[00:00:00] Speaker 01:
That will move to the final case on the calendar.

[00:00:05] Speaker 01:
I'm not sure whether it's pronounced RC or RS versus Honeywell.

[00:00:30] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:32] Speaker 02:
My name is Barbara Cowan, and I represent the appellate in this case, Linda Arcee.

[00:00:38] Speaker 02:
Linda Arcee took numerous steps to prevent Honeywell from making a false claim for payment to the United States government.

[00:00:46] Speaker 02:
Ms.

[00:00:47] Speaker 02:
Arcee remained steadfast on the importance of delivering a safe and competent product to the government, which would be used in several Boeing aircraft, including Air Force One.

[00:00:59] Speaker 02:
In fact, Boeing representatives even stated that Ms.

[00:01:03] Speaker 02:
Arcee should not be pressured to sign off on a product that was not ready for final delivery.

[00:01:10] Speaker 02:
The specific item that she was trying to prevent

[00:01:13] Speaker 02:
from being falsely submitted to the government was software aviation, which would have certified that it was FAA compliant, meaning that it met all rules for FAA certification, which was a requirement under the contract with Boeing and Honeywell.

[00:01:32] Speaker 00:
Did she ever mention the word fraud or identify the fraud that she was trying to prevent, or is that not necessary to engage in protected conduct?

[00:01:43] Speaker 02:
Thank you, Judge Tunheim.

[00:01:44] Speaker 02:
She did not mention, she did not specifically state the word fraud, but she is not required to.

[00:01:51] Speaker 02:
Under this court's precedent, and specifically in Mooney v. Fife, which was decided in September of 2024,

[00:02:01] Speaker 02:
the court here, the Ninth Circuit, rejected the investigatory requirement, which was previously mentioned under Hopper.

[00:02:08] Speaker 02:
And specifically in this case, the district court decided this motion for summary judgment solely on the investigating fraud component.

[00:02:18] Speaker 02:
But the statute is clear in its post-2009 amendments.

[00:02:23] Speaker 02:
The statute says that a protected employee can be investigating fraud or

[00:02:30] Speaker 02:
take steps to prevent a false claim from being made to the United States government?

[00:02:36] Speaker 04:
That's sort of beside the point, because what she has to be trying to prevent, first of all, it doesn't say prevent.

[00:02:45] Speaker 04:
It says to stop a false claim.

[00:02:48] Speaker 04:
And in all cases, from what I can see, they had some knowledge that claims

[00:02:59] Speaker 04:
were being falsified.

[00:03:01] Speaker 04:
Here, there's no such, it's all completely projected into the future, right?

[00:03:06] Speaker 04:
I mean, she's essentially, she's not saying that she knows that they have ever actually submitted a false claim.

[00:03:12] Speaker 02:
Correct.

[00:03:13] Speaker 04:
But that's not- And that's different from all the other cases.

[00:03:17] Speaker 02:
Well, in this case, Your Honor, that's not required.

[00:03:20] Speaker 02:
And specifically, I would point to in the record, the email that she sent to her supervisors on April 16th, 2019.

[00:03:29] Speaker 02:
which is at page 484 of the record.

[00:03:32] Speaker 02:
In this email, Ms.

[00:03:33] Speaker 02:
Arcee specifically told her supervisor that she was relaying issues detected with the release of certification data items that contractually Honeywell is required to adhere to in the release of avionic product software.

[00:03:49] Speaker 02:
And in this case, Ms.

[00:03:51] Speaker 02:
Arcee linked the fact that she was preventing the certification from occurring

[00:03:57] Speaker 02:
with the fact that Honeywell was required to contractually deliver an FAA compliant software product per the terms of the contract.

[00:04:07] Speaker 02:
That's in her April 16th, 2019 email.

[00:04:11] Speaker 02:
It's also in her May 2019 notice of grievance.

[00:04:14] Speaker 02:
It's also in her declaration which is at the record.

[00:04:18] Speaker 04:
To any allegation that they were going to file a piece of paper

[00:04:26] Speaker 04:
certifying this as being compliant when it wasn't or that they had, certainly not that they had.

[00:04:35] Speaker 04:
And then there's a knowledge component, right, where they have to know that it was not, because it's a fraud claim, so it has to be that they know it isn't true.

