[00:00:07] Speaker 04:
We will next hear Blaine versus Mystere, living in health care, number 243121.

[00:00:17] Speaker 04:
Counsel, you may proceed.

[00:00:31] Speaker 01:
Thank you, Your Honor.

[00:00:33] Speaker 01:
May it please the Court.

[00:00:33] Speaker 01:
I'm going to try to reserve a little bit of time for rebuttal.

[00:00:36] Speaker 01:
I'll try to stop myself.

[00:00:37] Speaker 01:
So in granting the summary judgment, the district court failed to draw inferences in favor of the plaintiff and applied incorrect standards of law, including binding Supreme Court precedent in this matter to both plaintiffs' retaliation and discrimination claims.

[00:00:53] Speaker 03:
Well, where is the materially adverse employment action?

[00:00:57] Speaker 01:
Well, I think the materially adverse employment action isn't necessarily the standard that applies here.

[00:01:02] Speaker 01:
A materially adverse act is what applies in the retaliation context under White.

[00:01:08] Speaker 03:
And... Well, what... I mean, what did the plaintiff... I mean, she says that she had to leave earlier than she wanted to leave.

[00:01:17] Speaker 03:
After she had given her resignation, she was paid in full for the period of time involved.

[00:01:23] Speaker 03:
And there's not a suggestion that if she had wanted to stay around and kiss everybody goodbye, that she could have done that.

[00:01:31] Speaker 01:
I don't think there's anything in the record to state that she was allowed to stay there.

[00:01:34] Speaker 03:
They were told... Well, there's nothing to the contrary.

[00:01:36] Speaker 01:
Right.

[00:01:37] Speaker 01:
And I think that's a jury question.

[00:01:38] Speaker 01:
And drawing inferences in favor of the non-moving party, which we are, I think that other employees, including Darcy Schnoor, referred to Jennifer as terminated.

[00:01:49] Speaker 01:
Jennifer, which referred to as terminated.

[00:01:50] Speaker 03:
Well, are you denying that she did not resign?

[00:01:54] Speaker 01:
She expressed an intent to resign on November 9, 2021.

[00:01:56] Speaker 03:
Well, she said more than an intent.

[00:01:59] Speaker 03:
Yeah.

[00:01:59] Speaker 03:
She said, I'm resigning as of X. Right.

[00:02:02] Speaker 01:
And she expected to... That's not just an attempt.

[00:02:06] Speaker 01:
Well, an intent.

[00:02:07] Speaker 01:
And sorry to correct you there.

[00:02:08] Speaker 01:
But I believe that her intent was to resign on November 23, 2021.

[00:02:13] Speaker 03:
She didn't get to... No, her intent was to resign on that date and get two weeks of termination pay.

[00:02:21] Speaker 01:
Well, she was expecting to continue working.

[00:02:24] Speaker 01:
She wasn't expecting to get termination pay for those two weeks.

[00:02:28] Speaker 01:
From her deposition testimony, she wanted to say goodbye to her co-workers.

[00:02:32] Speaker 01:
She wanted to say goodbye to her residents.

[00:02:33] Speaker 01:
She had been there for seven years.

[00:02:35] Speaker 01:
She loved her job.

[00:02:36] Speaker 01:
She didn't want to leave.

[00:02:37] Speaker 01:
Unfortunately, the circumstances of her complaints, the harassment, is what led her to leave.

[00:02:45] Speaker 04:
You've abandoned any constructive discharge, correct?

[00:02:49] Speaker 04:
Correct.

[00:02:50] Speaker 04:
So what happened here is effectively paid leave.

[00:02:56] Speaker 01:
I think that's one characterization of it.

[00:02:59] Speaker 01:
And I think that's an inference that can be drawn in the moving party, which I think is the incorrect inference to draw.

[00:03:04] Speaker 01:
In White, even, there was a suspension with pay that the Supreme Court found was sufficient to support a retaliation claim.

[00:03:13] Speaker 01:
And here, I mean, you could effectively argue it's the same thing.

[00:03:16] Speaker 04:
How is there a suspension?

[00:03:18] Speaker 04:
There's not a suspension, but there is a... Well, but you said in white it was a suspension.

[00:03:22] Speaker 04:
Is there a suspension here?

[00:03:23] Speaker 01:
There is a period where Jennifer was not working but was being paid otherwise, and so... And why isn't that paid leave?

[00:03:30] Speaker 01:
Again, I think that's a characterization for sure.

