[00:00:01] Speaker 03: Thank you, Your Honors. [00:00:02] Speaker 03: May it please the court, Corey Ford, on behalf of appellant Tom Cook. [00:00:05] Speaker 03: I'd like to reserve three minutes for rebuttal. [00:00:08] Speaker 03: Your Honors, this is a textbook Title VII retaliation case where the district court failed to apply the proper McDonnell Douglas burden shifting framework and then failed to consider the minimum burden that is required to show a causal link and pretext at summary judgment. [00:00:26] Speaker 03: At its core, when the appropriate burden shifting framework is applied, [00:00:30] Speaker 03: there's really two issues here on appeal. [00:00:32] Speaker 03: The first issue is whether the district court appropriately found that timing alone was Cook's only argument and not enough to infer a causal link. [00:00:42] Speaker 03: The second main issue is whether the district court appropriately found [00:00:46] Speaker 03: that there was an independent basis to terminate Cook to ignore any burden-shifting analysis under McDonnell Douglas. [00:00:53] Speaker 03: Starting with the timing aspect on the first issue, this Court has routinely held that close proximity and timing alone may support an inference of retaliation sufficient to survive summary judgment. [00:01:07] Speaker 03: It has even went as far as saying close proximity and timing is strong evidence of retaliated motive. [00:01:14] Speaker 03: Your Honor, in this case, [00:01:17] Speaker 03: The termination occurred 23 days after Mr. Cook reported, and eight days after he was unexpectedly interrogated by the two senior HR representatives for a unit named Colonial Life. [00:01:31] Speaker 03: The district court simply ignored this timing evidence despite the abundance of cases that it was provided where this court has inferred such a causal link could be established. [00:01:42] Speaker 03: I mean, this court has even went as far as saying [00:01:45] Speaker 03: in a 3 to 8-month range that's easily within the range to establish such causation. [00:01:51] Speaker 02: Mr. Ford, you're not, I mean, as I understand it, you weren't relying on timing alone. [00:01:57] Speaker 02: And so I guess my first question is, did the district court misconstrue the arguments and the other evidence in the record to support at least triable disputes about the reasons for the firing? [00:02:08] Speaker 03: I think that was going to be the next point I make is we weren't just making a timing argument. [00:02:13] Speaker 03: Obviously, that's relevant here, but we also had other evidence that suggested there was, you know, but for cause here. [00:02:21] Speaker 03: So what other evidence would you point to, for example? [00:02:26] Speaker 03: Okay, so for evidence I would point to is when you made the report, [00:02:31] Speaker 03: before that, the alleged incidents where he was terminated, there's two incidents, right? [00:02:39] Speaker 03: And then there's a few other things. [00:02:41] Speaker 03: They allege something happened four and six months prior before he reported. [00:02:45] Speaker 03: both of those incidents I would argue are in dispute. [00:02:50] Speaker 03: But in terms of the reporting and a but for cause, after he reported it is when they basically lumped him into this investigation and to the boss, Webb, who was engaging in this conduct. [00:03:08] Speaker 03: Prior to that, no one had ever reported any behavior, any alleged inappropriate behavior from him. [00:03:15] Speaker 03: despite it being company policy to do so. [00:03:18] Speaker 03: No one in HR or the uppers were aware of this behavior. [00:03:24] Speaker 04: Well, he hadn't reported Webb, right? [00:03:27] Speaker 04: Right. [00:03:27] Speaker 04: Even though it was company policy to do so. [00:03:30] Speaker 04: Well, he did report Webb. [00:03:31] Speaker 04: Eventually, but not when he first knew, right? [00:03:34] Speaker 03: I think he reported him once he saw actual physical and egregious behavior. [00:03:40] Speaker 03: There was the time before at the thing where he saw them passing notes between each other. [00:03:48] Speaker 03: you know, she's going to handle it and take care of