[00:04:45] Speaker 04:
And if they think it is true, but she thinks it isn't true, that doesn't do it either, right?

[00:04:51] Speaker 02:
Well, under the statute, Your Honor, and under the case law, if she's

[00:04:55] Speaker 02:
stopping a claim from being made or taking steps to do that, she does not have to know that they are absolutely committing fraud.

[00:05:03] Speaker 02:
That's not the standard.

[00:05:05] Speaker 02:
The standard is whether she believed it, which the record is that she did in her declaration and the record at pages 969 to 970, and also that an objective person would believe.

[00:05:18] Speaker 04:
Well, she believed this was uncompliant, but she didn't believe they were certifying it because they hadn't certified it.

[00:05:23] Speaker 02:
But she refused to sign off on it.

[00:05:25] Speaker 02:
That was the only reason they hadn't certified it.

[00:05:28] Speaker 02:
They didn't certify it during her employment because she refused to sign off on it.

[00:05:34] Speaker 02:
And Boeing, for the objective factor, Peter Marflitt from Boeing specifically said that Ms.

[00:05:41] Speaker 02:
R.C.

[00:05:41] Speaker 02:
should not be pressured to sign off on something just to meet a contractual deadline.

[00:05:48] Speaker 02:
And in this case, that's exactly what was happening.

[00:05:51] Speaker 02:
And then what occurred is that after the decision had been made to terminate her and after she was forced onto FMLA leave, then all of the products that she refused to certify were in fact certified.

[00:06:08] Speaker 02:
And in this case,

[00:06:11] Speaker 02:
We know that a reasonable employee in Ms.

[00:06:13] Speaker 02:
Arcee's position would have believed that fraud was happening because here there was an explicit refusal by her to sign off on non-compliance software that prevented funds from being dispersed.

[00:06:28] Speaker 02:
In her declaration that was submitted, which was not objected to nor refuted, she stated,

[00:06:34] Speaker 02:
I was pressured by Honeywell to approve or sign off on software products targeted for production so that Honeywell could deliver this product, thus be paid from the government contract Boeing is the supplier on.

[00:06:48] Speaker 02:
In this case, Ms.

[00:06:49] Speaker 02:
Arcee, on six different occasions, she submitted CARS, which are corrective action reports, which were external, meaning Boeing was able to see them as the customer.

[00:07:03] Speaker 02:
Ms.

[00:07:03] Speaker 02:
Arcee, in February of 2018, her performance review stated that she met all standards at Honeywell and she was actually slated for promotion.

[00:07:14] Speaker 02:
And then that next year, she refused to sign off on a product because she knew her signing off on it would trigger the Category 1 milestone under the contract and would thus trigger payment.

[00:07:27] Speaker 02:
from the government contract to Honeywell.

[00:07:31] Speaker 02:
That is what she stopped.

[00:07:33] Speaker 02:
And specifically under the statute, under 31 USC 3730 subdivision H1, it does not require that an employee be acting outside of a compliance role.

[00:07:47] Speaker 02:
The statute protects any employee, not just those in non-compliance role.

[00:07:54] Speaker 02:
Here, six times between December 2017 and July 2019, Ms.

[00:08:01] Speaker 02:
Arcee took action to prevent the software from being approved.

[00:08:05] Speaker 02:
Because if she approved it, if she signed off that this was FAA certified, then that would trigger the payment under the category one milestone under the contract.

[00:08:16] Speaker 02:
And that is what she stopped, and that is what she sought to prevent.

[00:08:20] Speaker 00:
It's clear that she was concerned about safety issues, compliance with the safety requirements I think was part of her job.

[00:08:32] Speaker 00:
I'm trying to figure out how that extends to the fraud argument when she was simply reporting and refusing to sign, certainly, because she was concerned that it wasn't technically compliant and would cause safety violations.

[00:08:48] Speaker 02:
Yes, Your Honor, and I think that in this case, the argument to that is that she at times categorized it as safety issues and the reason for that is that she is an engineer and in her statement and in the cars, what was happening was that the software code was not regenerating from the source code.

[00:09:17] Speaker 02:
And the reason that is a safety concern is that number one FAA requirements to be FAA certified it must occur.

[00:09:27] Speaker 02:
The reason for that is that in an emergency that is the backup system in the aircraft.

