Ms.

[00:00:34] Speaker 03:
Fagnoli's retaliation claim under McDonnell Douglas.

[00:00:38] Speaker 03:
As we've argued in our request to certify to the Colorado Supreme Court, we believe that the first question is more appropriately resolved by the Colorado Supreme Court as a novel question of state law.

[00:00:50] Speaker 02:
Did you ask for the certification below?

[00:00:52] Speaker 03:
We did not, Your Honor.

[00:00:56] Speaker 03:
I understand that not requesting certification at the District Court does weigh against the analysis.

[00:01:03] Speaker 03:
However, it's not fatal.

[00:01:05] Speaker 03:
Laying the Progressive Northern Insurance was one case where certification was granted even though it was not requested in the District Court.

[00:01:13] Speaker 03:
And further, I think it's important to think about incentives here, where obviously you don't want to incentivize plaintiffs to, or losing parties to, request certification as a second bite of the apple.

[00:01:28] Speaker 03:
That makes sense.

[00:01:29] Speaker 03:
But we also don't want to encourage parties to request certification on literally any novel question of state law that arises in the course of litigation.

[00:01:38] Speaker 03:
If you look at the summary judgment briefing in this case, the Wanma preemption question was a very small part of a very large summary judgment motion, and given that it was an argument that had never been raised anywhere before to my knowledge,

[00:01:56] Speaker 03:
It would make sense not to request the delay of this entire case, this sprawling summary judgment motion, to answer a question that is likely kind of a throwaway moonshot statutory argument.

[00:02:13] Speaker 03:
So while it does weigh against the question of certifying, it's not dispositive.

[00:02:19] Speaker 03:
And this court can use its discretion to send this novel question of state law to the college.

[00:02:26] Speaker 01:
In order for the certification to have a good chance of getting accepted, it has to be dispositive.

[00:02:32] Speaker 01:
Isn't the question to be certified has to decide the case, has to have a meaningful role in deciding the issue before us.

[00:02:40] Speaker 03:
So the Colorado rule may be dispositive.

[00:02:46] Speaker 03:
And it makes sense that the rule must be dispositive whichever way it comes out.

[00:02:52] Speaker 03:
Because in that case, it would only be appropriate to certify if it was the only question in the case.

[00:02:57] Speaker 01:
So here, I guess what I'm wondering is, to skip ahead to where I'm concerned about is pretext, is that even if you prevail

[00:03:09] Speaker 01:
and the Colorado Supreme Court were here, the magistrate Judge Mix aired, how do you establish, how do you get through pretext here in your client's favor?

[00:03:23] Speaker 03:
Well, yes, we can move to pretext.

[00:03:25] Speaker 03:
I'd like to say first that regardless

[00:03:29] Speaker 03:
Regardless of how the Donald Douglas question comes out, the statutory interpretation is, or may be, just positive if it's decided against us by the Colorado Supreme Court.

[00:03:41] Speaker 03:
But with regards to pretext,

[00:03:46] Speaker 03:
I think the important thing here is to look at the broad course of the interactions between Ms.

[00:03:52] Speaker 03:
Magnolia and her employers.

[00:03:55] Speaker 03:
I think a relevant jumping in point is when her supervisors felt that she was pumping too much.

[00:04:03] Speaker 03:
And then they spoke with each other about this, that they felt she was pumping too much, she was excessive.

[00:04:08] Speaker 03:
And then they decided to change their policy from providing pay breaks for pumping to changing it to unpaid breaks, specifically to discourage her from pumping as much.

[00:04:19] Speaker 03:
They said, we think that changing the pay will fix this problem.

[00:04:25] Speaker 03:
That's the first indication that charter was happy to use its policy to address problems that it was having with Ms.

[00:04:32] Speaker 03:
Magnolia.

[00:04:33] Speaker 03:
Once we get to the actual recording that was the proposed legitimate non-discriminatory reason for determination, I think first, they've been having these problems with Ms.

[00:04:49] Speaker 03:
Stagnoli.

[00:04:49] Speaker 03:
She was an inconvenient employee.

[00:04:51] Speaker 03:
She was requesting accommodations.

[00:04:53] Speaker 03:
She was rejecting the accommodations that they provided.

[00:04:56] Speaker 03:
She was objecting to changes in policy.

[00:05:00] Speaker 03:
And then they found that she was recording this meeting.