it. [00:03:51] Speaker 03: And then as the Dallas trip rolled around, he personally witnessed Webb be completely out of line, touch her, grab her face, call her sweetie, things of those natures. [00:04:03] Speaker 03: So that conduct was completely out of line. [00:04:06] Speaker 04: what he witnessed. [00:04:08] Speaker 04: So here's my question. [00:04:12] Speaker 04: I tend to agree with you that the district court should have gotten past the prima facie case and then should have reviewed the argument that even if there was a prima facie case under the McDonnell Douglas burden shifting that the employer had presented sufficient evidence [00:04:33] Speaker 04: of non-protectual reasons for termination. [00:04:40] Speaker 04: And with my looking at the evidence and the descriptions of what witnesses reported that your client did, [00:04:50] Speaker 04: It strikes me that that conduct, even if disputed by your client, is conduct that a reasonable employer would terminate somebody based on. [00:05:03] Speaker 04: I'm not going to go through the details of it here in open court. [00:05:07] Speaker 04: But the fact that your client has some disputes about [00:05:12] Speaker 04: the details or what exactly happened doesn't mean that the employer didn't believe it or doesn't create a tribal issue of fact as to the employer not believing it. [00:05:23] Speaker 04: So tell me why this evidence that the employer relied on is pretextual in your view, why there's a tribal issue of fact as to pretext. [00:05:38] Speaker 03: I'm sorry. [00:05:39] Speaker 03: I'm sorry. [00:05:40] Speaker 03: I'm sorry. [00:05:41] Speaker 03: I'm sorry. [00:05:42] Speaker 03: I'm sorry. [00:05:44] Speaker 03: I'm sorry. [00:05:45] Speaker 03: I'm sorry. [00:05:47] Speaker 03: I'm sorry. [00:05:48] Speaker 03: I'm sorry. [00:05:49] Speaker 03: I'm sorry. [00:05:50] Speaker 03: I'm sorry. [00:05:52] Speaker 03: I'm sorry. [00:05:53] Speaker 03: I'm sorry. [00:05:54] Speaker 03: the call logs on the call logs on the call logs on the call logs on the call logs on the call logs on the call is a confiscated their phones. [00:05:57] Speaker 03: Now we went back and look at the call logs in the showing walls phone. [00:05:59] Speaker 03: It's undisputed that the the witness who was alleging inappropriate face time gestures in the 2 times he alleged it. [00:06:06] Speaker 03: Those times don't show up on the call logs. [00:06:09] Speaker 03: So that it's undisputed that if you look at miss showing was following view view the facts in favor of Mister Cook that that that didn't even [00:06:22] Speaker 03: I mean, Ms. [00:06:24] Speaker 03: Harley was the one leading this investigation. [00:06:26] Speaker 03: She didn't have the ability to terminate. [00:06:28] Speaker 03: It seems like she authored the termination letter for Mike Keller, who didn't sign review or know anything really about it. [00:06:36] Speaker 03: She ultimately was the one who was supposed to look into these investigations and make sure they were confirmed and had supporting witnesses. [00:06:43] Speaker 03: I mean, she had documentary evidence with the FaceTime gestures. [00:06:48] Speaker 04: I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean [00:07:14] Speaker 04: I think that's the second prong in the burden-shifting framework. [00:07:30] Speaker 03: I think Harley, she honestly believed that those reasons were legitimate. [00:07:35] Speaker 03: But then when you start looking at things and looking at some of the evidence, you know, what these were. [00:07:41] Speaker 02: I found it notable that part of the record shows an allegation that Webb threatened, is it Koch? [00:07:50] Speaker 02: Yeah, Cook. [00:07:51] Speaker 02: Cook. [00:07:51] Speaker 02: Yeah. [00:07:52] Speaker 02: Saying, you know, in response to if she reported to HR, [00:07:58] Speaker 02: I'll make her life a living hell. [00:08:00] Speaker 02: My guys will say anything I need them to say. [00:08:02] Speaker 02: I'll throw my weight around, and this will never go anywhere. [00:08:06] Speaker 02: And if you support her, then you're against me. [00:08:08] Speaker 02: Basically, I'm doing the same thing to you. [00:08:09] Speaker 02: Doesn't