[00:00:01] Speaker 02:
Our final case this morning, while we're waiting for counsel to get settled, is Burns versus St.

[00:00:09] Speaker 02:
Catherine Hospital, number 243149.

[00:00:34] Speaker 03:
Thank you.

[00:00:35] Speaker 03:
May it please the court, my name is Boyd Byers, and I represent the appellant, Dr. Matthew Burns.

[00:00:41] Speaker 03:
The central question in this Title VII retaliation case is whether defendants met their summary judgment burden by showing there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law.

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Defendants can't meet that burden because the evidence here, when viewed in Burns' favor, with all reasonable inferences in his favor,

[00:01:03] Speaker 03:
is sufficient to state a prima facie case and to show that defendants stated reasons for their adverse actions against him were protectual.

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This conclusion is supported by numerous prior decisions by this court with factual parallels as cited in our briefs.

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Dr. Burns received his medical degree from the University of Kansas.

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He completed a fellowship at Washington University in St.

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Louis.

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He was on the staff at the University of Minnesota before coming home to Kansas for family reasons in 2012 and taking a job with the defendants who jointly employed him.

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Throughout his eight-year employment with the defendants, his performance reviews, his quality reviews,

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The objective care quality data metrics were good and met or exceeded expectations.

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But in August 2019, Burns filed a formal written complaint to report another doctor's sexual harassment of nurses.

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Defendants did not follow their investigation procedures and policies.

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They did not conduct a proper investigation.

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And the investigator told other doctors, including the subject of the complaint, that Burns had filed a false complaint.

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However, defendants do not dispute in this case that Burns filed the complaint in good faith.

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And the record evidence shows that the allegations that he made did, in fact, have a valid factual basis.

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In September of 2019, the chief of surgery reached out to Dr. Tony Green Sheetwood,

[00:02:40] Speaker 03:
who was the group VP and physician executive, and she expressed concern that she had been told that Burns had filed a false complaint.

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In October of that year, Green Sheetwood met with Burns to close out the complaint and told him that it had no merit and it was being dismissed.

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Burns told her that the nurses who had been sexually harassed but not actually interviewed wanted to talk to her so they could substantiate the complaint, but she refused to talk to them.

[00:03:11] Speaker 03:
Burns wrote to her in a text and said he was frustrated for himself and for the nurses.

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In January, Burns was asked to undergo a psychological evaluation for the stated reason that he had filed a false complaint.

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He complained that this was retaliation and the request was withdrawn.

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Then on January 30th of 2020, Burns called Green Sheetwood to let her know that Kessler, the doctor who had been the subject of the sexual harassment complaint, had retaliated against him by filing a false report to the Kansas Board of Healing Arts.

[00:03:49] Speaker 03:
That was the last communication between Green Sheetwood and Burns until February 12 when she fired him.

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As this panel knows, Title VII cases are analyzed under a three-step burden shifting analysis under which the plaintiff has a light, not onerous burden to state a prima facie case.

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Defendants must then state a non-retaliatory reason for the adverse action, and if they're able to do so, the plaintiff must identify evidence from which a jury could infer that the defendant's stated reason is pretextual.

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With regard to Burns' retaliation complaint with respect to his discharge, the defendants argue that Burns cannot state a prima facie case due to the lack of causation because the two executives who had to formally approve of the termination were not aware of his protected activity.

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However, this case falls squarely under the cat's paw doctrine, which states the prima facie burden of causation is satisfied when a subordinate who has knowledge of the protected activity makes a recommendation that influences the official decision maker to act.

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This case is classic cat's paw.

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Green Sheet would not only knew about, she was at the center of the controversy over Burns' protected complaints.

[00:05:04] Speaker 03:
Yes?

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This is only with regard to an alternative ground to affirm, right?

[00:05:09] Speaker 04:
Because the district court on the termination claim assumed, arguing that

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There was satisfaction of the presentation.

[00:05:17] Speaker 03:
Correct, yes.

[00:05:19] Speaker 03:
Yes, that is absolutely correct, Your Honor.

[00:05:21] Speaker 03:
As the district court assumed without specifically finding, but they've raised that issue, so we wanted to proactively address that.

[00:05:27] Speaker 03:
And the point being that this is a classic cat's paw case.

[00:05:31] Speaker 02:
This is a pretext issue on appeal, correct?

[00:05:34] Speaker 03:
Correct.

[00:05:36] Speaker 03:
Correct.

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And with respect to the post-termination activity, there is a question with regard to the prima facie case.

[00:05:43] Speaker 03:
So let's just jump right into pretext because that is the central issue of the case.