[00:05:03] Speaker 03:
And all of a sudden, they had a reason to get rid of her.

[00:05:06] Speaker 03:
They'd been emailing with each other her supervisors about how they needed to fix problems they were having with her.

[00:05:14] Speaker 03:
And now they have a reason.

[00:05:15] Speaker 03:
She was recording.

[00:05:16] Speaker 03:
That's against company policy.

[00:05:18] Speaker 03:
Except maybe it's not, because the charter has never actually produced a company policy against recording the workplace.

[00:05:25] Speaker 01:
Did the charter need to do that, or was the policy on ethical behavior in the workplace sufficient?

[00:05:31] Speaker 03:
Charter was not required to have a policy specifically against recording in order to terminate Miss Magnolia.

[00:05:38] Speaker 03:
However, they moved forward with the termination believing they had that policy.

[00:05:44] Speaker 03:
They based it on that policy.

[00:05:46] Speaker 03:
Their initial corrective action report cited a secret recording policy that she violated as the reason for her termination.

[00:05:55] Speaker 03:
When they looked, they found that that policy did not actually exist.

[00:05:58] Speaker 03:
Audrey Corl's emailed other HR representatives to say, where is this policy?

[00:06:04] Speaker 03:
No one can find it.

[00:06:06] Speaker 03:
They eventually produced an email that was sent to just HR representatives, not employees, not in the code of conduct, saying that they don't allow recording in the workplace.

[00:06:19] Speaker 03:
That was not available to anyone.

[00:06:22] Speaker 03:
It's not that they didn't have a policy.

[00:06:24] Speaker 03:
It's that once the policy they were relying on was shown not to exist, they then decided to charge through.

[00:06:31] Speaker 03:
And I think the other really relevant evidence on pretext is the case of LK, the other comparator employee.

[00:06:41] Speaker 03:
And this is the person who was, approximately a year before, was recording another employee in the workplace who was sleeping.

[00:06:53] Speaker 03:
Looking at the record, it appears that he was openly recording this employee.

[00:06:57] Speaker 03:
This employee was sleeping on the floor.

[00:06:59] Speaker 03:
L.K.

[00:07:00] Speaker 03:
was openly recording it.

[00:07:02] Speaker 03:
But when he was confronted by Charter, he refused to admit that he was recording.

[00:07:08] Speaker 03:
Now Charter has taken the position that Ms.

[00:07:11] Speaker 03:
Bagnolia's conduct was

[00:07:13] Speaker 03:
more egregious than Elkay's.

[00:07:16] Speaker 03:
First, because she was recording in secret ways, he was recording openly.

[00:07:21] Speaker 03:
He was recording things that were available to everyone.

[00:07:25] Speaker 03:
However, they also terminated her under this dishonesty section of the Code of Conduct.

[00:07:33] Speaker 03:
Whereas when she was confronted about whether she was recording, she admitted it immediately.

[00:07:38] Speaker 03:
There's no indication that she hid it at all once asked.

[00:07:42] Speaker 03:
Whereas LK denied it, and they decided to give him no discipline at all.

[00:07:47] Speaker 03:
So I think when you compare these two cases, you really see

[00:07:54] Speaker 03:
male employee, when recording, received no discipline.

[00:07:58] Speaker 03:
Even though he was doing it openly in front of everyone, there were multiple reports that he was doing so.

[00:08:02] Speaker 03:
And then he lied about whether he was doing it.

[00:08:05] Speaker 03:
Now, the nursing employee, Ms.

[00:08:08] Speaker 03:
Magnolia, admitted it immediately.

[00:08:11] Speaker 03:
And they went forward from there.

[00:08:14] Speaker 03:
That was subject to immediate suspension, eventual termination.

[00:08:21] Speaker 03:
And I know that there is an issue of whether this magnolia was coached previously about recording.

[00:08:27] Speaker 03:
I would say first, the actual coaching that's referenced was not about her recording.

[00:08:35] Speaker 03:
She has, it's undisputed that she has never recorded in the workplace before.

[00:08:38] Speaker 01:
This was in connection with LK?

[00:08:40] Speaker 03:
This was in connection with LK.

[00:08:42] Speaker 03:
Now the actual cause for the coaching that she received was she was upset about the employee sleeping in the workplace.

[00:08:49] Speaker 03:
She was perhaps rude during a meeting that they were holding about this whole incident.

[00:08:54] Speaker 03:
So that's what the coaching was for.