that at least raise an inference that there may have been people the employer did know about these things and was retaliating? [00:08:19] Speaker 02: At least to me, it raises a tribal dispute as to the motivation of the employer for firing someone in less than a month. [00:08:28] Speaker 03: And Sean Holtorf, the guy who reported FaceTime, was one of Webb's guys, essentially. [00:08:34] Speaker 03: So he was hired by Webb and obviously made these comments about the FaceTime gestures. [00:08:41] Speaker 03: If you look at the inappropriate dancing... Can I ask about the FaceTime gestures? [00:08:46] Speaker 02: Because that was confusing to me. [00:08:48] Speaker 02: As I understand it, the other employee that was reporting it said that it was Heather Schoenfeld that was making these inappropriate gestures over FaceTime to your client. [00:09:00] Speaker 02: Why would he be fired for nepotism over actions that she was taking over FaceTime? [00:09:07] Speaker 03: that's a question I have too. [00:09:10] Speaker 03: You know, it's shocking that they said he was playing favoritism to her, but then also saying that there was some harassing behavior towards her as well. [00:09:17] Speaker 03: I just don't see how the two correlate. [00:09:20] Speaker 03: And then also to the nepotism thing, he was never at any point her direct supervisor. [00:09:26] Speaker 03: which if you look at the policy, that's something. [00:09:28] Speaker 02: It sounds like that's disputed because I think he alleged there seems to be some inconsistency there because I think in the complaint, he says that he was a supervisor, but then in a deposition, he said that he wasn't. [00:09:38] Speaker 02: So it's unclear whether he was or was not, isn't it? [00:09:42] Speaker 03: I think it's disputed. [00:09:44] Speaker 03: Our complaint may have referenced that, but I think what came out in the case is that at no point he was [00:09:52] Speaker 04: had a supervisory role over her. [00:09:55] Speaker 04: I'm looking at ER 102, Ms. [00:09:57] Speaker 04: Harley's deposition. [00:10:00] Speaker 04: In your investigation, was Sean the only person who made claims that [00:10:04] Speaker 04: Mr. Koch and Ms. [00:10:05] Speaker 04: Schoenwalde allegedly made sexual gestures over FaceTime. [00:10:09] Speaker 04: No, Tom admitted to it. [00:10:11] Speaker 04: Question, Tom admitted to it? [00:10:12] Speaker 04: Yes. [00:10:13] Speaker 04: What did he admit to? [00:10:14] Speaker 04: He admitted that he does FaceTime and that that did occur, the gestures and the blanking off gestures. [00:10:23] Speaker 04: He admitted that to Matthew McWilliams. [00:10:26] Speaker 04: Did Mr. McWilliams tell you that? [00:10:28] Speaker 04: Yes. [00:10:29] Speaker 04: That's pretext. [00:10:32] Speaker 03: question. [00:10:33] Speaker 03: Thank you. [00:10:37] Speaker 03: Well, I [00:10:39] Speaker 03: that's not happening. [00:10:43] Speaker 03: He said that he never engaged that he did engage in FaceTime gestures. [00:10:47] Speaker 03: He just never engaged in any appropriate FaceTime gestures with her. [00:10:50] Speaker 03: And then what we look at Mister McWilliams testimony and also his notes, there's nothing to suggest that Tom Cook in his notes admitted to him of that and he doesn't recall as much on his testimony. [00:11:02] Speaker 03: So basically what we have is is Harley as [00:11:06] Speaker 03: you know, basically the lead horse in this whole thing. [00:11:09] Speaker 03: And it's basically her words versus everyone else's words. [00:11:12] Speaker 03: And that's the reason, you know, she stamped the termination essentially. [00:11:17] Speaker 04: Well, it's also in Sean's, I guess their notes at SER 164, right? [00:11:27] Speaker 04: reflecting this where it says words I'm not going to use, but she was FaceTiming doing sexual gestures with him, gestures pretending to be blanking off various other things, giving various things. [00:11:47] Speaker 04: So this is another person reporting this, right? [00:11:51] Speaker 03: I would say those were probably questions he lined up to ask him. [00:11:55] Speaker 03: But I don't see anything where it's saying he confirmed that that happened