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

[00:03:32] Speaker 04:
Why isn't it an accurate characterization?

[00:03:35] Speaker 01:
Well, I think it's not an accurate characterization because usually paid leave is something that... Sometimes there's an inference that

[00:03:43] Speaker 01:
It's requested.

[00:03:44] Speaker 01:
Sometimes there's an inference that it's a... But what if someone's put on administrative leave?

[00:03:50] Speaker 01:
Yeah, certainly if an employer decides to put someone on administrative leave.

[00:03:53] Speaker 04:
All right.

[00:03:54] Speaker 04:
And when is that an adverse action?

[00:03:56] Speaker 01:
When it's tied to protected activity.

[00:03:59] Speaker 04:
When it's tied to... What's your authority for that?

[00:04:04] Speaker 01:
What would be my authority?

[00:04:05] Speaker 01:
Yeah.

[00:04:07] Speaker 01:
White would be certainly authority there.

[00:04:10] Speaker 01:
And certainly, McDonnell Douglas, if you have a causal connection between a materially adverse act or, in the Muldrow context, if there's some harm that is connected to gender or other protected activity, then that would be constituting harm, some sort of adverse act.

[00:04:31] Speaker 01:
And again, materially adverse act seemingly is the standard under white.

[00:04:36] Speaker 01:
I think white is often used to state that there should be some sort of substantial material harm.

[00:04:44] Speaker 01:
And I think the context of white was sometimes there are petty slights, trivial slights that normally are not actionable.

[00:04:57] Speaker 01:
But of course, their stated context matters.

[00:05:00] Speaker 01:
And here I think the context is we have an employee who loved her job who really wanted to continue working

[00:05:05] Speaker 01:
throughout her notice period, from the resignation on November 9th through November 23rd.

[00:05:10] Speaker 03:
I don't understand what you just said.

[00:05:13] Speaker 01:
I'm sorry?

[00:05:13] Speaker 03:
I do not understand your last statement.

[00:05:18] Speaker 03:
Do you remember what it was?

[00:05:20] Speaker 01:
I do.

[00:05:21] Speaker 01:
So I'm trying to get back to that.

[00:05:23] Speaker 01:
So in white, the court stated that petty slights are usually non-actionable.

[00:05:33] Speaker 01:
However, context matters.

[00:05:35] Speaker 01:
In White, the context was a suspension with pay and then reassignment of job duties within the job description.

[00:05:46] Speaker 01:
And the jury found that there was a causal connection between the protected activity and the harm there.

[00:05:53] Speaker 01:
And here, I think that there is that causal connection.

[00:05:56] Speaker 04:
Well, I'm looking at White.

[00:06:02] Speaker 04:
And it says that for a retaliation adverse action, a reasonable employee would have found the challenge action material adverse, which well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

[00:06:18] Speaker 04:
Isn't that the standard we're looking at?

[00:06:20] Speaker 01:
Yes.

[00:06:21] Speaker 01:
And on my brief, I also argued that.

[00:06:24] Speaker 01:
In the context of Muldrow, in Muldrow, they state that standard and then state it as, frankly, extra textual.

[00:06:33] Speaker 04:
Well, before we leave the standard here, the challenged action is what?

[00:06:41] Speaker 04:
What's the challenge?

[00:06:42] Speaker 01:
The challenge action would be the termination on November 12, 2021.

[00:06:44] Speaker 04:
Well, the challenged action is telling her,

[00:06:48] Speaker 04:
that her last day is November 12 and she'll be paid through November 23.

[00:06:53] Speaker 04:
Correct.

[00:06:53] Speaker 04:
Correct?

[00:06:54] Speaker 04:
Yeah.

[00:06:54] Speaker 04:
Why would that dissuade someone from bringing to the attention of the employer the concerns that she had previously brought to the attention of the employer?

[00:07:05] Speaker 04:
I think... Is there anything in the record to suggest that she wouldn't have brought her concerns to the attention of the employer if she was going to be given this paid period of leave?

[00:07:17] Speaker 01:
I think there's evidence in the record from Darshey Schnoor and from Jen Blaine that the message that they were sent was, you know, shut up or get out.

[00:07:25] Speaker 01:
And several other employees left because of the handling of this.

[00:07:28] Speaker 01:
And I think, you know, the... But this isn't a shut up or get out.

[00:07:33] Speaker 04:
This is we're going to pay you for another 11 days.

[00:07:37] Speaker 01:
Right.

[00:07:38] Speaker 01:
That's it.