[00:08:56] Speaker 03:
During that coaching, her supervisor did mention we don't record in the workplace.

[00:09:02] Speaker 03:
But I think,

[00:09:04] Speaker 03:
Ultimately, Charter's position boils down to, if you have been told of a policy, that means that any subsequent violation of that policy is egregious, which to me seems broadly overexpansive, not how any employer actually works, because that would make any violation of the Code of Conduct provided to employees egregious.

[00:09:26] Speaker 03:
And that does not seem to be how their system works.

[00:09:29] Speaker 03:
That doesn't seem to be how any employer works.

[00:09:31] Speaker 01:
What do we do with the other four employees who were terminated for recording?

[00:09:40] Speaker 03:
I would say first that it's remarkable that that charter relies on four corrective action reports over four years in a company with over 100,000 employees.

[00:09:52] Speaker 03:
That is just such a rounding error of incidence that I think it really just isn't appropriate anyway.

[00:09:58] Speaker 03:
As to the merits of them, two of the employees were in California.

[00:10:07] Speaker 03:
And California is a two-party consent state.

[00:10:09] Speaker 03:
So that means that recording without another person's notice is actually a violation of law in that state.

[00:10:16] Speaker 03:
And one of those corrective action reports actually doesn't cite any charter policies.

[00:10:21] Speaker 03:
It says this is a violation of law and policy, full stop.

[00:10:26] Speaker 03:
So that's two of them.

[00:10:28] Speaker 03:
They were actually engaging in what I understand to be criminal activity.

[00:10:33] Speaker 03:
Another one of those four.

[00:10:36] Speaker 03:
The individual was written up for harassing behavior towards other employees, including through recording and photographs, and for recording confidential charter information.

[00:10:55] Speaker 03:
Those facts aren't really relevant here.

[00:10:56] Speaker 03:
It's not necessarily that he was recording at all.

[00:11:02] Speaker 03:
I think it's likely that the real reason justifying termination in that situation

[00:11:06] Speaker 03:
was the recording charter confidential information.

[00:11:10] Speaker 03:
The four admittedly doesn't have these factors.

[00:11:14] Speaker 03:
But I would note that the corrective action report there does cite to the code of conduct for the reason for termination.

[00:11:24] Speaker 03:
And it is, in fact, an entirely different provision of the code of conduct.

[00:11:27] Speaker 03:
So it's not that this court needs to act as some kind of super HR department for charter.

[00:11:34] Speaker 03:
It's rather that based on how charter runs its business, the evidence that it's provided, I think this court should recognize that there are at least genuine disputes of material fact that should have gone to a jury.

[00:12:11] Speaker 04:
May it please the court, Celestia Cresswell on behalf of the Appellee Charter Communications.

[00:12:18] Speaker 04:
Your Honor, this case is not about failure to accommodate.

[00:12:22] Speaker 04:
It's about retaliation.

[00:12:23] Speaker 04:
This is a narrow appeal.

[00:12:25] Speaker 04:
The plaintiff has abandoned every claim on appeal, with the exception of a single claim.

[00:12:31] Speaker 04:
That claim is retaliation.

[00:12:33] Speaker 04:
That claim concerns accommodations and not gender discrimination.

[00:12:39] Speaker 04:
And so we will talk a little bit about accommodations.

[00:12:42] Speaker 04:
But this is not a gender discrimination case.

[00:12:47] Speaker 04:
This case revolves on multiple independent dispositive holdings in the district court.

[00:12:56] Speaker 04:
This court does not need to decide any of what the appellant has termed issues of first impression with regard to statutory interpretation between WANMA and CADA.

[00:13:08] Speaker 04:
The district court can be affirmed on multiple bases.

[00:13:13] Speaker 04:
There's no promulgation case.

[00:13:15] Speaker 04:
There's no causation.

[00:13:17] Speaker 04:
There's no pretext.

[00:13:20] Speaker 04:
There's no protected activity.

[00:13:22] Speaker 04:
This is under well-established law, McDonnell Douglas and its project.

[00:13:28] Speaker 04:
It's not an issue of first impression.

[00:13:30] Speaker 04:
Could you speak to the pretext?

[00:13:32] Speaker 04:
Certainly.

[00:13:35] Speaker 04:
it's important to recognize that it isn't a chartered burden to disprove pretext, it is the plaintiff's burden to prove pretext.