and he admitted to that. [00:12:01] Speaker 02: I mean, but Sean was the other employee that reported the FaceTime. [00:12:06] Speaker 02: As I understand it, there was no one else that observed this, right? [00:12:11] Speaker 02: It was him. [00:12:12] Speaker 03: No, there was no one else that observed it despite other people being present at these events that people were at and could visibly see Tom Cook. [00:12:20] Speaker 03: I mean, it wasn't like it was just Sean and Tom at these events. [00:12:24] Speaker 03: I mean, one was at a basketball game and the only person who saw it was Sean. [00:12:34] Speaker 02: If, let me ask this, it wasn't clear to me if the district court, and I think this is your argument, ever got past the prima facie stage. [00:12:44] Speaker 02: So if there's error at that stage at the first step of the McDonnell Douglas framework, [00:12:50] Speaker 02: Are we even able to presume that had it gone on to other steps that the employer did give a, I mean, would we even go back, go further into the McDonnell Douglas framework or would we send it back for the court to just reanalyze, you know, getting past prima facie and then asking the, actually shifting the burden to the employer to give a non, you know, a neutral reason and then developing evidence about pretext. [00:13:19] Speaker 03: And then have the court essentially look at pretext? [00:13:22] Speaker 02: In the first instance, because it doesn't seem to me that the district court actually did the analysis of a neutral reason and whether that was pretextual or not, because it stopped at the prima facie stage. [00:13:32] Speaker 03: Yeah, no. [00:13:32] Speaker 03: I think what they did is they just said there was an independent basis to determine. [00:13:36] Speaker 03: I don't think they engaged in any of the appropriate phase. [00:13:38] Speaker 04: I agree with you. [00:13:39] Speaker 04: But all the evidence is in the record, whatever it shows. [00:13:45] Speaker 04: And we do a de novo review of summary judgment, right? [00:13:48] Speaker 04: Yeah. [00:13:49] Speaker 04: All right, did you want to reserve? [00:13:51] Speaker 04: Yeah, I'll reserve the rest of the time. [00:13:52] Speaker 04: We asked a lot of questions. [00:13:52] Speaker 04: We'll give you some additional time for rebuttal. [00:13:55] Speaker 03: Sounds good. [00:13:55] Speaker 03: Thank you, Your Honors. [00:14:12] Speaker 01: May it please the court? [00:14:14] Speaker 01: Appellant Tom Koch expected Apolize to turn a blind eye to his inappropriate workplace behavior simply because he reported sexual harassment complaints on behalf of a subordinate. [00:14:26] Speaker 01: However, Title VII doesn't require employers like Apolize to simply ignore wrongdoing because someone engages in protected activity. [00:14:35] Speaker 00: What do we make of the fact that this alleged wrongdoing never came up? [00:14:39] Speaker 00: until the investigation into Webb commenced. [00:14:44] Speaker 00: What do we make of that fact that apparently this had been seen several months before, but no one said anything? [00:14:51] Speaker 01: Your Honor, what matters is under Title VII that employers are required to investigate as soon as they hear reports of any wrongdoing in the workplace. [00:15:01] Speaker 01: And so once that came to light, that is what occurred in this case. [00:15:04] Speaker 01: But that does not establish [00:15:06] Speaker 01: but for causation. [00:15:07] Speaker 01: Your honor, there was no evidence that because he reported the retaliation is what led, I'm sorry, that he reported the harassment is what led to his termination. [00:15:18] Speaker 01: He fails to make note that the intervening notice when they received those reports is what prompted the investigation. [00:15:26] Speaker 01: And it was after Harley conducted her investigation that she determined that there was violations of the company policy. [00:15:35] Speaker 02: you know, because we're at the summary judgment stage and we have to give credence to the nonmoving party. [00:15:41] Speaker 02: It's not about necessarily to me about the beginning of the investigation, but its scope. [00:15:47] Speaker 02: And when