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This court has said many times the pretext may be shown by evidence of weaknesses, inconsistencies, or contradictions that the employer's stated reason for its actions are unworthy of belief.

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And that pretext evidence can take a variety of forms, although the plaintiff only has to show pretext in one way.

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Defendants in the district court referred to Byrne's presentation of this evidence as a spaghetti on the wall approach to see which one will stick.

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But this court has instructed many times the court should not look at each piece of evidence in isolation.

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Rather, they're obligated to consider pretext evidence in its totality.

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And here, the pretext evidence takes many of the forms that this court has historically recognized are adequate evidence of pretext.

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each one of which is sufficient to show pretext in and of itself.

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And when this evidence is viewed in its totality, as this court says that it must be, there's no doubt.

[00:06:48] Speaker 02:
Well, the district court seemed to think that the evidence regarding the investigation, whether the investigation was reasonable or unreasonable, was a critical factor on pretext.

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And in fact, as you well know,

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At one point, the district court said, so at bottom, a single phone call is the most important event to evaluate pretext here in reference to the January 30 phone call.

[00:07:22] Speaker 02:
So far, so good?

[00:07:24] Speaker 03:
Well, that's what the district court said, correct.

[00:07:27] Speaker 03:
We would disagree that that's so good, but that's what the district court said.

[00:07:30] Speaker 02:
No, I'm just asking if I got it right.

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Have I got it right so far?

[00:07:34] Speaker 02:
That's what the district court said, correct.

[00:07:37] Speaker 02:
OK.

[00:07:37] Speaker 02:
OK.

[00:07:37] Speaker 02:
So that sets up the question.

[00:07:39] Speaker 02:
What I'd like to ask you is, Dr. Burns' call to Dr. Green-Cheatwood on January 30, didn't Dr. Green-Cheatwood's email report of that call to Mr. Sabey, the general counsel, show that Dr. Burns had an opportunity there and then

[00:08:02] Speaker 02:
to discuss the anonymous complaint against him.

[00:08:08] Speaker 03:
She did send that communication, as you indicated, but we would disagree that that was a fair and

[00:08:17] Speaker 00:
Dr. Burns didn't discuss anything with her other than to inquire as to whether or not she knew that he had been investigated by this other doctor.

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This was new information that was coming in.

[00:08:30] Speaker 00:
Dr. Burns became aware that Dr. Kessler had filed a... She knew about it and didn't tell him that.

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And they did not get into the facts of the earlier issue.

[00:08:44] Speaker 03:
That's absolutely correct.

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It was from Dr. Burns' perspective.

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This was new information.

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He wanted to make sure she was aware about it.

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And he said, I want you to know that there's been a complaint filed with the Kansas Board of Healing Arts.

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He specifically said, this is retaliation against me by Dr. Kessler, who is the subject of my sexual harassment complaint.

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And at that point, there was no discussion.

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She asked him no questions.

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There was no digging into, well, what was the reason for this?

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Why did you do that?

[00:09:18] Speaker 03:
It was just, he said, there is a false complaint made.

[00:09:20] Speaker 03:
I want you to know that it was retaliatory.

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Those things are false.

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And I can explain and show why they're false.

[00:09:28] Speaker 03:
At that point, he wasn't aware of or thinking there was any investigation by the hospital against him.

[00:09:33] Speaker 02:
Counsel, I really wasn't done asking you about this.

[00:09:38] Speaker 02:
What I wanted to know is, does the record show that Dr. Green-Cheatwood had seen the complaint at the time of that call?

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Or was this the first that she'd heard about it?

[00:09:54] Speaker 03:
I don't recall if, to my understanding, that was the first she was aware of it.

[00:10:02] Speaker 03:
I don't want to misrepresent it.

[00:10:04] Speaker 00:
Aware of what?

[00:10:06] Speaker 00:
Of which, the complaint against Kessler or the complaint against Burns?

[00:10:11] Speaker 02:
Yeah, the complaint against Burns.

[00:10:13] Speaker 02:
Was she aware of that?

[00:10:15] Speaker 03:
The complaint that was filed with the Board of Healing Arts?

[00:10:18] Speaker 03:
Yes, yes.

[00:10:20] Speaker 03:
I'm sorry, I don't recall if Mr. Sabey or somebody else had previously told her about it, but my understanding recollection is that was the first she even knew about it.

[00:10:29] Speaker 02:
All right, all right.

[00:10:31] Speaker 02:
What caught my eye about the call

[00:10:34] Speaker 02:
was the follow-up email that Dr. Green-Cheatwood sent to Mr. Savie.