[00:13:44] Speaker 04:
And so when we look at the evidence that the plaintiff has put forward on that issue, none of it suggests that Ms.

[00:13:53] Speaker 04:
Chapman had a discriminatory motive, that she was motivated to terminate

[00:14:00] Speaker 04:
Miss Fagnolia for any reason other than what we articulated, which is that she recorded in violation of company policy.

[00:14:08] Speaker 01:
What policy, particularly?

[00:14:10] Speaker 01:
Is there a recording policy, or is it the ethical behavior policy?

[00:14:14] Speaker 04:
There is a policy against recording.

[00:14:17] Speaker 04:
Whatever you call it, Your Honor, it's written in the newsletter that went to the HR employees.

[00:14:24] Speaker 04:
So that recognized there was a policy.

[00:14:27] Speaker 04:
The policy prohibits recording.

[00:14:29] Speaker 04:
There is also, it's also subsumed within the code of conduct, which requires ethical and professional conduct.

[00:14:38] Speaker 04:
And it's important to recognize that

[00:14:41] Speaker 04:
Whatever you call the policy, the substance of the conduct that was disciplined has to be considered in the view of the good faith belief of the decision maker.

[00:14:52] Speaker 04:
And the decision maker here was Ms.

[00:14:54] Speaker 04:
Chapman.

[00:14:55] Speaker 04:
She was the director of the facility.

[00:14:57] Speaker 04:
She herself had taken lactation breaks and expressed professional fit work.

[00:15:03] Speaker 04:
And she had offered her own private office to Ms.

[00:15:06] Speaker 04:
Vagnolia for her breaks.

[00:15:08] Speaker 01:
Well, what do we do about the email that she sent like a week or something, 10 days before the firing, expressing what are we going to do about her or something along those lines?

[00:15:17] Speaker 01:
So what do we do with that email?

[00:15:18] Speaker 01:
I find it troubling.

[00:15:20] Speaker 04:
Your Honor, that email does not suggest a retaliatory motive.

[00:15:26] Speaker 04:
It does not suggest that Ms.

[00:15:28] Speaker 04:
Chapman was looking for a reason to terminate Ms.

[00:15:32] Speaker 04:
Spagnolia.

[00:15:33] Speaker 04:
It suggests the opposite.

[00:15:35] Speaker 04:
She was looking for a reason to keep Ms.

[00:15:38] Speaker 04:
Spagnolia working, not to terminate her.

[00:15:41] Speaker 04:
She wanted and she expected that Ms.

[00:15:44] Speaker 04:
Fagnolia would continue to work at Charter consistent with Charter's policies, including the policy as to breaks beyond regular pay breaks when their lactation breaks being unpaid.

[00:15:58] Speaker 04:
So Ms.

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

[00:16:01] Speaker 04:
Magnolia, you can stack your pay breaks, you can stack them with your lunch, you can put them all together, use them any way that you want, and you can take as many breaks as you need.

[00:16:12] Speaker 04:
So what Ms.

[00:16:13] Speaker 04:
Chapman did was to say, here are all the ways that we want to keep you working.

[00:16:20] Speaker 04:
And the plaintiff has put forward no evidence that suggests the opposite, which is that Ms.

[00:16:27] Speaker 04:
Chapman was looking for a way to terminate Ms.

[00:16:31] Speaker 04:
Bagnolia and cover up her retaliatory intent.

[00:16:35] Speaker 02:
Was Chapman deposed?

[00:16:38] Speaker 04:
She was, Your Honor.

[00:16:40] Speaker 02:
And what was her recount, what she testified to?

[00:16:45] Speaker 04:
She was not only deposed, but she also submitted a declaration in support of our motion for summary judgment.

[00:16:52] Speaker 04:
And the facts as the pretext have not been challenged in either respect.

[00:16:58] Speaker 04:
What Ms.

[00:16:59] Speaker 04:
Chapman testified was that she honestly believed this was an egregious violation of what she understood to be a company policy prohibiting recording.

[00:17:12] Speaker 04:
So Ms.

[00:17:13] Speaker 04:
Chapman had been involved in a situation a year before.

[00:17:17] Speaker 04:
She was the director of the rock.

[00:17:20] Speaker 04:
She was involved in the situation when LK indicated to someone, someone reported that LK said either I've recorded or I'm going to record or something about potentially recording another employee out in the open where everyone could see it.

