[00:00:00] Speaker 00:
Case number 25-5078, Karen Spencer, Appellant for Sadler State College, Secretary, United States Department of Veteran Affairs, Mr. Branch for the Appellant, and Mr. Bateman for the Appellant.

[00:00:13] Speaker 02:
Good morning, counsel.

[00:00:14] Speaker 03:
Mr. Branch, please proceed when you're ready. Good morning. May I please support?

[00:00:18] Speaker 03:
The district court erred in dismissing this case at the pleading stage. The plaintiff alleged sufficient facts to support her claims of discrimination based on race and based on retaliation.

[00:00:33] Speaker 03:
Once again, this is a pleading stage case. The question is not whether Dr. Spencer proved race discrimination or retaliation, but the question is whether her complaint plausibly alleged discrimination and retaliation. And in fact, the complaint did. The district court demanded proof of plausibility and parse through the complaint and the allegations in the complaint, instead of considering the complaint holistically and stripped away the very context, which makes the complaint, the claims compelling.

[00:01:10] Speaker 03:
So there are two issues here. The first is rule eight did not require Dr. Spencer to plea discovery level comparator detail. And in fact, in employment discrimination cases, Comparator information is only one way to prove discrimination, but we believe that there were sufficient facts alleged in the complaint to demonstrate that the individuals identified were comparators. Dr. Spencer was a nurse practitioner at the VA Medical Center, and she alleged that she was discriminated against beginning in 2018.

[00:01:49] Speaker 03:
She was suspended previously and placed on a force performance evaluation plan, basically a performance plan, because there was an incident of her leaving a cap syringe in her office after she administered an injection, a trigger point injection.

[00:02:07] Speaker 01:
So can you address why you think that these comparators were appropriate? Because one comparator was a resident, a doctor, whereas your client is a nurse. And it just seemed very... They didn't seem similarly situated. And then there was another group of comparators, nurses who mishandled syringes, but it seemed that the conduct at issue was different. It wasn't just mishandling a syringe for your client. It was... operating outside her scope of whatever scope of procedure or whatever scope of practice.

[00:02:41] Speaker 01:
And also she didn't allege the race of that group of nurses, which I think is necessary. So why do you think the comparators were proper?

[00:02:50] Speaker 03:
Thank you, Your Honor.

[00:02:52] Speaker 03:
This is the plaintiff was a nurse practitioner. So part of her job was being a nurse, but also she was a practitioner. So she was not a comparator in the sense of comparing herself to another nurse practitioner. But there are certain aspects of her job as a practitioner that were comparable to what this resident was. did. She diagnosed patients, she saw patients, and she administered treatment to patients, something that a resident would do.

[00:03:21] Speaker 01:
So would a brain surgeon be an appropriate comparator to your client nurse practitioner?

[00:03:27] Speaker 03:
Your Honor, Well, I'm not sure exactly everything that a brain surgeon would do, but to the extent that part of his job... You just listed. Yeah, well, if part of his job was administering trigger point injections, such as what my client did here... The resident didn't administer trigger point injections? No, the resident diagnosed a patient, treated a patient, and because of this misdiagnosis, the patient's leg had to be amputated.

[00:03:56] Speaker 01:
No, I understand, but if the... If to be an appropriate comparator, they just have to diagnose and treat patients, it seems like any doctor would be a comparator to a nurse practitioner. That doesn't seem right.

[00:04:07] Speaker 03:
Your Honor, I think the argument that I'm trying to communicate is that certain aspects of her job could be compared to other positions that did not have the same title. And then, for example, the nurse part, she was a nurse practitioner. So she said there was actually reliance in the complaint. And again, this is the pleading. This is not summary judgment where we have to prove this. This is the pleading stage where we make the allegations. And then there's evidence that's placed in the record to support the allegations.

[00:04:41] Speaker 02:
And then this is the actual- Under our precedence, and I'm thinking of the Joyner case in particular, but there are others, see? Even at the pleading stage, there has to be some work done as to the comparator. It's not enough just to plead that there's a comparator.