[00:09:33] Speaker 02:
So that is why at times she referred to it as a safety concern is that if an aircraft is having a problem in air the software code needs to automatically regenerate from the source code

[00:09:46] Speaker 02:
to prevent a catastrophic event happening in aviation.

[00:09:50] Speaker 02:
And that is why at times she referred to it as a safety concern.

[00:09:54] Speaker 02:
But the testimony of Paul LaPietra, one of her supervisors on pages 749 and 750 of the record, makes clear that this is, number one, a major issue.

[00:10:07] Speaker 02:
That is his testimony that it is a major issue and that specifically the objectives

[00:10:15] Speaker 02:
DO 178, which was an industry guideline, which if met, meant that FAA certification was automatic.

[00:10:26] Speaker 02:
That is the reason that she categorized this safety issue and why it falls under fraud, is because if she says, yes, this software code regenerates,

[00:10:36] Speaker 02:
It meets all FAA rules and therefore is FAA compliant.

[00:10:42] Speaker 02:
That triggers the payment under the government contract.

[00:10:45] Speaker 01:
Council, I'm looking at paragraph 6 of her declaration on ER 970.

[00:10:51] Speaker 01:
I was pressured by Honeywell to approve sign off on software products targeted for production with regulatory compliance issues

[00:11:02] Speaker 01:
for the P-8A MMA aircraft so that Honeywell could deliver the product and thus be paid from the government contract Boeing is the supplier on.

[00:11:11] Speaker 01:
So in your view, does her discussion there of regulatory compliance issues sufficient to bring this within the ambit of the anti-retaliation provisions of the FCA?

[00:11:25] Speaker 02:
Yes, it is, Your Honor, because the FCA specifically states that any employee is protected.

[00:11:31] Speaker 01:
No, I know that any employee is protected, but it has to do with what it is you're trying to stop.

[00:11:38] Speaker 02:
Yes, Your Honor.

[00:11:39] Speaker 02:
Because if the software was not compliant, then that prevented government funds from being distributed.

[00:11:45] Speaker 02:
And that is precisely what the Boeing supplier, Peter Marflitt, told her supervisor, is that she should not be pressured to sign off on something just to meet the deadline.

[00:11:56] Speaker 02:
And it is that regulatory compliance that

[00:12:00] Speaker 02:
as Honeywell currently is allowed to self-certify that it is FAA compliant.

[00:12:06] Speaker 02:
So regulatory compliance in this context equals FAA certification.

[00:12:11] Speaker 01:
And it equals, in your view, fraud.

[00:12:14] Speaker 02:
Yes, Your Honor, because if she signed off on this saying that this avionics software was FAA compliant and it was not, that triggers a payment under the contract based on a fraudulent premise.

[00:12:27] Speaker 04:
Isn't the question how

[00:12:33] Speaker 04:
closely connected her actions have to be to any potential fraud.

[00:12:37] Speaker 04:
As I said before, as far as I can tell in all the other cases, there was actual, the person at least believed that there was actual ongoing fraud.

[00:12:50] Speaker 04:
And she was trying to stop something that was already happening, right?

[00:12:54] Speaker 04:
Here, I mean, there are various, and this is kind of interesting, but there are various steps, I mean, before there would be

[00:13:02] Speaker 04:
actual fraud.

[00:13:03] Speaker 04:
At the time she was doing this, there was no certification.

[00:13:10] Speaker 04:
You didn't know what they were going to say, whether Honeywell was going to actually certify.

[00:13:16] Speaker 04:
You didn't know whether Boeing was going to certify.

[00:13:19] Speaker 04:
Boeing was the one that actually had to do the certification because Boeing was dealing with the government, not Honeywell.

[00:13:25] Speaker 04:
Right?

[00:13:26] Speaker 04:
So the question really, to me, I mean, I think you're right that there's

[00:13:32] Speaker 04:
you know, some probability that this was going to happen, but it never had happened, and it might not, and very much might not happen, and is that enough?

[00:13:43] Speaker 04:
That's really the question, given the fact that there's no, there was no belief of fraud having ever occurred or even being about to occur.

[00:13:54] Speaker 02:
Your Honor, the standard under Mooney is whether a reasonable employee might possibly believe that

[00:14:00] Speaker 02:
Some fraud is occurring.