[00:17:38] Speaker 04:
So the reaction to that

[00:17:40] Speaker 04:
was to coach the entire team, including Elkeny, on an individual basis.

[00:17:49] Speaker 04:
You shouldn't do that.

[00:17:51] Speaker 04:
The reaction was to also coach Ms.

[00:17:53] Speaker 04:
Fagnolia on an individual one-to-one basis.

[00:17:57] Speaker 04:
And the documented notes from that coaching, the first two bullet points, bullet point one, discuss employees recording other employees.

[00:18:07] Speaker 04:
Bullet point two, should not be doing that.

[00:18:10] Speaker 04:
It could not be clear from that documentation that everyone involved believed

[00:18:15] Speaker 04:
honestly and in good faith that there was a prohibition on recording other employees at charter.

[00:18:23] Speaker 04:
There's also nothing to dispute Ms.

[00:18:25] Speaker 04:
Chapman's testimony that she believed and understood and knew that Ms.

[00:18:30] Speaker 04:
Vagnolia had been coached as to should not be recording other employees at work.

[00:18:36] Speaker 04:
Don't do that.

[00:18:38] Speaker 04:
There's nothing the plaintiffs put forward to dispute that Ms.

[00:18:42] Speaker 04:
Chapman actually based her decision to terminate on the recording and not on anything else.

[00:18:50] Speaker 04:
So she was not aware of any complaints about locations being private or sanitary.

[00:18:59] Speaker 04:
As far as she knew,

[00:19:02] Speaker 04:
Ms.

[00:19:02] Speaker 04:
Magnolia was satisfied with all of that, including when Ms.

[00:19:06] Speaker 04:
Chapman offered her own private office that was empty at night on the shift that Ms.

[00:19:10] Speaker 04:
Magnolia worked, and she could have locked the door.

[00:19:13] Speaker 04:
So there is nothing to suggest, Your Honor, that in Ms.

[00:19:18] Speaker 04:
Chapman's testimony, that she didn't hold an honest and good faith belief that there was a policy,

[00:19:25] Speaker 04:
and that Ms.

[00:19:26] Speaker 04:
Spagnolia had been coached us to that policy and was aware of it, and then that Ms.

[00:19:31] Speaker 04:
Spagnolia chose to intentionally violate that policy by secretly recording a private closed-door meeting that was, in Ms.

[00:19:41] Speaker 04:
Chapman's honest view, more egregious than what happened with L.K.

[00:19:47] Speaker 04:
and was sufficiently egregious to warrant termination, just as four other employees, which we submitted the corrective action reports for, demonstrate this is a real policy, and it's really enforced, and people really get terminated for reporting at work, even if it's the first time.

[00:20:10] Speaker 01:
So, but the corrective action reports, well I guess I have two questions.

[00:20:15] Speaker 01:
One is how should we be thinking about those and evaluating pretext?

[00:20:18] Speaker 01:
We're writing the opinion, what are we saying about the corrective action reports?

[00:20:22] Speaker 04:
You should be thinking about, first, that that's our evidence that we put in and we don't have the burden to disprove pretext.

[00:20:31] Speaker 04:
And the plaintiff, Ms.

[00:20:32] Speaker 04:
Fagnolia, can't carry the burden to prove pretext by attacking or trying to poke holes in our evidence.

[00:20:40] Speaker 04:
It's just to bring forward our own affirmative evidence that something more than conjecture or speculation.

[00:20:45] Speaker 04:
So, you know, we don't have to litigate and prove that it was wise or perfect to terminate any of these employees.

[00:20:54] Speaker 04:
We just have to show that Ms.

[00:20:56] Speaker 04:
Spagnolia cannot prove, and she hasn't done that.

[00:21:00] Speaker 00:
Well, don't we have case law that says that discrediting a proffered reason is a legitimate way to show pretext?

[00:21:10] Speaker 00:
Don't we have some 10th Circuit law saying that?

[00:21:13] Speaker 00:
Yes, Your Honor.

[00:21:15] Speaker 00:
So when you're saying they have to do more than just poke holes in her statements, it could be, depending on how big the holes are, that that would be sufficient, wouldn't it?

[00:21:24] Speaker 04:
It could be if what they were poking holes in was something different.

[00:21:29] Speaker 04:
So they aren't poking holes in the articulated reason.

[00:21:36] Speaker 04:
They are trying to poke holes in our proof that suggests there was no pretext.