[00:04:55] Speaker 02:
And so then the question becomes, even if it's not the job title of the person, it seems like it's the relevant conduct that gave rise to the sanction that would be the comparison because it would have to be, look, this person did something that's roughly similar and then they just got treated totally differently and that one is one race and one is the other race. And so you've got the race and then you've got that they did something similarly and they were treated differently.

[00:05:26] Speaker 02:
And the question becomes, Is there enough in the complaint from which to draw the conclusion that this is a similar type of conduct that occurred, and yet the treatment was different, such that the inference could be that the treatment was different because of the race of the person who was sanctioned in some way? And I think that's where the question arises is, does the complaint give enough for a plausible inference that people who were doing roughly the same thing, same family of stuff, they got treated differently.

[00:05:59] Speaker 02:
And it's the same family of stuff that seems like the question here.

[00:06:04] Speaker 03:
Yes, Your Honor. And obviously, we believe that we included enough information in the... Maybe it's not obvious, but we think we included enough information in the complaint. I don't want to offend the court. But...

[00:06:17] Speaker 03:
So, but this is also an issue that is for a fact finder, not at the pleading stage where you plead a complaint. The record needs to be developed. Now, in terms of the- There has to be plausible even at the pleading stage, right?

[00:06:29] Speaker 04:
Yes, but in terms of the nurses- Just to sharpen it up about the type of conduct version, the resident's conduct- awful consequences of the conduct was breaching standard of care. And that's just a different bucket from a knowing violation of your scope of practice. They're just an error in medical judgment, violating your scope of practice. That's at least what the VA says. So do you have a specific response to why those, that's not the way to think about this?

[00:07:00] Speaker 03:
Well, Your Honor, first, the plaintiff was trained in inserting, asserting, administering trigger point injections. She had done it over a number of years. So she denies that this was beyond the scope of her practice. She was, she gets a scope of practice each year. This was included specifically in a number of years.

[00:07:22] Speaker 04:
I thought she concedes that performing the injection in her administrative office is outside the scope of practice. Yes. And that sort of highlights the difference. It might have been a perfectly safe and appropriate procedure. She did it in the wrong place, which just seems like a different bucket than, this would be the argument anyway, than making, if she had made a mistake while doing this procedure in the right place.

[00:07:47] Speaker 03:
But Your Honor, I, yes, she did administer it in her office and she provided an explanation of why it was done in her office. But That still is to be compared to a resident treating, misdiagnosing a patient and the result being that the patient has to have an amputation. In terms of the nurses, what we allege in the complaint is that the...

[00:08:16] Speaker 03:
It was a regular, I want to say a regular course, but it happened often that nurses did not handle syringes correctly. And the consequence was typically either some guidance or direction, but it would never result in someone being terminated. And what we alleged in the complaint is For Dr. Spencer, she had already been placed on this focus practice performance plan for six months, for the last six months of 2018.

[00:08:47] Speaker 03:
But then she had the meeting with Dr. Fasalis in December, and she complained about how long am I going to be on this plan? And the response was no. You know, you're a problem child. Nobody likes you here. You're going to be on this plan for a long time. She asserted that he was making these comments because she perceived them as being racist. The result was to place her on another forced performance plan or subject her to an investigation. Three consecutive suspensions starting in January 2019, March, May 2019.

[00:09:23] Speaker 04:
I just want to give you a chance to one of the difficult one of the government's arguments about the retaliation claims that this looks a lot like breeding. Where, yes, there was protected activity and then adverse action, but actually the protective activity occurs. So there's one view of the complaint where it is just proceeding along a predictable path. And can you, I just want to give you a chance to do your best.

[00:09:49] Speaker 03:
Yes. So the best argument there is she was on this performance plan, but that had been completed. And that's why she was going to Dr. Fazalis to say, when am I going to be returned to my office and when are my duties going to resume? And the response was after she complained about discrimination was, you're going to be subjected to a new investigation. And we saw as part of the records, when they finally reached the decision to terminate her, they considered facts and incidents as far back as 2017.