[00:14:03] Speaker 02:
Right.

[00:14:03] Speaker 02:
That's different.

[00:14:04] Speaker 04:
That's entirely different.

[00:14:05] Speaker 04:
That's what I'm trying to say.

[00:14:07] Speaker 01:
In Mooney, there's no question that the employee testified as to he thought it was fraud, right?

[00:14:16] Speaker 02:
I think there was some testimony based on the opinion, though it was really the underbilling and the overbilling that was the issue.

[00:14:24] Speaker 04:
The sentence you wrote is completely contrary to what you're saying.

[00:14:28] Speaker 04:
Because you read, I mean,

[00:14:30] Speaker 04:
Because the whole problem here is that there was no belief that fraud is occurring.

[00:14:36] Speaker 04:
It's that it might occur in the future.

[00:14:38] Speaker 02:
Your Honor, it was that if she certified this, that was going to trigger the Category 1 milestone under the contract, which triggers the payment to Honeywell.

[00:14:46] Speaker 02:
And that is the fraud.

[00:14:47] Speaker 04:
But it doesn't come within the language of Mooney.

[00:14:50] Speaker 02:
Respectfully, it does, Your Honor, because she's saying that if she certifies this,

[00:14:56] Speaker 02:
Honeywell gets paid under the contract.

[00:14:58] Speaker 02:
That's what her supervisor, Mr. Teague, told her that's also in the declaration.

[00:15:02] Speaker 02:
And that is what she was trying to stop from occurring.

[00:15:06] Speaker 02:
And that is what's protected under the FCA.

[00:15:08] Speaker 02:
And I'd like to reserve the balance of my time.

[00:15:11] Speaker 01:
We'll give you a couple of minutes, Counsel.

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

[00:15:22] Speaker 03:
Good afternoon.

[00:15:23] Speaker 03:
May it please the court.

[00:15:24] Speaker 03:
My name is Leah Fried.

[00:15:25] Speaker 03:
I am counsel for Honeywell International.

[00:15:30] Speaker 03:
The district court's dismissal of appellant Linda Arce's claims under both the False Claims Act and the Family and Medical Leave Act can be upheld on the record before this court.

[00:15:41] Speaker 03:
There are multiple and alternate grounds for dismissal of each of Arce's claims.

[00:15:46] Speaker 03:
I want to briefly address the Mooney v. Fife case, which was issued ten days after Honeywell submitted its answering brief in this appeal.

[00:15:55] Speaker 03:
I would submit that the elements of the prima facie case upon which Ms.

[00:16:00] Speaker 03:
Barcy bears the burden remain the same under the Mooney case.

[00:16:05] Speaker 04:
The district court's analysis was wrong under Mooney.

[00:16:09] Speaker 03:
I agree with that, Your Honor.

[00:16:10] Speaker 03:
In light of the Mooney decision, you cannot uphold

[00:16:13] Speaker 03:
the district court's decision on the very same basis, but on this record, there are several alternate bases upon which you can affirm.

[00:16:21] Speaker 03:
What Mooney did affirm is that the McDonnell Douglas burden shifting as standard applies to FCA claims.

[00:16:29] Speaker 03:
Mooney also clarified that efforts to stop an FCA violation are a protected activity.

[00:16:36] Speaker 03:
Third, Mooney adopted the standard set forth in Moore v. California Institute of Technological

[00:16:43] Speaker 03:
technology jet propulsion lab for protected activity, meaning there's both a subjective standard that Ms.

[00:16:50] Speaker 03:
R.C.

[00:16:51] Speaker 03:
had to believe there was possible fraud and objectively that a reasonable person would need to believe there may be fraud, meaning a fraudulent payment to be made to the government.

[00:17:04] Speaker 04:
So why, the language of the suggestion is kind of odd.

[00:17:08] Speaker 04:
It's just stop the

[00:17:12] Speaker 04:
a violation.

[00:17:15] Speaker 04:
Presumably that means the violation doesn't yet have to have occurred if you're going to stop it, right?

[00:17:21] Speaker 04:
So why isn't your Ms.