you combine that with the alleged web threat that, you know, if someone reports to HR, I'm going to go after Heather and I'm going to go after you. [00:15:57] Speaker 02: I'm going to have my guys say what they need to say. [00:15:59] Speaker 02: And then when the investigation begins, [00:16:02] Speaker 02: suddenly it takes on this added scope of activities related to the people that were behind the allegations themselves. [00:16:12] Speaker 02: And you combine that with the firing in less than a month. [00:16:17] Speaker 02: And it just seems to me that there's enough there that these would be triable disputes. [00:16:22] Speaker 02: It may be that the employer rightfully fired for inappropriate conduct, but it could also be at least at a prima facie level, [00:16:30] Speaker 02: that there was a retaliatory motive. [00:16:32] Speaker 02: Why should this have stopped at the summary judgment stage? [00:16:36] Speaker 01: Well, Your Honor, to begin with, I do think the district court did evaluate the prima facie case and determined that causation wasn't established. [00:16:45] Speaker 01: You know, on appeal, this court is just to determine whether there's any basis for affirmance. [00:16:51] Speaker 01: And here there is a basis because a prima facie case wasn't established. [00:16:55] Speaker 01: you need to look at the surrounding circumstances. [00:17:03] Speaker 01: But if we're looking at that here in terms of [00:17:20] Speaker 04: there were allegations of threats being made, and the person who made the allegations was quickly terminated. [00:17:30] Speaker 04: I mean, to me, under our case law, there was a prima facie case here, and the district court, respectfully, just on de novo review, got that wrong. [00:17:42] Speaker 04: So, I mean, I don't see the [00:17:46] Speaker 04: the no prima facie case as being your strongest argument here. [00:17:52] Speaker 01: Yes, Your Honor. [00:17:52] Speaker 01: I'd just like to state and to respond to that is that there was a case, the Fried versus Wynn Las Vegas Ninth Circuit case from 2021 that found that 15 days between the protected activity and the adverse employment action wasn't sufficient to establish causation of the prima facie case. [00:18:10] Speaker 01: I think that's a good point. [00:18:11] Speaker 01: I think that's a good point. [00:18:12] Speaker 01: And courts have held that there's no bright line rule of what establishes temporal proximity to establish the prima facie case. [00:18:23] Speaker 01: But your honors, even if a [00:18:26] Speaker 01: Epolis provided a legitimate non-retaliatory reason for his termination, which was his violation of the workplace policies. [00:18:35] Speaker 01: And the burden for employers is one of projection, not persuasion. [00:18:39] Speaker 01: And so we've met that burden and the district court found- What about the web threat? [00:18:43] Speaker 02: Can you talk about that? [00:18:45] Speaker 02: Why doesn't that raise a tribal dispute as to the motive for the firing? [00:18:51] Speaker 01: I think that's a way to look at the evidence but why does that not raise a tribal dispute? [00:19:17] Speaker 02: an alternative might be that he did actually have some sway in the scope of the investigation, and while he was let go, it happened to impact, you know, Mr. Koch as well. [00:19:29] Speaker 01: I would argue that that is just speculative and conjecture because there was no evidence that he actually did have any sway. [00:19:38] Speaker 01: Harley conducted an investigation of the allegations with respect to the karaoke incident. [00:19:45] Speaker 01: It wasn't just based on her review of the video. [00:19:47] Speaker 01: Misty herself is the employee that provided that video. [00:19:51] Speaker 01: She reported that there was conduct going on between appellant and coach. [00:19:56] Speaker 01: She also testified during that same [00:19:58] Speaker 01: karaoke event that she had witnessed a pellet dedicate an inappropriate song to an inappropriate object. [00:20:08] Speaker 01: So Harley investigated that and received third-party evidence that that had occurred. [00:20:14] Speaker 02: But when Mr. Webb was interviewed by HR, he said that