[00:10:22] Speaker 01:
I know that this isn't part of the legal analysis because it's not in the complaint, but the ALJ opinion says that your client asked for that investigation and they purposefully assigned three independent people not in her department to perform that investigation.

[00:10:38] Speaker 03:
The investigation was triggered after she complained to Dr. Fasalis. She wanted to return to work, return to her position.

[00:10:47] Speaker 01:
And is this, are you just telling me what's in the complaint? Are you telling me, are you telling me the ALJ was wrong?

[00:10:54] Speaker 03:
I'm well, it's in the complaint.

[00:10:56] Speaker 01:
And I think that I just saying in the complaint, you imply that the second investigation was the result of her making a racial complaint. But there's a finding by the ALJ that she asked for that second investigation because she didn't trust, I guess, Ms. Neptune, who was her supervisor. And then the ALJ's opinion says that Vesalas got three independent people to conduct that second investigation.

[00:11:27] Speaker 03:
I don't think she ever requested a second investigation.

[00:11:31] Speaker 05:
Mm-hmm.

[00:11:33] Speaker 03:
particularly for something that had already been resolved. So that takes us to the issue of retaliation. I think we've already kind of wrapped it up and addressed that as well.

[00:11:43] Speaker 04:
Can I ask you, so there's a back and forth in the briefs about exhaustion.

[00:11:46] Speaker 03:
Yes.

[00:11:47] Speaker 04:
And I just want to understand what you understand to be at stake in that dispute. Because I think everyone agrees that there are claims relating to the termination, both racial discrimination and retaliation.

[00:12:03] Speaker 04:
the district court thought you were also trying to bring a claim that says the investigation itself and the first suspension itself are sort of independently actionable so that you could proceed just on a claim that the investigation was a violation of Title VII.

[00:12:23] Speaker 04:
The question, I just want to understand what's at stake. On appeal, are you arguing that you should be allowed to proceed on that type of distinct claim? Or do you just want to make sure that you can challenge the termination?

[00:12:36] Speaker 03:
It's partly the latter, challenge the termination, and she was suspended in May of 2019. I think that issue was accepted as well. Absolutely, yes. May and the termination.

[00:12:46] Speaker 04:
You were in February in the existence of this investigation as distinct claims. Sorry, you were going to answer, but are you arguing that those are exhausted claims?

[00:12:58] Speaker 03:
We are not making that argument. We are arguing that the claims that the court should consider are the May suspension and the termination in July 2000.

[00:13:06] Speaker 02:
The ones that the district considered.

[00:13:07] Speaker 03:
Yes.

[00:13:08] Speaker 02:
Yeah.

[00:13:09] Speaker 03:
Thank you. I'd just like to reserve two minutes.

[00:13:11] Speaker 02:
Okay.

[00:13:12] Speaker 03:
Thank you, counsel.

[00:13:15] Speaker 05:
Good morning, Your Honors, and may it please the Court. I'm Assistant US Attorney Andrew Vaden, appearing for the Secretary. In our view, the issues raised by this appeal are straightforward. Simply put, Spencer's amended complaint simply doesn't plausibly allege that the adverse actions at issue were motivated by racial discrimination or by retaliation. That's true for both of those claims. But I would like, if I may, to make one overarching point. at the outset. You know, reading Spencer's briefs and hearing the presentation from my friend on the other side just now, you might get the impression that this is a dispute over a single mislaid syringe in Dr. Spencer's office.

[00:13:54] Speaker 05:
But as I think some of the questioning from the panel elicited, while the syringe may have been the beginning of the story, it was not the full extent of the story. You can see that most clearly in paragraph 18 of the complaint. which is, I believe, on the joint appendix of page 30, which explains essentially that the medical facility director described the reason for her suspensions as significant concerns regarding Dr. Spencer's clinical practice and clinical judgment.