[00:17:25] Speaker 04:
Cowan's analysis right, that she was trying to prevent a certification because she knew that the certification would lead to the request for payment from the government

[00:17:42] Speaker 04:
based on a false statement, i.e.

[00:17:47] Speaker 04:
that there was compliance.

[00:17:49] Speaker 03:
Your Honor, I would say two things are missing from this record.

[00:17:51] Speaker 03:
The first is that Ms.

[00:17:53] Speaker 03:
Arcee believed that there was possibly a fraudulent request for payment to the government.

[00:17:59] Speaker 04:
Well, not yet, but she believed that it would ineluctably flow from her certification.

[00:18:06] Speaker 03:
And Your Honor, what I would point to is the fact that there's nothing in this evidence to cite to any statement by Ms.

[00:18:12] Speaker 03:
Arcee

[00:18:12] Speaker 03:
about any payment whatsoever.

[00:18:14] Speaker 03:
Today, her counsel has mentioned her affidavit and the fact that there's reference to a milestone.

[00:18:21] Speaker 03:
First, that was never identified by Ms.

[00:18:24] Speaker 03:
Arcee during the numerous complaints she made over a four-year period.

[00:18:29] Speaker 03:
Second, her declaration is not cited in her brief opposing the motion for summary judgment.

[00:18:34] Speaker 03:
If you look at the record at page 728, she makes no reference to fraudulent payments whatsoever.

[00:18:42] Speaker 04:
But it was inherent in the situation.

[00:18:45] Speaker 04:
There was a contract.

[00:18:46] Speaker 04:
The contract said that they had to agree, they had to follow the regulatory standards, and if they submitted a certification, they would get paid.

[00:18:59] Speaker 03:
But Your Honor, there were multiple certifications.

[00:19:02] Speaker 03:
There's nothing in this record that any certification that she was

[00:19:05] Speaker 03:
filing non-compliances on was contingent to any milestone.

[00:19:10] Speaker 03:
The record is devoid of any of that evidence.

[00:19:11] Speaker 04:
What does that mean?

[00:19:12] Speaker 04:
I don't even know.

[00:19:13] Speaker 04:
What do you mean by milestone?

[00:19:15] Speaker 04:
You mean a point at which they would ask for payment?

[00:19:18] Speaker 03:
What Ms.

[00:19:18] Speaker 03:
Cowan just presented to this panel was that there is an affidavit that was never cited in the motion for summary judgment response that indicates she believed there was a milestone related to this certification.

[00:19:31] Speaker 04:
What does a milestone mean?

[00:19:32] Speaker 03:
A milestone means

[00:19:33] Speaker 03:
Within the contract, there are certain timelines and deadlines to be made.

[00:19:37] Speaker 03:
Those are milestones, deadlines.

[00:19:40] Speaker 04:
But it's not related to payment?

[00:19:41] Speaker 04:
It's not that once you reach a milestone, you get paid?

[00:19:45] Speaker 04:
I don't know.

[00:19:45] Speaker 03:
I apologize.

[00:19:46] Speaker 04:
Once you reach a milestone, do you get paid?

[00:19:49] Speaker 03:
There's nothing in this record on that, Your Honor.

[00:19:52] Speaker 04:
Okay.

[00:19:53] Speaker 04:
So the milestones doesn't seem pertinent.

[00:19:55] Speaker 04:
So the question is, is it simply inherent?

[00:19:58] Speaker 04:
I mean, do we know from this record that

[00:20:03] Speaker 04:
the certification was a requirement to get paid eventually?

[00:20:10] Speaker 03:
Not in the record before the district court, Your Honor.

[00:20:15] Speaker 03:
I would also distinguish the Mooney case from this case on some of the aspects that Your Honor has already identified.

[00:20:22] Speaker 03:
First, in Mooney, that was a situation where the employer was billing directly to the U.S.

[00:20:27] Speaker 03:
government.

[00:20:28] Speaker 03:
Inherent and a claim of improper billing is

[00:20:32] Speaker 03:
reference to a fraudulent payment.

[00:20:35] Speaker 03:
In Mooney, the plaintiff also complained that the employer's billing activities created, quote, a significant legal liability risk.

[00:20:44] Speaker 03:
This put the employer on notice as to fraud.

[00:20:48] Speaker 03:
And with respect to causation, that employee was terminated within days of the protected activity, and the plaintiff established pretext in this case.