[00:07:38] Speaker 01:
Yeah.

[00:07:39] Speaker 01:
And monetary harm is not a necessary element of employment discrimination claim nor retaliation claim.

[00:07:45] Speaker 01:
Both Moldrow and White stand for that.

[00:07:47] Speaker 03:
Well, if she hadn't resigned and sent a letter to that effect, your argument might be a little stronger.

[00:07:55] Speaker 03:
Right.

[00:07:55] Speaker 03:
She said, I'm resigning because I want to.

[00:08:02] Speaker 03:
And how do you turn that into an adverse employment?

[00:08:10] Speaker 01:
Either a materially adverse act or some harm under Muldrow.

[00:08:14] Speaker 04:
Under the mold rose the standard for there is sex discrimination cracks, right?

[00:08:21] Speaker 04:
But the claim we're talking about now isn't the sex discrimination claim It's the retaliation claim right the white case set the standard for the retaliation claim, so why do you go to Muldrow?

[00:08:33] Speaker 04:
How can you even go to?

[00:08:35] Speaker 01:
Again, I think Muldrow is informative because the text of the discrimination and the retaliation provisions are almost identical.

[00:08:42] Speaker 01:
They state that you shall not discriminate against people because of a protected category or because of a protected activity.

[00:08:49] Speaker 01:
There's no standard of harm, and that's how Muldrow was decided.

[00:08:54] Speaker 01:
To add words to a statute is to change it.

[00:08:56] Speaker 01:
Congress did intend to

[00:08:58] Speaker 01:
In Justice Kavanaugh's concurrence, he states discrimination is harm.

[00:09:02] Speaker 01:
And I think retaliation is also harm.

[00:09:04] Speaker 01:
And we want to promote people to have access to this apparatus to complain of.

[00:09:11] Speaker 04:
Is there any indication in Muldrow that it is modifying the standard for adverse action in a retaliation case?

[00:09:21] Speaker 01:
I believe that there's a very short sentence.

[00:09:25] Speaker 01:
Frankly, this extra textual test, I think, is the best indication.

[00:09:30] Speaker 01:
In Muldrow, they did not have a retaliation claim in front of them.

[00:09:32] Speaker 01:
So they did not decide that.

[00:09:34] Speaker 01:
And so I think using the reasoning of Muldrow, that extension to a retaliation claim, they could be read coterminously.

[00:09:43] Speaker 01:
And so going back to the Materially Adverse Act,

[00:09:46] Speaker 01:
Again, I believe that the statements from Jen Blaine, from Darcy Schnoor, these employees who had left, you can draw an inference that everyone leaving, you know, they didn't think that complaints would be taken seriously.

[00:09:59] Speaker 02:
This is being... That seems to be exactly what you argued in district court, constructive discharge.

[00:10:06] Speaker 02:
And I thought I heard you tell Judge Matheson that you're no longer arguing constructive discharge.

[00:10:12] Speaker 02:
And so constructive discharge seems to be not only not what you're arguing here, in other words, a preservation issue, but it seems to me to be the exact opposite of what you're arguing.

[00:10:27] Speaker 02:
Constructive discharge is ordinarily based on the fact that I'm going to resign, but I really didn't have any choice.

[00:10:33] Speaker 02:
Your argument now is not that she resigned because she didn't have a choice, but that

[00:10:42] Speaker 02:
that what they did by telling her that she couldn't stay another 12 to 14 days to say goodbye to the staff and residents would have chilled any other ordinary person from making a similar disclosure.

[00:10:58] Speaker 02:
Did you make that argument in district court?

[00:11:00] Speaker 01:
The chilling argument, no, in the district court.

[00:11:04] Speaker 02:
Did you make any argument that, yeah, OK, well, if that's the standard,

[00:11:10] Speaker 02:
which I think you earlier told Judge Matheson, extra textually or not, that that is the standard.

[00:11:17] Speaker 02:
And you didn't argue in district court that the standard was satisfied.

[00:11:23] Speaker 02:
How can we reverse?

[00:11:25] Speaker 01:
I think we can reverse on a couple of different grounds.

[00:11:28] Speaker 01:
One, I think you can fine them old jokes since retaliation claim.

[00:11:32] Speaker 02:
But if you're going to- OK, well, walk me through that.

[00:11:35] Speaker 02:
I don't understand.

[00:11:39] Speaker 02:
If you acknowledge that the standard is chilling an ordinary person from pursuing this disclosure, and you didn't argue that that was satisfied, how does our interpretation of Muldrow affect that analysis?