[00:14:26] Speaker 05:
So occasionally you might hear, well, you know, this is another investigation of the syringe incident. But the important thing here is that this is a set of wide-ranging concerns that initiated with the finding of the syringe, but that in fact the investigation that that started raised a number of other concerns related to patient safety.

[00:14:49] Speaker 04:
Can you restate what language you're pointing to? Absolutely.

[00:14:52] Speaker 05:
Absolutely. So it's on paragraph 18 of the amended complaint. And let me, if you'll forgive me, just one moment.

[00:15:02] Speaker 05:
The fifth and sixth lines of paragraph 18, Dr. Heimel, he is... Well, this might give rise to a different concern.

[00:15:09] Speaker 04:
Oh, okay. I meant to ask Mr. French about it. Okay. But a favorable reading to the plaintiff of this entire complaint is that... she was only fired because of the violence, isn't it? Oh, I don't agree with that. The non-complaint information suggests that's not true.

[00:15:29] Speaker 05:
Well, I don't think you have to go beyond the four corners of the complaint to reach that conclusion. I think that language that I pointed to in paragraph 18, there are significant concerns regarding clinical practice and clinical judgment.

[00:15:43] Speaker 05:
That's broad. I think there's another way to get to- It could be tied just to- I don't think that's a natural inference from that language in the complaint. I think if there's any doubt there, I think you can also look at the exhibits to the motion to dismiss. These are the suspension letters themselves from January, March, and May.

[00:16:05] Speaker 05:
that provide a more fulsome description. That's starting in the joint appendix, starting at page 109. And it kind of sets out in more detail the concerns underlying the facility suspension of Dr. Spencer. And the reason that's before the court is explained in our first footnote in the red brief on the statement of the case that basically says these are referred to in the complaint.

[00:16:33] Speaker 05:
These are not subject to dispute. Some of these documents attached to the motion to dismiss actually, as we point out in that footnote, our friend on the other side invited the court to consider those same documents in the briefing below.

[00:16:45] Speaker 01:
But we don't need to rely on this, right? I mean, even if we assume that it was because of the trigger point injection in the office, there's still the issues with the comparators and...

[00:16:58] Speaker 05:
I agree with that, absolutely. Even if you were to resolve the dispute we're discussing just now in favor of plaintiff, I think you would still reach the same conclusion. I do think it does sneak into the analysis sometimes. Like, for instance, Spencer will say, well, this investigation occurred more than 120 days after the incident. And he would then further allege that this is somehow a departure from established norms or policies.

[00:17:24] Speaker 04:
I mean, one of the approaches in a case like this is to take limited discovery properly get in the termination letter and move for summary judgment and you actually the only reason this is in the record is because you filed an alternative motion for summary judgment which the district court didn't reach i'm not sure that we can refer PB Harmon Zuckerman, At least for my purposes, it would be more helpful if you argue the case without referring to the exhibits for the motion to dismiss.

[00:17:52] Speaker 05:
PB Harmon Zuckerman, No, that's entirely fair. Your Honor. And that's why I started with paragraph 18 of the complaint that language there gives you everything you need to understand that this wasn't just PB Harmon Zuckerman, As you know, a couple of investigations and three suspensions and determination related to a single cat syringe. You know, everything you need is in paragraph 18 to understand that the facility here had some wide-ranging concerns about Dr. Spencer's clinical practice in terms of judgment, the patient safety concerns the facility takes very seriously, and that, you know, even within the four corners of the complaint is the agency's proffered rationale for the adverse action.

[00:18:27] Speaker 04:
So if we read instead the complaint favorably to the plaintiff as saying the only thing she was ever identified as doing wrong is the one incident, certainly the retaliation claim seems to become stronger.

[00:18:48] Speaker 05:
I'm not sure I agree, because I think ultimately the retaliation claim has a number of issues that don't relate to the specific rationale proffered by the agency. Your Honor pointed to the Breeden issue, which we think is a very significant one. This is ultimately a single chain of adverse actions that began before the protected activity in question.