[00:21:42] Speaker 04:
And those are two different things.

[00:21:43] Speaker 04:
They aren't attacking Ms.

[00:21:45] Speaker 04:
Chapman's good faith belief that this was her real reason for terminating Ms.

[00:21:51] Speaker 04:
Magnolia.

[00:21:54] Speaker 04:
I'll make one other comment about the corrective action report.

[00:22:00] Speaker 04:
The appellant has criticized that there are only four of them.

[00:22:04] Speaker 04:
And it's a big company.

[00:22:07] Speaker 04:
And Appellants Council was not involved in the case below.

[00:22:10] Speaker 04:
But had they been, they would know that in discovery, it was limited to a geographic scope.

[00:22:17] Speaker 04:
So it was limited to the region in which Ms.

[00:22:20] Speaker 04:
Fagnoli worked.

[00:22:21] Speaker 04:
So that's one reason that criticism fails.

[00:22:24] Speaker 04:
The second reason that criticism fails is we wouldn't expect

[00:22:29] Speaker 04:
people in a professional work environment to go around recording each other and that we found four instances and each one of the four instances that we found within a limited time period within a limited geographic area all resulted in termination

[00:22:45] Speaker 04:
really proves the opposite of pretext.

[00:22:48] Speaker 01:
But don't they have to be similarly situated?

[00:22:50] Speaker 01:
I mean, they all seem to have recording as part of their origin story, but a lot more.

[00:22:56] Speaker 01:
They seem quite different from Aspect Noelia.

[00:22:58] Speaker 01:
Why am I thinking about that wrong?

[00:23:02] Speaker 04:
Because it is not charter's burden to prove that these are sufficiently situated, similarly situated people for comparative purposes, that's plaintiff's burden.

[00:23:12] Speaker 04:
The plaintiff has to find somebody who is similarly situated and prove they were treated differently.

[00:23:19] Speaker 04:
And the plaintiff hasn't done that.

[00:23:21] Speaker 04:
So from our perspective, these four corrective action reports, and one of them

[00:23:28] Speaker 04:
You know, the plaintiff has made no attempt to differentiate.

[00:23:32] Speaker 04:
It's on all fours, so there aren't any additional circumstances that would make it not similarly situated.

[00:23:40] Speaker 04:
So, for both reasons, we don't have the burden, is one.

[00:23:43] Speaker 04:
And two, there's at least one of the four that's exactly on point and suggests there wasn't a pretext.

[00:23:59] Speaker 04:
about causation.

[00:24:05] Speaker 04:
There is no evidence that the plaintiff has provided that is sufficient to overcome this court's precedent on intervening cause as to causation.

[00:24:24] Speaker 04:
So, temporal proximity alone isn't enough to carry the burden of establishing a prime affection case where there is an intervening cause.

[00:24:33] Speaker 01:
This temporal proximity is pretty proximate, wouldn't you say?

[00:24:38] Speaker 04:
It is in the sense that she was only back at work for a short period of time, but when there is an intervening cause, as there was here,

[00:24:47] Speaker 04:
It's not enough.

[00:24:49] Speaker 04:
And we would point the court to a similar case in that regard, two similar cases in that regard.

[00:24:56] Speaker 04:
One is the Diamond case.

[00:25:00] Speaker 04:
The employee there made a complaint very close to the time the employee was terminated.

[00:25:07] Speaker 04:
But there was an intervening cause, and it was a violation of company policy.

[00:25:13] Speaker 04:
And because there was an intervening cause, the court affirmed and said, there's no showing of causation, so there's no prosecution case.

[00:25:23] Speaker 04:
Which case is that?

[00:25:25] Speaker 04:
The Diamond case.

[00:25:29] Speaker 04:
And I'll mention a couple of other cases.

[00:25:32] Speaker 04:
I have a short amount of time left, so I just want to touch on two other decisions.

[00:25:36] Speaker 04:
One is the Kendrick case.

[00:25:40] Speaker 04:
And the standard in Kendrick suggests that what the plaintiff would have to show in order to win in this case is that no one else who secretly recorded after being coached would have been fired.

[00:25:54] Speaker 04:
And that's what I have been talking about for most of my time.

[00:25:58] Speaker 04:
The other case that I would like to mention is the Lobato case.

[00:26:03] Speaker 04:
And there, the court held that there was no pretext because there was evidence of the employer imposing similar disciplinary sanctions on other employees.