[00:20:57] Speaker 03:
None of these facts are present on the record for this appeal.

[00:21:00] Speaker 03:
We've already spoken about the fact that Ms.

[00:21:03] Speaker 03:
R.C.

[00:21:04] Speaker 03:
cannot make an objective showing or a subjective showing that she believed there were fraudulent payments to be made.

[00:21:12] Speaker 01:
Again.

[00:21:12] Speaker 01:
So, counsel, I want to go back to one of Judge Rezan's questions.

[00:21:15] Speaker 01:
Yes.

[00:21:16] Speaker 01:
When I'm looking again, and at this point, I don't necessarily find it relevant that this was cited to the district court, but I'm looking at page, again, paragraph six of her declaration.

[00:21:29] Speaker 01:
I was pressured to sign off regulatory compliance issues so that Honeywell could deliver the product and thus be paid from the government contract.

[00:21:39] Speaker 01:
So, I mean, I think a fair reading of that is that I'm complaining about something that's a prerequisite to our getting government money.

[00:21:51] Speaker 03:
I have two responses to that, Your Honor.

[00:21:53] Speaker 03:
The first is, as to Judge Brazan's point, there's no

[00:21:56] Speaker 03:
record here as to how many steps removed that compliance argument is from payment.

[00:22:03] Speaker 03:
Second, I would argue it is relative.

[00:22:05] Speaker 04:
Isn't that the key legal question here?

[00:22:07] Speaker 04:
How many steps removed does it have to be?

[00:22:10] Speaker 04:
Because the parties really haven't engaged in very much because you keep worrying about whether you said the word fraud, which doesn't seem terribly pertinent, and your opponents say, well, it was going eventually to lead to a fraudulent action.

[00:22:27] Speaker 04:
if they ever got paid.

[00:22:29] Speaker 04:
So it's different from the other cases because in the other cases there was the perception at least that fraud was going on.

[00:22:40] Speaker 04:
Here it hadn't gone on yet, but the language says stop a violation.

[00:22:44] Speaker 04:
So why isn't that good enough?

[00:22:45] Speaker 03:
I think it goes to two elements, Your Honor.

[00:22:47] Speaker 03:
First is that there's this objective standard that one would need to know that she's

[00:22:51] Speaker 03:
that an objective person looking at the situation would believe there's the possibility of fraud.

[00:22:56] Speaker 04:
If it's a hundred steps removed... Well, why wouldn't a possibility in the future?

[00:23:00] Speaker 04:
Not yet.

[00:23:01] Speaker 04:
Why isn't there?

[00:23:02] Speaker 03:
Because as the record shows in this case, the car process, the raising non-compliance is a step in the business.

[00:23:09] Speaker 03:
It's something they do all the time.

[00:23:11] Speaker 03:
This is a very common practice.

[00:23:13] Speaker 03:
And so the issue here goes to notice as well, which Mooney says, the employer has to be aware of the efforts to stop an FCA violation.

[00:23:24] Speaker 03:
Not merely the raising of an issue, an effort to stop what would be an FCA violation.

[00:23:29] Speaker 03:
So in the regular course of business, raising issues that you don't think that something is compliant with an industry standard is not the same as alleging there is fraud,

[00:23:39] Speaker 03:
or putting the employer on notice that I'm attempting to stop fraud.

[00:23:44] Speaker 01:
So are you saying that right now, and I'm not disagreeing with that, but that there's nothing in the record that details in any way the steps between the alleged regulatory compliance problem that Ms.

[00:24:02] Speaker 01:
Arcee was talking about in her declaration and her deposition testimony?

[00:24:07] Speaker 01:
how many steps removed that would be, especially given that there's an intermediary company involved, between that and payment by the government or the submission of something that is a false claim to the government.

[00:24:25] Speaker 03:
That's correct, Your Honor.

[00:24:26] Speaker 03:
And what Ms.

[00:24:26] Speaker 03:
Arcee's counsel will point back to

[00:24:29] Speaker 03:
is her declaration making vague statements about the fact that ultimately we must certify the software such that Boeing will pay us on the contract.

[00:24:39] Speaker 03:
But the district court was not required to comb through the record to find that declaration and pick out that paragraph when it was not cited.