[00:19:18] Speaker 04:
Can you respond to Mr. Branch's argument, which is very much based on paragraph 15 of the complaint, which is essentially, you want to view it as a continuous event, but what the complaint says is she was put on an FPPE, she was making progress, then she had this meeting with Dr. Pacellas, where she engaged in protected activity, and then things escalated.

[00:19:40] Speaker 04:
She had not been formally suspended, She was promptly reinvestigated for something that was four months old. She was suspended three times and then fired.

[00:19:49] Speaker 04:
So why a motion to dismiss might have an extremely strong summary judgment motion? Why is that not a plausible reading?

[00:19:58] Speaker 05:
Well, I understand. I think the best way to see why our view is plausible is to look at plaintiff's own briefing.

[00:20:06] Speaker 04:
Her version has to be implausible. It doesn't matter if you- Understood.

[00:20:11] Speaker 05:
Thank you. The point that I would like to make is to draw on plaintiff's own briefing in this matter. On page three of the reply brief, if I can find, she says, the complaint alleges a single disciplinary progression arising from the same underlying controversy. That's page three of the reply brief. That's not a phrase that we're taking out of context. That's an entire subsection of the reply brief. So she's saying this started back in 2018, and then the protected activity occurred, and then the process continued.

[00:20:44] Speaker 05:
Her argument is, well, it escalated. And I agree that that's the conclusion she's asking you to draw. But I think here, ultimately, she's pleading conclusion. She's not pleading sufficient factual matter that would make that conclusion plausible. Because every retaliation plaintiff is going to come forward with a protected activity, just about everyone. They're going to come forward with an adverse action. And they're going to invite the court to infer that one caused the other. But here, you have a series of events that started well before.

[00:21:17] Speaker 05:
the protected activity in question. And as investigations naturally do, they uncover things.

[00:21:22] Speaker 04:
So if you read paragraph 15, one reading of this is, the investigation was over.

[00:21:32] Speaker 04:
I accuse them of being racist.

[00:21:34] Speaker 04:
Next sentence, Dr. Veselas initiated a second fact-finding investigation. It reads as if the allegation is the second investigation wouldn't have started.

[00:21:44] Speaker 04:
I understand.

[00:21:47] Speaker 05:
I think your honor is correct that she's trying to connect those two in the way that you suggest. In essence, it's a sort of a temporal proximity sort of claim. Exactly. But I think, as your honor pointed out earlier, well, first of all, I'll mention that this court has held, I think most recently, Ho versus Garland, Your Honor's decision in that case. Yes. You know, the court has pointed out that there's no bright line rules in terms of temporal proximity, right?

[00:22:19] Speaker 05:
Each case is decided based on, you know, at the motion to dismiss stage is decided on judicial experience and common sense, trying to weigh whether these particular facts alleged here nudge the claim over the line from conceivable to plausible. And I think just by juxtaposing those two details without more facts doesn't overcome the sort of the breeding point that we make, that you see us kind of expand upon at length, you know, starting at page 30 in our red brief.

[00:22:52] Speaker 05:
So I think for those reasons, we ultimately think the retaliation claim is not plausible.

[00:22:59] Speaker 02:
So how are you conceiving of the timing issue? So the district court had a timing rationale for saying that the retaliation claim doesn't get out of the dismissal stage. That's right. And you're not relying on that for square because you're at least accommodating the possibility that there's some allowance as to timing because of the sequence of events.

[00:23:21] Speaker 05:
Well, I think they're both right. We think the district court got it right. So the ultimate question here is protected activity in December 2018.

[00:23:28] Speaker 05:
We have an adverse action. The only retaliation claim relates to the July 2019 suspension. So the question is, is there a plausible inference connecting the December 2018 protected activity with the July 2019 termination? Because if nothing happened in between, than just as a matter of timing alone. Right. If nothing happened in between, I think you would have decided this case without oral argument, perhaps, because it would just be so straightforward. But it didn't materialize out of nowhere. That's the point. No, and I understand.

[00:24:01] Speaker 05:
And it's a real point. And I think we do our very best to address it on pages, I think, 30 through 32 of the Red Brief. And I think ultimately, it's the idea this is something that was already underway.