[00:11:59] Speaker 02:
Are you saying we ought to overrule our precedent?

[00:12:02] Speaker 01:
I think that white could be overruled in light of Muldrow.

[00:12:06] Speaker 02:
But how can the three of us do that?

[00:12:08] Speaker 02:
Are you saying we ought to embark to overrule a precedent?

[00:12:11] Speaker 01:
Well, and I want to wrap up, and I want to answer your question, but I want to wrap up briefly.

[00:12:15] Speaker 01:
I certainly think that it could just be, you know, the retaliation standard can be read, you know, by the text of the statute.

[00:12:22] Speaker 01:
I think that would be a great way to apply the facts of the case here.

[00:12:25] Speaker 01:
So again, I want to reserve some time, so I appreciate it.

[00:12:31] Speaker 04:
Thank you, counsel.

[00:12:36] Speaker 00:
May it please the court.

[00:12:38] Speaker 00:
My name is Whitney Casement.

[00:12:39] Speaker 00:
I'm with Stevenson Brand Law Firm out of Topeka, Kansas.

[00:12:43] Speaker 00:
And I represent the appellee, Wellsville Health, which is actually MISTIER, Living and Health Care, Inc.

[00:12:52] Speaker 00:
But I'm going to refer to it as Wellsville Health throughout these arguments.

[00:12:57] Speaker 00:
This court should affirm the district court's decision to grant summary judgment to Wellsville Health

[00:13:04] Speaker 00:
First, because the district court was right, but for the wrong reasons.

[00:13:10] Speaker 00:
Although the district court judge did apply the wrong standards of harm, unfortunately... But not applying the chilling standard?

[00:13:18] Speaker 00:
I'm sorry?

[00:13:18] Speaker 02:
How did the judge apply the wrong standard?

[00:13:22] Speaker 00:
The judge didn't really apply Muldrow at all.

[00:13:28] Speaker 00:
The Muldrow decision did come out before the district court's summary judgment order.

[00:13:33] Speaker 00:
And the district judge did cite Muldrow, but didn't really apply it in any way.

[00:13:39] Speaker 03:
You're saying because he went to the adverse, no adverse employment.

[00:13:45] Speaker 00:
Well, with regard to the discrimination claim, the only thing that the district court judge did is say there was no constructive discharge, therefore there's no adverse action.

[00:13:57] Speaker 00:
And it was like a paragraph in the order.

[00:14:01] Speaker 03:
You think he was wrong on that point?

[00:14:03] Speaker 00:
No, I don't think so.

[00:14:06] Speaker 00:
We're not really talking about constructive discharge anymore anyway, but I think he was correct that this was a resignation.

[00:14:13] Speaker 00:
It was voluntary.

[00:14:14] Speaker 00:
And I think based on the record that the court has before it today, even though the district court judge applied the wrong standard, this court can correct that and still affirm based on the record today.

[00:14:30] Speaker 00:
And the district court judge did admittedly also apply the wrong standard for retaliation.

[00:14:37] Speaker 00:
The white case doesn't require significant harm.

[00:14:40] Speaker 00:
I just heard you discussing the standard.

[00:14:44] Speaker 00:
materially adverse action that would dissuade a reasonable person from complaining.

[00:14:50] Speaker 00:
That's the standard that should have been applied.

[00:14:53] Speaker 00:
But again, this court has a record before it that would allow the court to correct that and still affirm.

[00:15:02] Speaker 00:
And as you all, I'm sure, are very well aware, this court has preference for affirming, if you can, with the record before you.

[00:15:10] Speaker 00:
And it's our contention that you can do that and correct what the district court did.

[00:15:16] Speaker 00:
In addition, no reasonable jury could find that the facts of this case meet the standard of harm under either Muldrow for the discrimination claim or Burlington Northern versus White for the retaliation claim.

[00:15:32] Speaker 00:
And finally, and perhaps maybe most importantly, the appellant forfeited her arguments with regard specifically to her discrimination claim.

[00:15:42] Speaker 00:
and waived plain error on appeal by not briefing it until the reply brief.

[00:15:48] Speaker 00:
That was the first time the plain error argument was raised.

[00:15:51] Speaker 04:
On the discrimination claim?

[00:15:53] Speaker 00:
On the discrimination claim, that's correct.

[00:15:57] Speaker 00:
Specifically with regard to an element of the prima facie case of discrimination, the element of

[00:16:04] Speaker 00:
whether or not there was an inference of discrimination, that was not briefed before the district court.