it was a different person that was dancing with Heather at that karaoke place, that it was a person named Richard. [00:20:27] Speaker 02: I guess it leads me to think that there are just these tribal issues that a trial would have to sort out. [00:20:34] Speaker 02: Coke is saying he didn't do that dancing. [00:20:37] Speaker 02: Webb is saying it was someone else. [00:20:40] Speaker 02: This other interviewee and the person who brought the video saw that it was him, and then the video apparently is corrupted and can't be seen anymore. [00:20:49] Speaker 02: Isn't there a lot of just swirling factual disputes in this case? [00:20:53] Speaker 01: Your Honor, I would argue that any factual disputes are not material and do not impact the summary judgment decision. [00:20:59] Speaker 01: As Your Honor noted too, what matters is the honest belief that the employers believed when they made that decision to terminate appellant. [00:21:07] Speaker 01: And at that time when Harley conducted her investigation, she had no basis to question [00:21:13] Speaker 01: Sean's testimony, Misty's testimony, or her own review of the video. [00:21:19] Speaker 01: And also with respect to the FaceTime gestures, McWilliams interviewed Appellant and during that interview, Appellant admitted that he had engaged in those inappropriate conducts and that's what McWilliams related back to Harley when she was. [00:21:34] Speaker 02: But Mr. Cook disputes that. [00:21:35] Speaker 02: He says that he admitted to having FaceTime calls with Heather, not that he admitted to inappropriate gestures. [00:21:44] Speaker 02: And then when McWilliams was deposed, he couldn't remember the interview itself in his own deposition. [00:21:52] Speaker 02: All that's to say, there seems to be multiple sides to this story. [00:21:57] Speaker 02: I don't know which one's the right one, but it's hard for me to see how this is not an issue that's for trial, even if the court had gotten past the prima facie stage. [00:22:09] Speaker 01: your honor in bill of our mill versus aloha Island air ink, which is a 9 circuit case from 2002. [00:22:17] Speaker 01: In that case, they said that you have to put forward specific and substantial evidence and you can't rely on speculation and conjecture and it's not enough. [00:22:28] Speaker 02: Why is it speculation? [00:22:30] Speaker 02: You have web who was a supervisor over Coke saying, [00:22:34] Speaker 02: I will retaliate against you if you or Heather report to HR and then the interview happens and then the scope of the investigation expands and a person's fired within three weeks. [00:22:49] Speaker 02: Those are concrete details. [00:22:51] Speaker 02: It doesn't seem speculative to me and there are disputes about what happened in this process. [00:22:58] Speaker 02: Can I ask you about the nepotism policy? [00:23:01] Speaker 02: The termination letter seemed to suggest that nepotism is about just personal relationships, but the policy itself talks about family or romantic relationships. [00:23:12] Speaker 02: Did the company believe that Mr. Koch was in a romantic relationship with Heather Schoenfeld? [00:23:20] Speaker 01: your honor. [00:23:21] Speaker 01: First, I would say that the policy is not limited to family or romantic relationships. [00:23:26] Speaker 01: Harley testified to that. [00:23:27] Speaker 01: That's on page 92 of the record. [00:23:30] Speaker 01: And also close personal relationships are evaluated on a case by case basis. [00:23:36] Speaker 01: But the reason that he was terminated was the perception of [00:23:40] Speaker 01: favoritism, which needs to be interpreted broadly, I would say the policy itself. [00:23:46] Speaker 02: I'm sorry to interrupt, but I'm looking at ER 185 at the nepotism and personal relationships at work policy, and it says, close personal relationships in the workplace, whether with family members or romantic relationships, can unintentionally create situations involving conflicts of interest, interference with control, and other things. [00:24:06] Speaker 02: And then further down below, for anyone with management responsibility, [00:24:10] Speaker 02: No family member or person in a romantic