[00:24:14] Speaker 05:
And because it was underway and then an event happened, the second event could not have caused the initial event. We understand that plaintiff contends otherwise.

[00:24:24] Speaker 04:
Basically, just given the in context you'd ask us to say there is this close temporal proximity between the protected activity and it seems this investigation but absent some other indication from the complaint that the va was ever motivated by your protected activity weighed with the breeding point it's just not temporal proximity isn't enough is that

[00:24:49] Speaker 05:
I suppose I think the one thing I would insist upon is that when we're looking at the analysis, the protected activity is December 2018, very clear from the briefing. The only retaliation claim before you relates to the July 2019 termination. So those are not very close in the language of the temporal proximity cases. So the question is, can plaintiff come forward with something extra, something that would render the inference plausible?

[00:25:17] Speaker 01:
So underlying your argument is that you have to look at each discrete act. And everybody agrees now that she has not exhausted her claim as to the January investigation. It might be a different story if we had you know, the report of racism in December, and then we were looking at the discreet act of the January investigation, but we're not because it's not exhausted. And the case law suggests there is no ongoing offense anymore.

[00:25:48] Speaker 01:
It has to be discreet acts. And we're looking at July and December.

[00:25:52] Speaker 05:
That's exactly right.

[00:25:55] Speaker 04:
Have we decided a temporal proximity case that's similar to this in that there's protected activity and then something happens eight months later but that something is the result of something you started doing with. So there is, I'm not familiar with.

[00:26:14] Speaker 05:
I don't have one that comes to mind. I would refer you to the briefs in case I'm overlooking something just off the top of my head. But I think this is just- It's just what makes it a little bit more complicated. I'm not- No, I definitely.

[00:26:26] Speaker 02:
It seems different about this case than your normal retaliation case, potentially. And I don't know that this goes to the pleadings, but just as an abstract matter is that usually in a lot of retaliation cases, somebody files a complaint. And so that's something that an institution is just by definition of. Here it's a comment from a comment from one person to another. And so to be a retaliatory act.

[00:26:48] Speaker 02:
By nature, someone would have to be acting based on that comment.

[00:26:53] Speaker 02:
And so whatever the retaliatory act is would have to be undertaken with awareness of that comment and need to respond to that comment.

[00:27:02] Speaker 02:
And you can infer that in a case in which there's a complaint because that's just something that an institution is aware of. If it's a comment to an individual person, then it seems like whatever the retaliatory sequence of events is that gives rise to a claim would have to be something against the backdrop of awareness in the backdrop of awareness of that comment.

[00:27:24] Speaker 05:
No, I think that's quite right, Your Honor. And I think that weighs further against the plausibility of the allegations. You know, this is not the sort of a typical complaint where the decision maker would sort of be presumed to be aware of the protected activity.

[00:27:36] Speaker 02:
And would we not, though?

[00:27:37] Speaker 05:
Would we not presume, for complaint purposes, would we not presume that? Say, if the complaint plausibly alleged it. I don't, you know, because I... I'm not even sure that there's a conclusion pleaded in the complaint that there was the requisite awareness, but that's not even the question. Of course, the question is whether there's sufficient factual matter that they brought forward.

[00:27:55] Speaker 04:
Because the allegation would be that Facelis told Heimel. Right.

[00:28:00] Speaker 05:
If they allegedly alleged that, that would do it, yes.

[00:28:03] Speaker 04:
It runs into the issue that there's no possible way she could know about that without discovery.

[00:28:08] Speaker 05:
Well, I mean, that allegation would be difficult to make, but obviously plaintiffs are painting on a blank canvas. They can plausibly allege their claim.

[00:28:19] Speaker 02:
People may not know about comparators too. And that just means that the claim can't go forward even if it might.

[00:28:25] Speaker 04:
I just had one last question to clarify a response to an earlier question.