[00:16:11] Speaker 00:
The employer, the appellee and defendant, briefed it.

[00:16:15] Speaker 00:
That was something that was in the summary judgment motion, but the appellant did not respond to that.

[00:16:23] Speaker 00:
And the district court also didn't pass upon it.

[00:16:27] Speaker 00:
And there's case law saying,

[00:16:29] Speaker 00:
Sometimes when a district court passes on an issue, even if it's not briefed, of course, it might not be forfeited.

[00:16:34] Speaker 00:
But here, that didn't happen.

[00:16:35] Speaker 00:
District judge did not address the inference of discrimination element, instead finding that there was no adverse action.

[00:16:45] Speaker 00:
So grand summary judgment on a different element of the prima facie case.

[00:16:50] Speaker 00:
So it's been forfeited.

[00:16:51] Speaker 00:
And I think the plain error argument has been waived.

[00:16:58] Speaker 00:
could just affirm on that basis on the discrimination claim.

[00:17:02] Speaker 04:
Could I back up on retaliation?

[00:17:05] Speaker 04:
Sure.

[00:17:07] Speaker 04:
Splane argues that she was denied the opportunity to make a quote unquote graceful exit from the workplace.

[00:17:18] Speaker 04:
Was that argument presented in district court?

[00:17:24] Speaker 00:
Let me look at my chart because it is a little confusing.

[00:17:30] Speaker 00:
On the retaliation adverse action question, the argument before the district court was they said that her employment was terminated rather than allowing her to work through her resignation date.

[00:17:48] Speaker 00:
The district court judge

[00:17:51] Speaker 00:
basically addressed it as an accelerated final day and constructive discharge claim.

[00:17:57] Speaker 00:
And so now that has changed a little bit, the not saying goodbye to residents.

[00:18:06] Speaker 00:
At the district court, they were just arguing she was terminated and wasn't allowed to work through her last day.

[00:18:11] Speaker 00:
This whole question about whether she was allowed to say goodbye to residents, the first time that that was raised was in this appeal.

[00:18:19] Speaker 04:
So you're saying it was forfeited?

[00:18:21] Speaker 00:
Yes.

[00:18:22] Speaker 04:
The graceful exit argument.

[00:18:24] Speaker 00:
Correct.

[00:18:25] Speaker 00:
I'm sorry.

[00:18:25] Speaker 00:
That was a long way to get to yes.

[00:18:28] Speaker 00:
The answer is yes.

[00:18:29] Speaker 00:
It's been forfeited.

[00:18:30] Speaker 00:
And again, the plain error argument wasn't made till the reply brief.

[00:18:37] Speaker 00:
So if you'd like to stay on the retaliation claim, I can move on to that.

[00:18:41] Speaker 00:
I have other arguments for the discrimination claim.

[00:18:45] Speaker 00:
What I will say, one thing that was not briefed at all before the district court was

[00:18:51] Speaker 00:
the employer's defense of showing non-discriminatory reasons for the actions it took or pretext, not briefed at all, but was briefed on appeal.

[00:19:02] Speaker 00:
So again, those arguments have been forfeited.

[00:19:04] Speaker 03:
But moving on to the retaliation- Is there any evidence in the record that she was prohibited from saying goodbye to the people she knew at work?

[00:19:17] Speaker 00:
No.

[00:19:17] Speaker 00:
Thank you.

[00:19:21] Speaker 00:
What did happen is she, as you noted, she provided a resignation letter.

[00:19:26] Speaker 00:
She said her last day would be in two weeks.

[00:19:29] Speaker 00:
And after a few days, Wellsville Health said, we don't need you here anymore.

[00:19:37] Speaker 00:
We'll pay you through your last day.

[00:19:40] Speaker 00:
We'll even pay you for your PTO, even though you didn't give the requisite notice.

[00:19:44] Speaker 00:
She was supposed to give 30 days.

[00:19:46] Speaker 00:
She only gave two weeks.

[00:19:47] Speaker 00:
They said, that's OK.

[00:19:49] Speaker 00:
We'll pay you for all of it.

[00:19:50] Speaker 00:
And they did.

[00:19:51] Speaker 00:
So with regard to the retaliation claim, which seems to be the court's focus today, the adverse action claim here just does not meet the standard of harm for retaliation.

[00:20:09] Speaker 00:
As you mentioned, the standard after white is

[00:20:15] Speaker 00:
It has a materially adverse action that would dissuade a reasonable employee from complaining of discrimination.