[00:24:46] Speaker 04:
I mean, that's a very technical argument.

[00:24:49] Speaker 04:
Suppose whether he was required or not

[00:24:54] Speaker 04:
It is in the record and we're looking at it.

[00:24:56] Speaker 04:
So let's assume we're looking at it.

[00:24:58] Speaker 04:
Then what?

[00:24:59] Speaker 03:
Then her statement makes a very broad allegation that at some point that Honeywell has to certify its products and to Judge Bennett's point that Boeing must accept those certifications and then Boeing must decide to present itself to the government for payment.

[00:25:18] Speaker 01:
So I take it you have at least two points on this.

[00:25:24] Speaker 01:
putting aside subjective, that that doesn't meet the objective, even in the light most favorable to Ms.

[00:25:32] Speaker 01:
Arcee, that doesn't meet her objective component, but also for retaliation, even looking at the evidence in the light most favorable to her, that that doesn't mean that that's the way the employer would have perceived it.

[00:25:45] Speaker 03:
Exactly, Your Honor.

[00:25:47] Speaker 03:
And I would also raise to the court, there are two remaining elements that... Is there actually any question that this is true?

[00:25:54] Speaker 04:
I mean, that's true that if they improperly certify something and then get paid for it, is there any doubt that they have to certify, they have to tell the government that there were proper certifications?

[00:26:11] Speaker 04:
Do we know that?

[00:26:13] Speaker 03:
What we know is that at some point Honeywell must certify to Boeing that it's delivered on its contract.

[00:26:19] Speaker 03:
There's nothing in this record about step two.

[00:26:21] Speaker 04:
And the contract includes compliance with regulations.

[00:26:24] Speaker 03:
Right.

[00:26:25] Speaker 04:
And she says that there wasn't compliance with the regulations.

[00:26:28] Speaker 03:
What she says is during the process by which she raises noncompliance, she argued repeatedly that a certain software was not compliant with industry standards.

[00:26:39] Speaker 03:
Okay.

[00:26:39] Speaker 03:
That's part of the normal process for the car process, yes.

[00:26:42] Speaker 03:
And putting aside whether she can meet the first two elements of her claim, whether she can establish protected activity and notice, Honeywell would also argue that she fails to establish causation.

[00:26:55] Speaker 03:
As Ms.

[00:26:56] Speaker 03:
Cowan presented to the court, Ms.

[00:26:59] Speaker 03:
R.C.

[00:27:00] Speaker 03:
had raised the issue, the very same issue, this regeneration of source code for the P-8 MMI over a period of four years beginning in 2017.

[00:27:11] Speaker 03:
The cards presented by Honeywell in the record show they go back even further to 2015.

[00:27:17] Speaker 03:
She was terminated nearly two years after her last alleged protected activity, and she was terminated after not returning to work after an 18-month leave of absence.

[00:27:30] Speaker 03:
There's no evidence in the record to dispute the testimony of Honeywell's witness that she was terminated

[00:27:36] Speaker 03:
solely based on the leave of absence policy.

[00:27:39] Speaker 00:
Well, what about the termination summary that was prepared allegedly two years earlier which wasn't disclosed?

[00:27:47] Speaker 00:
What does a termination summary mean?

[00:27:50] Speaker 03:
A termination summary is a document used to recommend termination that goes through the legal process.

[00:27:57] Speaker 03:
It's a privileged document that was disclosed to Ms.

[00:28:00] Speaker 03:
Arcee during the discovery period in this case.

[00:28:03] Speaker 03:
The testimony on the record that's undisputed is that termination decision was only, that the termination summary was only a recommendation and there was no termination decision made at the time of that recommendation.

[00:28:17] Speaker 03:
That's at the record at page 804.

[00:28:19] Speaker 00:
But that was much closer to the time when she was allegedly making these complaints, correct?

[00:28:24] Speaker 03:
It was and it related to the performance improvement plan but the undisputed record evidence is there was nothing done with that

[00:28:33] Speaker 03:
termination summary, and that nearly two years later when Ms.

[00:28:40] Speaker 03:
R.C.

[00:28:40] Speaker 03:
failed to return from a leave of absence, she was terminated consistent with a written policy.

[00:28:46] Speaker 03:
That's in the record.