relationship may be hired or employed or within the manager's span of control or in a role that is influenced by the manager. [00:24:23] Speaker 02: At least that seems to suggest to me that it might be limited in this way and unless there's evidence that there was a romantic relationship between the two, he may have been fired for retaliatory reasons. [00:24:35] Speaker 01: Your honor, if you look further down at that same policy, it should be on page 182 and 184 as well. [00:24:42] Speaker 01: It says that to avoid a conflict of interest or appearance of a conflict of interest, the definitions of relationships covered in this policy should be interpreted very broadly. [00:24:52] Speaker 02: But look at the heading right above it. [00:24:54] Speaker 02: Definitions of relationships, parentheses, family members and romantic relationships. [00:25:01] Speaker 01: Yes, Your Honor. [00:25:02] Speaker 01: But underneath that heading, it then states that the definitions should be interpreted broadly. [00:25:07] Speaker 01: And during Harley's investigation, she said that the policy is not limited to family or romantic relationships. [00:25:14] Speaker 01: And McWilliams himself during his deposition also said that the definitions are interpreted broadly. [00:25:21] Speaker 01: And that was on page 124 of the record. [00:25:24] Speaker 01: And so the policy is not just limited to romantic relationships. [00:25:29] Speaker 02: or... I guess I would look at the company's policy in its written form before two employees interpretations of the policy, but all that's to say, and I'm not necessarily saying that the company wouldn't construe this in a broad way and may not have had legitimate reasons to fire these individuals, but it just seems premature to me to decide these things at the summary judgment stage when there are many different ways of arguing [00:25:58] Speaker 02: the applications of these policies, what happened and the motivations behind them. [00:26:04] Speaker 01: Your Honor, with respect to consistent application of the policies, FLEs have consistently applied these policies. [00:26:11] Speaker 01: They've terminated former managers that were alleged to have engaged in inappropriate conduct under these same policies. [00:26:19] Speaker 01: That was Scott himself. [00:26:20] Speaker 01: That was also Tim Martin and also Andre Laflame were terminated. [00:26:26] Speaker 01: They were in a supervisory role and alleged to have engaged in inappropriate conduct and they were terminated. [00:26:32] Speaker 01: Similarly, here, appellant, once appellees learned that he had engaged in inappropriate conduct, which was sparked through reports of other individuals. [00:26:42] Speaker 01: It wasn't going, Your Honor, to your comment about Scott Webb maybe influencing the investigation. [00:26:49] Speaker 01: It wasn't Scott Webb's comments. [00:26:51] Speaker 01: It was other individuals that were interviewed is what ultimately led Harley to determine that they needed to further investigate. [00:26:58] Speaker 04: But also on that point, [00:27:00] Speaker 04: The question is whether the decision maker believed the allegations and at the point that the company was considering whether to terminate Webb and the plaintiff, Webb was not a decision maker in that process, right? [00:27:18] Speaker 04: Correct, he was not. [00:27:19] Speaker 04: And there's no evidence that we have that in the investigation which encompassed both Webb and Koch that Webb was a decision maker, right? [00:27:29] Speaker 01: Correct, Your Honor. [00:27:30] Speaker 02: Was Harley a decision maker? [00:27:32] Speaker 02: Because I believe she made a recommendation, but she led the investigation, but she didn't decide it herself, did she? [00:27:38] Speaker 01: She was not the decision maker. [00:27:39] Speaker 01: She recommended. [00:27:40] Speaker 02: Who was? [00:27:41] Speaker 01: Mike Keller was a decision maker. [00:27:43] Speaker 01: He was the VP of sales at the time. [00:27:47] Speaker 02: Right. [00:27:47] Speaker 02: And as I understand your opposing counsel's brief, during his deposition, when I looked at his deposition transcript, he didn't know the