[00:20:22] Speaker 00:
Muldrow did not change that.

[00:20:25] Speaker 00:
Muldrow, in fact, noted that the purposes of the anti-discrimination provision and the anti-retaliation provision, they're entirely different.

[00:20:38] Speaker 00:
So the purpose of the anti-retaliation provision

[00:20:45] Speaker 00:
is the test was meant to capture those employers, those employer actions serious enough to dissuade a reasonable worker from making or supporting a charge of discrimination.

[00:20:57] Speaker 00:
Muldrow says that.

[00:20:58] Speaker 00:
That's a direct quote.

[00:21:00] Speaker 00:
Whereas the purpose, again, Muldrow, the anti-discrimination provision, we explain, simply seeks a workplace where individuals are not discriminated against because of traits like race and sex.

[00:21:12] Speaker 04:
Is there any helpful

[00:21:14] Speaker 04:
a case law, either 10th Circuit or otherwise, that applies that standard to a situation like we have here.

[00:21:24] Speaker 04:
Again, is it paid leave, is it administrative leave, whatever it is, but you're paying someone, telling them they can't be there, but you're paying them until the end.

[00:21:37] Speaker 04:
Is there any guidance out there?

[00:21:40] Speaker 00:
Yes, there is.

[00:21:41] Speaker 00:
And I did not include this in my brief, and I'm happy to supplement.

[00:21:46] Speaker 00:
There's a case.

[00:21:49] Speaker 00:
It's called Gopal versus University of Connecticut.

[00:21:54] Speaker 00:
It's a District of Connecticut case from March 31st of 2025.

[00:22:00] Speaker 00:
It actually applies the some harm standard.

[00:22:04] Speaker 00:
So it sort of addresses your point.

[00:22:06] Speaker 00:
Can you say the name one more time?

[00:22:08] Speaker 00:
Gopal, G-O-P-A-L.

[00:22:12] Speaker 00:
And what I like about that case is that I was looking for post-mold row cases that were analogous in any way to this case.

[00:22:24] Speaker 00:
Because I think that standard is a little bit confusing.

[00:22:27] Speaker 00:
And in that case, they gather cases regarding paid leave.

[00:22:32] Speaker 00:
Because I, too, that's where my brain went.

[00:22:35] Speaker 00:
The closest analogy I could find in the case law

[00:22:39] Speaker 00:
to what happened here is paid administrative leave.

[00:22:42] Speaker 00:
So that case in particular gathers cases and how they've been treated post-Moldro.

[00:22:48] Speaker 00:
Now again, that's the discrimination standard.

[00:22:51] Speaker 00:
But I think it's still informative because courts are divided about whether or not paid administrative leave even meets the Moldro standard of some harm.

[00:23:03] Speaker 00:
It is very context specific.

[00:23:08] Speaker 00:
The Gopal decision actually I thought was interesting because in that case, the court noted that the employee was put on paid administrative leave pending an investigation into misconduct by that employee.

[00:23:25] Speaker 00:
Now I want to be clear, there's no allegations of misconduct by Ms.

[00:23:29] Speaker 00:
Blaine.

[00:23:30] Speaker 00:
But I think it is a bit analogous in that in that case, they said,

[00:23:36] Speaker 00:
Allowing employers to take responsible steps, particularly in the case of a university and public sector employer, to protect against any ongoing misconduct by the employee under investigation, and it doesn't render the employee worse off.

[00:23:52] Speaker 00:
They recognize that the employer has a duty to protect itself, its employees,

[00:24:01] Speaker 00:
And so why I think that's analogous to this case is when you have an employee resign, this is very common, especially when someone is saying they're unhappy with the work environment, don't want to be there, to say, OK, you don't have to work out your two weeks because the employer needs to protect their data, protect their employees.

[00:24:23] Speaker 00:
In this case, protect residents of a nursing home.

[00:24:26] Speaker 04:
Was there any evidence that this is the course that they took with other employees?

[00:24:36] Speaker 04:
That is, if someone was going to separate employment, they would say, well, that's fine, but why don't we make this your last day?

[00:24:47] Speaker 04:
We'll pay you for a little bit further.

[00:24:49] Speaker 04:
Is that a common practice there?

[00:24:51] Speaker 04:
Is there any evidence of that?

[00:24:53] Speaker 04:
Or is there any evidence that that's the industry practice?

[00:24:58] Speaker 00:
No, there's not.