[00:26:14] Speaker 04:
And again, we have that in this case.

[00:26:17] Speaker 01:
But the intervening event just tends to undermine, right?

[00:26:20] Speaker 01:
That's the language.

[00:26:21] Speaker 01:
It doesn't destroy the causation, right?

[00:26:24] Speaker 01:
It's just something we would consider.

[00:26:26] Speaker 01:
It's not automatic.

[00:26:28] Speaker 04:
I don't believe it's automatic, Your Honor, but in all of the cases that I've seen where intervening cause comes up, the intervening cause is held to be so disruptive of any probative value of temporal proximity that it does destroy any inference of a retaliatory motive.

[00:26:50] Speaker 04:
And that, at the end of the day, is what this case turns on.

[00:26:53] Speaker 04:
Has the plaintiff provided any evidence that would suggest that Ms.

[00:26:57] Speaker 04:
Chapman chose to terminate her because she requested accommodations or she objected to something?

[00:27:06] Speaker 04:
Or does all of the evidence demonstrate that Ms.

[00:27:09] Speaker 04:
Chapman honestly believed there was a policy that Ms.

[00:27:14] Speaker 04:
Spagnolia violated it and that the violation was egregious enough that it warranted termination?

[00:27:22] Speaker 02:
Thank you, Councilor.

[00:27:23] Speaker 02:
Your time's expired.

[00:27:25] Speaker 02:
Mr. Shah, you have some rebuttal time remaining.

[00:27:41] Speaker 03:
Thank you, Your Honors.

[00:27:43] Speaker 03:
I'd like to pick up where Judge Ebell went, noting that this court has held recently, in fact, as recently as 2022, in Strube v. United Airlines, that a plaintiff can establish free text based on weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the stated legitimate nondiscriminatory reason.

[00:28:10] Speaker 03:
Similarly, you know, as in 2010 in Jones v. Oklahoma City Public Schools, this court rejected a pretext plus standard under McDonnell Douglas unless

[00:28:23] Speaker 03:
the Reeves exception applied, which would not be relevant, which would not apply here.

[00:28:29] Speaker 03:
Essentially what my colleague has been saying that we have to prove pretext.

[00:28:34] Speaker 03:
We have to prove that Miss Chapman had a discriminatory motive, and that was the reason why she terminated Miss Magnolia.

[00:28:42] Speaker 03:
That's been rejected by this court's case law on McDonnell Douglas and pretext for as much as 12 years.

[00:28:55] Speaker 03:
I'd also like to note, returning to what my colleague was saying about the corrective action reports, the four additional corrective action reports, it's true that those show that some individuals have been terminated for circumstances that involve recording, as Judge Rossman noted, may involve other issues, but do involve recording.

[00:29:19] Speaker 03:
However, it doesn't, you know, we have the numerator, we do not have the denominator.

[00:29:23] Speaker 03:
We know that at least four people were terminated for recording in the workplace of Miss Magnolia during these four years.

[00:29:30] Speaker 03:
We don't know how many people were recording and were not terminated.

[00:29:33] Speaker 03:
So for instance, LK is not represented in these corrective action reports because there wasn't a corrective action report.

[00:29:40] Speaker 03:
I'd like to point back at Stroop again, which ultimately found that the policy violations that the plaintiffs were accused of violating, that there was at least a genuine dispute of material fact.

[00:30:01] Speaker 03:
whether they were commonplace or minor, such that a jury could find that they were not so severe as to warrant termination.

[00:30:09] Speaker 03:
This seems like a very similar case.

[00:30:12] Speaker 03:
In LK's case, the charter decided not to terminate because it was not that serious.

[00:30:19] Speaker 03:
There wasn't enough proof.

[00:30:23] Speaker 03:
It's an unclear policy about reporting.

[00:30:26] Speaker 03:
In Ms.

[00:30:26] Speaker 03:
Tagnoli's case, it decided to terminate her based on her first instance of actually committing this misconduct.

[00:30:33] Speaker 03:
I think that that really sets the stage for the pretext claim.

[00:30:39] Speaker 03:
So with that in mind, we would ask either for this court to certify the statutory question to the Colorado Supreme Court so that that court can resolve the question of state law, or in the alternative, that this court reverse and revamp.

[00:30:54] Speaker 02:
Thank you, counsel.

[00:30:55] Speaker 02:
We appreciate the argument, your excuse, and the case will be submitted.