basis. [00:27:56] Speaker 02: He could not recall the basis for the terminations. [00:28:00] Speaker 02: And I believe it was briefed that he [00:28:04] Speaker 02: believed that he would not fire anyone for not cooperating with an investigation. [00:28:10] Speaker 02: It wasn't clear that he knew the basis for the determination other than just accepting the recommendations from someone else. [00:28:19] Speaker 01: I think that's a good question. [00:28:20] Speaker 01: I think that's a good question. [00:28:21] Speaker 01: Your honor at the time he was to pose he did testify he didn't remember the specifics but that it's not specific and substantial evidence to establish pretext because at the time when Harley reported it and provided the basis to Keller. [00:28:35] Speaker 01: At that time, he agreed that termination was, he recommended that termination occur, which is what ultimately led to appellant's termination. [00:28:46] Speaker 01: Otherwise, he wouldn't have been terminated because he made the decision. [00:28:49] Speaker 01: So at that time, he honestly believed of what he heard, what Harley reported to him and recommended to him actually occurred, and that there were policy violations by appellant at that time. [00:29:04] Speaker 04: Thank you, counsel. [00:29:05] Speaker 01: Thank you. [00:29:07] Speaker 04: And we'll give you two minutes for rebuttal. [00:29:15] Speaker 03: Thank you, Your Honors. [00:29:18] Speaker 03: It seems like this retaliation ultimately boils down to letting a trier of fact decide whether this was a retaliated motive or whether this was a legitimate firing. [00:29:31] Speaker 03: Just to touch on a few things. [00:29:33] Speaker 03: that's a big no no to do that. [00:29:40] Speaker 03: And so they. [00:29:48] Speaker 03: that he was not a witness. [00:29:49] Speaker 03: He was not a witness. [00:29:50] Speaker 03: He was not independently fired in for that had nothing to do with his protected out activity that he reported. [00:29:54] Speaker 03: Also when you look at the case detail notes from Harley. [00:29:58] Speaker 03: She interviewed 13 witnesses. [00:29:59] Speaker 03: There's only 2 witnesses who came forward and none of the 2 witnesses. [00:30:04] Speaker 03: No one else cooperated. [00:30:06] Speaker 03: Their stories. [00:30:07] Speaker 03: Those were individual [00:30:15] Speaker 03: I'm not sure if that's true or not. [00:30:19] Speaker 03: I'm not sure if that's true or not. [00:30:22] Speaker 03: I'm not sure if that's confirmed Quite the opposite. [00:30:26] Speaker 03: It's true like your honor pointed in Webbs interview. [00:30:31] Speaker 03: He said that it was a Richard not Tom Cook. [00:30:33] Speaker 03: So the other thing I'd like to touch on [00:30:35] Speaker 03: And then to touch on the nepotism and sexual harassment, he didn't remember even firing anyone ever for nepotism or sexual harassment violations. [00:30:47] Speaker 03: So when you look at the decision-maker at the end of the day, he didn't remember even firing anyone ever for nepotism or sexual harassment violations. [00:30:57] Speaker 03: So when you look at the decision-maker at the end of the day, he didn't remember even firing anyone ever for nepotism. [00:31:01] Speaker 03: I mean, it falls back to, we have Harley leading this investigation. [00:31:07] Speaker 03: She lumps Mr. Cook in because she hears two things from two witnesses. [00:31:11] Speaker 03: There's 11 witnesses who say nothing else. [00:31:13] Speaker 03: And then ultimately, she finds that this behavior [00:31:20] Speaker 03: I think it's a good time. [00:31:20] Speaker 03: I think it's a good time to confirm which I think it's disputed. [00:31:22] Speaker 03: You know, we see the call logs that doesn't reflect that. [00:31:25] Speaker 03: We see. [00:31:26] Speaker 03: In the inappropriate dancing. [00:31:29] Speaker 03: We see text messages where everyone had a good time. [00:31:31] Speaker 03: No one reported it. [00:31:33] Speaker 03: And then. [00:31:34] Speaker 03: Also we see to conclude council. [00:31:39] Speaker 04: But that's all I have your honor. [00:31:41] Speaker 04: Thank you. [00:31:43] Speaker 04: All right. [00:31:45] Speaker 04: We thank