[00:28:47] Speaker 01:
Didn't she claim she did try to return but nobody returned her calls or something like that?

[00:28:52] Speaker 03:
She claims that, but there's no evidence in the record to support that she stated her ability and interest in returning to work.

[00:28:59] Speaker 03:
What is in the record is that following her leave of absence,

[00:29:03] Speaker 03:
She communicated through two separate counsel and that she did not have knowledge of what they shared with Honeywell about her ability to return.

[00:29:13] Speaker 03:
And she testified she, let me get the record sites for you, that she did not provide Honeywell with a release to return to work and she had no evidence that she had been released to return to work by her physician.

[00:29:30] Speaker 03:
So we believe that

[00:29:32] Speaker 03:
that the plaintiff cannot meet her burden under the McDonnell Douglas burden shifting standard to dispute Honeywell's proffered reasons for her termination.

[00:29:43] Speaker 04:
And for these reasons... And if we decided that, we wouldn't have to decide any of the rest of it.

[00:29:48] Speaker 04:
Correct.

[00:29:49] Speaker 03:
On any of those elements, on causation or on pretext.

[00:29:56] Speaker 03:
I believe I'm about out of time.

[00:29:58] Speaker 03:
Are there any other questions?

[00:30:00] Speaker 01:
No, thank you.

[00:30:02] Speaker 01:
We'll give you two minutes, counsel.

[00:30:09] Speaker 02:
I'd like to make three points.

[00:30:11] Speaker 04:
What about the causation issue?

[00:30:13] Speaker 02:
Yes, Your Honor.

[00:30:14] Speaker 02:
With respect to the causation issue, number one, the evidence in the record on page 805 is that the termination summary was presented

[00:30:26] Speaker 02:
or was created, excuse me, in late June or early July of 2019 in preparation for the end of the PIP process.

[00:30:34] Speaker 02:
In February of 2018, before Ms.

[00:30:37] Speaker 02:
R.C.

[00:30:38] Speaker 02:
engaged in any protected activity, she was actually recommended to be terminated based on her last performance review at Honeywell, and that's in the record at page 691.

[00:30:50] Speaker 04:
With respect to causation... Before she engaged in any protected activity?

[00:30:53] Speaker 02:
I'm sorry?

[00:30:53] Speaker 02:
Before she engaged in any protected activity?

[00:30:56] Speaker 02:
Yes, Your Honor.

[00:30:57] Speaker 02:
The protected activity in this case is not just the submission of cars.

[00:31:01] Speaker 04:
The protected activity in this case is initially... Well, she was recommended to be terminated before any protected activity.

[00:31:09] Speaker 04:
Doesn't that prove that it was in possession?

[00:31:10] Speaker 02:
No, no.

[00:31:11] Speaker 02:
I'm sorry, Your Honor.

[00:31:11] Speaker 02:
She was recommended to be promoted before any protected activity.

[00:31:15] Speaker 02:
Thank you.

[00:31:16] Speaker 02:
With respect to the protected activity in this case, that is the submission of cars

[00:31:21] Speaker 02:
which there was the submission of cars, and then there was much more beyond that.

[00:31:26] Speaker 02:
This wasn't just the normal course of business.

[00:31:29] Speaker 02:
We have her April

[00:31:30] Speaker 02:
April 16th, 2019 email where she's being told to sign off on something even though she hasn't reviewed it.

[00:31:36] Speaker 02:
And that quote, we will stay on the phone until you do.

[00:31:39] Speaker 02:
There's the April 19th, 2019 notice of concern sent to her manager and human resources saying she feels she's being retaliated against and specifically tying the retaliation to refusing to certify something that they are contractually required to provide.

[00:31:55] Speaker 02:
There's the May 2019 notice of grievance again to her supervisor in HR.

[00:32:00] Speaker 02:
There's the July 1 letter from her attorney.

[00:32:03] Speaker 02:
Those are not the normal course of business.

[00:32:05] Speaker 02:
She went above and beyond.

[00:32:07] Speaker 02:
And so for that reason, we request that the summary judgment be reversed.

[00:32:13] Speaker 01:
We thank counsel for their arguments.

[00:32:15] Speaker 01:
The case just argued is submitted.

[00:32:17] Speaker 01:
And with that, we are adjourned for the day.