[00:24:59] Speaker 00:
I don't have evidence that it's an industry practice.

[00:25:02] Speaker 00:
I don't have evidence of like statistical evidence of that happening.

[00:25:07] Speaker 00:
I don't know that this company is maybe big enough to have that kind of statistical evidence.

[00:25:13] Speaker 00:
But what I do have is deposition testimony from the administrator, Jill McCoy, which I

[00:25:20] Speaker 00:
That is in the supplemental appendix.

[00:25:25] Speaker 00:
That was not argued below because their arguments changed so much that that's not evidence that was presented before the district court.

[00:25:33] Speaker 00:
But you have it in the supplemental appendix to the extent you want to read her deposition.

[00:25:37] Speaker 00:
And her point was, we have had other employees who we allowed to work out their notice period.

[00:25:45] Speaker 00:
But the reason for those employees working out their notice period is we didn't have a replacement.

[00:25:50] Speaker 00:
And in this case, according to, again, this is the administrator of this nursing home, said we had a replacement for Ms.

[00:26:00] Speaker 00:
Blaine.

[00:26:00] Speaker 00:
So we didn't need her to work out the two weeks.

[00:26:03] Speaker 00:
So to answer your question, no statistical evidence.

[00:26:06] Speaker 00:
But I think that is a reasonable answer.

[00:26:11] Speaker 04:
Anecdotal.

[00:26:13] Speaker 00:
It is anecdotal.

[00:26:14] Speaker 00:
You're right.

[00:26:15] Speaker 00:
You're correct.

[00:26:15] Speaker 00:
But that it is coming from the administrator who

[00:26:20] Speaker 00:
had been there for many years and knows what had occurred in the past with their employees.

[00:26:27] Speaker 02:
I'm sorry to interrupt you, but can I ask you about the retaliation claim with regard to the disposition?

[00:26:33] Speaker 02:
As I understand it, in your first 30 seconds, you acknowledged that the district court had applied the wrong standard.

[00:26:39] Speaker 02:
Yes.

[00:26:41] Speaker 02:
And this issue, as I understand it, wasn't really briefed in district court

[00:26:46] Speaker 02:
by either side about whether or not the inability to continue to work throughout the remainder of the period would have killed another person from making the protected disclosure.

[00:26:59] Speaker 02:
Is that correct?

[00:27:02] Speaker 00:
Not quite.

[00:27:04] Speaker 00:
I think before the district court, it's changed just slightly.

[00:27:07] Speaker 00:
So before the district court on the retaliation claim, if you look at pages,

[00:27:15] Speaker 00:
33 through 34 of their response to the summary judgment motion.

[00:27:19] Speaker 00:
I don't have the appendix pages before me right now, but if you look at those pages, they argue that they terminated her employment rather than allow her to work through a resignation date.

[00:27:30] Speaker 00:
That was their whole argument before the district court.

[00:27:33] Speaker 00:
Now they're saying, well, in addition to that, you know, she didn't get to say goodbye to residents, and she didn't get to have this graceful accident.

[00:27:42] Speaker 00:
So that's how it's changed.

[00:27:44] Speaker 02:
Yeah, and maybe I misspoke, because that's exactly what I was trying to ask you.

[00:27:49] Speaker 02:
So in light of the fact that this argument wasn't presented in district court, because as you just explained, it's changed.

[00:28:01] Speaker 02:
To decide whether or not to affirm an alternative ground, we typically consider three factors that are Elkins versus Comfort.

[00:28:07] Speaker 02:
And the first factor is whether or not the argument was presented both in district court and on appeal.

[00:28:13] Speaker 02:
That seems to cut against you, does it not?

[00:28:17] Speaker 02:
Because this argument was presented on appeal, but not in district court.

[00:28:21] Speaker 02:
Is that fair?

[00:28:22] Speaker 00:
That's fair.

[00:28:23] Speaker 00:
That's true.

[00:28:24] Speaker 02:
And so in order to affirm an alternative ground, we'd have to determine that the other two grounds

[00:28:31] Speaker 02:
that it was a question of law and the record was adequately developed would outlay that first factor in order for us to affirm on the retaliation plan.

[00:28:40] Speaker 02:
Otherwise, would you agree that we'd have to remand since the district court misapplied the standard?

[00:28:46] Speaker 00:
I think that's all correct.

[00:28:48] Speaker 00:
And the point I would make is that you do have a record before you

[00:28:53] Speaker 00:
where you could correct the district court judge.