[00:10:43] Speaker 02:
And in that email, she lists some detail about the complaint.

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She says there were 10 items.

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She describes what many of them were.

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She talks about how Dr. Burns

[00:11:03] Speaker 02:
considered this retaliatory, but also denied.

[00:11:07] Speaker 02:
And my question is what impact that evidence has relative to your argument that the follow-up investigation Mr. Sabey initiated was inadequate and unreasonable?

[00:11:25] Speaker 02:
In other words, if I understand your argument, it's because they didn't interview him.

[00:11:29] Speaker 02:
They went out and they interviewed a bunch of other folks.

[00:11:32] Speaker 02:
Correct.

[00:11:32] Speaker 02:
They didn't interview him.

[00:11:34] Speaker 02:
But there was a conversation, at least on January 30, and the district court thought that was significant in favor

[00:11:48] Speaker 02:
in favor of the hospital, right?

[00:11:50] Speaker 03:
Yes, it was a short.

[00:11:51] Speaker 03:
We know it was an eight-minute conversation, so we know it was very short.

[00:11:55] Speaker 03:
The summation she gave came from, I believe that came from the report after it was forwarded to her.

[00:12:01] Speaker 03:
I don't believe it was discussed in that level of detail, according to the record.

[00:12:06] Speaker 03:
But by the time she forwarded on to Sabie, she was trying to summarize some of the things that were written in the complaint.

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That didn't mean that those were all discussed between her and Burns.

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And in fact, Burns just simply said, these things in the complaint are not true.

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But there was no follow-up.

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There was no investigation.

[00:12:27] Speaker 03:
And then later... OK.

[00:12:29] Speaker 02:
I just want to make sure I'm understanding the sequence here.

[00:12:33] Speaker 02:
So when Dr. Burns called her, that's the first time that Dr. Green-Sheetwood had heard about the complaint to the board.

[00:12:43] Speaker 03:
Correct.

[00:12:44] Speaker 02:
All right.

[00:12:44] Speaker 02:
So they have this eight-minute conversation.

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And at some point after that same day, she sends the email to Mr. Sabe.

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And what I'm hearing from you is that in between the phone call and the email, she had received and reviewed the complaint.

[00:13:02] Speaker 03:
Correct.

[00:13:05] Speaker 03:
And again, that was just one piece of pretext evidence in this case, is there's significant pretext evidences established by the prior precedents of this court.

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The defendants had numerous shifting, inconsistent, and abandoned reasons about why they terminated Dr. Burns.

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When he asked at the time of termination, and let me back up, there was no actual documentation about the reason for termination that was ever made at the time the decision was made.

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And when he was informed of the termination, he specifically said, why am I being terminated?

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And the response from Green Sheetwood at that point was, it's for no cause.

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And later, only after Dr. Burns filed the complaint of retaliation with the EEOC,

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did we first hear some reasons from the defendants in which they claimed that there were two reasons, the most important or the primary one being halting the peer review process.

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But by the time we got to discovery and summary judgment, they abandoned that reason because it was exposed as being obviously untrue.

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And they knew it wasn't true at the time and couldn't have relied on that reasonably.

[00:14:18] Speaker 03:
I'm going to go ahead and reserve the rest of my time for rebuttal.

[00:14:23] Speaker 03:
Thank you, counsel.

[00:14:36] Speaker 01:
Good morning.

[00:14:37] Speaker 01:
May it please the court.

[00:14:38] Speaker 01:
My name is Richard Olmsted, and I'm appearing today on behalf of Cintura Health Corporation, which is now Common Spirit Health in St.

[00:14:45] Speaker 01:
Catherine Hospital.

[00:14:46] Speaker 01:
I'm joined at counsel table by Lisa Martin, my co-counsel.

[00:14:51] Speaker 01:
I'd like to first address the timeline that was discussed during Planoff's opening argument.

[00:14:57] Speaker 01:
January 30th, when Dr. Burns made the call to Dr. Green-Sheetwood, Dr. Green-Sheetwood had no knowledge of the KBHA complaint.

[00:15:05] Speaker 00:
She had knowledge that a complaint had been filed by somebody against Burns.

[00:15:10] Speaker 01:
No.

[00:15:11] Speaker 01:
What she had knowledge of was that the hospital received a subpoena from the KBHA requesting information about Dr. Burns.

[00:15:19] Speaker 01:
There was no indication that a complaint had been filed.

[00:15:23] Speaker 01:
We were left to guess what it was.

[00:15:25] Speaker 00:
get a subpoena without knowing something had been filed.