[00:28:29] Speaker 04:
It seems to be coming around now that the investigation is not actionable. Under Morgan, are you disputing that under Morgan? We can still look to those facts as background facts for the exhausted claim. So maybe they're We've been discussing how relevant and probative these intermediate facts are, but surely we can look at the facts in support of the actionable termination claim, right?

[00:28:56] Speaker 05:
I do think, you know, those are, you know, facts that she alleges that are fair game for inferences. We obviously have a disagreement with her friend on the other side about whether that's sufficient.

[00:29:07] Speaker 02:
Make sure my colleagues don't have additional questions.

[00:29:10] Speaker 02:
Thank you very much.

[00:29:13] Speaker 02:
Dr. Branch, we'll give you the two minutes you asked for.

[00:29:15] Speaker 03:
Thank you. And just without repeating myself just once again, this is, we're at the pleading stage of this complaint. In the court, the panel has asked a number of questions that should be part of the record, but that would come forward from summary judgment and from discovery. There were facts alleged in the complaint, specifically as it relates to Dr. Facelis, that it was in this meeting in December 2018 that Dr. Facelis said in response to Dr. Spencer, I'm going to initiate this investigation, you know, a second investigation.

[00:29:53] Speaker 03:
So that goes to... the first part of the retaliatory acts that concluded with the termination in July, but it begins with Dr. Fasalis initiating a second investigation and then three additional suspensions. In terms of the retaliation claim, the issue is, even though she only preserved the May 2019 suspension and the termination, the fact that the investigation was initiated and she was suspended on three occasions, January, March, and then May, that again would weigh in favor of a plausible claim for retaliation.

[00:30:39] Speaker 03:
Certainly, if you raise a claim, an issue, you're taking this action for discriminatory reasons against me, and the response is, an investigation as well as three suspensions.

[00:30:51] Speaker 04:
Mr. Branch, I apologize to interrupt, but I want to ask you about what I think is a crucially important fact. Sure.

[00:30:59] Speaker 04:
Does this complaint allege that she was fired just for the 2018 incident, the single incident?

[00:31:08] Speaker 03:
That's that was the intention of the complaint. Yes, that she is. She's alleging that she was terminated because of this trigger point injection incident. So, yes, but she also alleged this complaint.

[00:31:26] Speaker 04:
You had the termination law.

[00:31:29] Speaker 03:
We had the termination letter and she disputes the other reasons given in the termination letter, but she believes that she was terminated because of this trigger point incident.

[00:31:46] Speaker 01:
This isn't in your complaint, but the ALJ found that the termination decision was made by this council of doctors, nine doctors, the MEC, and there's no allegation or suggestion that they knew about the report of racism by your client?

[00:32:04] Speaker 03:
Well, I think the termination decision was made by Mr. Heimel.

[00:32:09] Speaker 01:
Well, according to the ALJ, there was a whole committee that convened and reviewed the whole case and made a recommendation, and there were nine different doctors. Yeah, but there's no indication that they knew about it. It's hard to be retaliatory if they didn't know about the complaint, as the chief judge mentioned.

[00:32:25] Speaker 03:
Well, Heimel issued a letter that says there were nine or 10 allegations or specifications and five or six were sustained, but Heimel made the final decision.

[00:32:38] Speaker 02:
And why do we glean from the complaint that Heimel knew about the interaction between Spencer and Dr. Faisal's?

[00:32:49] Speaker 03:
Dr. Fasalis initiated the investigation. It would have to be approved by Heimel. Heimel would have to be involved. I think he actually approved the three suspensions.

[00:33:00] Speaker 02:
Right, but why don't we think that he would have known about the comment made by Fasalis to Spencer?

[00:33:08] Speaker 03:
That is... I'd have to actually take another look at the complaint to see if we specifically alleged that she made some complaint to...

[00:33:19] Speaker 03:
I'm all concerning Dr. Salas. I'm inclined to say she probably did because she complained to everyone about the treatment that she received before her termination.

[00:33:29] Speaker 02:
Make sure my colleagues don't have additional questions for you. All right. Thank you, counsel. Thank you to both counsel. We'll take this case under submission.