[00:28:58] Speaker 00:
And I know I'm over my time, so I assume you want me to answer your questions, though.

[00:29:03] Speaker 04:
Please finish your thought.

[00:29:04] Speaker 00:
OK.

[00:29:05] Speaker 00:
And the district, you have a record before you where you can correct what the district court judge did.

[00:29:10] Speaker 00:
And based on that, you can affirm.

[00:29:15] Speaker 00:
Thank you.

[00:29:15] Speaker 00:
OK.

[00:29:15] Speaker 00:
Thank you.

[00:29:30] Speaker 01:
Thank you, Your Honors.

[00:29:31] Speaker 01:
First, I wanted to address the plain error standard.

[00:29:34] Speaker 01:
Council mentioned that this was not brought up until the reply brief, and therefore this argument's waived.

[00:29:39] Speaker 01:
I don't have the case in front of me, but I know in 10th Circuit precedent that's not the case.

[00:29:44] Speaker 04:
Which argument are we talking about?

[00:29:46] Speaker 01:
I'm just talking plain error in general.

[00:29:48] Speaker 01:
So the plain error argument.

[00:29:50] Speaker 04:
Right, but which argument in this case would the plain error standard be applied to?

[00:29:57] Speaker 01:
That would be applying to the

[00:29:59] Speaker 01:
retaliation standard, and then also the discrimination standard for harm, considering neither were applied appropriately in the district court.

[00:30:08] Speaker 01:
And so I don't have the Yukon case.

[00:30:12] Speaker 01:
I've not seen that one, as counsel mentioned.

[00:30:14] Speaker 01:
One of the things they mentioned, counsel mentioned, was the comparators of- Well, before you move on to the second part, I want to ask you about your first one.

[00:30:22] Speaker 02:
You say, based on our precedent, that's just not true.

[00:30:26] Speaker 02:
I'm not aware of that.

[00:30:28] Speaker 02:
Now, we do have a lot of cases that very sensibly say, well, if the appellant has a colorable good faith argument that this was preserved, and the appellate argues in response that it wasn't preserved, you can certainly argue in the alternative in your reply brief, oh, we think because of this reasonable argument that we preserved it.

[00:30:51] Speaker 02:
We're going to stick by that, but in the unlikely event that you buy this hogwash from the appellee, we would argue plain error.

[00:30:59] Speaker 02:
But are you saying on the discrimination claim that you have a reasonable argument that this was preserved?

[00:31:08] Speaker 02:
Even though you really never presented this theory?

[00:31:12] Speaker 01:
Well, I think, one, in the interim, the law changed, right?

[00:31:16] Speaker 01:
And there's 10 circuit precedent that says we're going to apply the current law at the time of the appeal.

[00:31:21] Speaker 01:
And two, as far as, again, I don't have the case in front of me and case law in front of me, but I believe that there is case law that states that a plain error can be presented in a reply brief.

[00:31:34] Speaker 01:
So if there's some, I'm happy to supplement there as well.

[00:31:38] Speaker 02:
I'm not asking you to supplement your question.

[00:31:40] Speaker 04:
I thought I heard you say something along the lines that it may be preserved because the district court itself passed upon

[00:31:53] Speaker 04:
the question.

[00:31:54] Speaker 04:
Is that what you're saying?

[00:31:55] Speaker 01:
That is one of the things that I'm saying.

[00:31:57] Speaker 01:
They held that for there to be harm, there needs to be monetary harm.

[00:32:02] Speaker 01:
I think both White and Muldrow state that that's just not the case.

[00:32:05] Speaker 01:
That's not the standard that's necessary.

[00:32:07] Speaker 01:
In White, there was a paid leave, a paid suspension

[00:32:10] Speaker 01:
They held that that would be actionable retaliation.

[00:32:14] Speaker 01:
One other thing before I close, counsel mentioned comparators.

[00:32:18] Speaker 01:
Here, I think the circumstantial evidence that we used at district court, we used here is testimony by Scott Averill that said, we got rid of Jennifer.

[00:32:27] Speaker 01:
We decided to let her go because she was unhappy due to these complaints of harassment.

[00:32:31] Speaker 01:
That's arguably direct to evidence of retaliation, not necessarily us using comparators.

[00:32:36] Speaker 01:
So we request that this be reversed and remanded to the district court.

[00:32:40] Speaker 01:
Thank you for your time.

[00:32:41] Speaker 04:
Thank you, counsel.

[00:32:49] Speaker 04:
The case will be submitted and counsel are excused.