[00:15:28] Speaker 01:
Well, it was an investigation that was being conducted by the KBHA.

[00:15:32] Speaker 01:
Whether that was prompted by a complaint or some other action, we don't know.

[00:15:35] Speaker 04:
And we view the evidence favorably.

[00:15:37] Speaker 04:
to Dr. Burns.

[00:15:38] Speaker 01:
Correct.

[00:15:40] Speaker 01:
We do have a timeline of when the hospital learned of the complaint and received it for the first time.

[00:15:45] Speaker 01:
It was the February 3rd email from Mr. Byers' partner, Alex Schulte, who was representing Dr. Burns at the time in a related but different dispute with the hospital.

[00:15:55] Speaker 02:
So you're going to disagree with Mr. Byers who said that Dr. Green-Sheetwood had received the complaint before she wrote the email.

[00:16:07] Speaker 01:
Yeah, vehemently disagree.

[00:16:10] Speaker 02:
You would disagree.

[00:16:11] Speaker 01:
The two of you are in disagreement.

[00:16:13] Speaker 01:
Yeah, there is.

[00:16:14] Speaker 01:
And where this court can resolve that disagreement is there is no evidence in the record to suggest that the hospital received the complaint immediately after the call with Dr. Green-Cheatwood.

[00:16:25] Speaker 04:
There's a lot of discussion about it.

[00:16:30] Speaker 04:
Why does it really impact the decision?

[00:16:33] Speaker 04:
Because, as I understand the evidence from Dr. Burns, is for every single investigation with regard to the quality of care, the hospital asks the obvious question.

[00:16:47] Speaker 04:
There's a complaint about a thyroidectomy.

[00:16:51] Speaker 04:
So what do you make of it, Dr. Burns?

[00:16:54] Speaker 04:
So what's your side of it?

[00:16:56] Speaker 04:
And so he initiates, as Judge Kelly said,

[00:17:00] Speaker 04:
a call to Dr. Green-Cheatwood to say that there's been a complaint by the Kansas Board of Healing, whatever, authority.

[00:17:10] Speaker 04:
And then, as you pointed out to Judge Matheson, I think, or somebody did, that Dr. Green-Cheatwood then recounts 10 complaints or 10 different events, none of which

[00:17:26] Speaker 04:
was recounted by Dr. Burns in this brief eight minutes.

[00:17:29] Speaker 04:
He doesn't give her any arguments about the details of the allegations or his side of it.

[00:17:38] Speaker 04:
So his argument for pretext is, whether she knew about a complaint or didn't know about a complaint, that they ultimately terminated him in part based on competency of care in making inferences

[00:17:55] Speaker 04:
about deficient quality of care, for example, with a thyroidectomy without ever asking him, why did you do a thyroidectomy?

[00:18:06] Speaker 04:
And coupled with all of the other arguments, well, if they're going to refer that to the board, why didn't they refer to the co-surgeon to the board?

[00:18:14] Speaker 04:
So what about that?

[00:18:17] Speaker 04:
Regardless of what Dr. Green-Sheet would knew or didn't know before January 30th, why isn't that at least valid evidence of pretense?

[00:18:25] Speaker 01:
Well, it's not valid evidence of pretext because the court has told us in almost identical situations, it's not evidence of pretext.

[00:18:31] Speaker 04:
What's not evidence of pretext?

[00:18:33] Speaker 04:
The fact that they only talk- Did you ask everybody else what's your version of the allegation of incompetent care?

[00:18:42] Speaker 04:
We're not going to ask you?

[00:18:44] Speaker 04:
We've said that it's not evidence of pretext?

[00:18:47] Speaker 01:
That's correct.

[00:18:47] Speaker 01:
Where?

[00:18:48] Speaker 01:
In rigs versus AirTran airlines, you had almost identical factual pattern.

[00:18:52] Speaker 01:
In Riggs, there was an event that occurred with a Mormon choir group that was boarding an airline, and they experienced rude customer service from multiple members of the AirTrans staff.

[00:19:06] Speaker 01:
The supervisor did a cursory review with the employees that day, the day of the event, and got their side of the story, or at least got their impression of the events.

[00:19:16] Speaker 01:
Three days later,

[00:19:18] Speaker 01:
the travel agent for the group complained directly to Eritrea.

[00:19:23] Speaker 01:
That complaint was escalated to the supervisor to investigate.

[00:19:28] Speaker 01:
She interviewed everybody else that was working the day of the event, but did not interview Ms.

[00:19:34] Speaker 01:
Riggs, who was the target of the complaint.

[00:19:36] Speaker 04:
And there were complaints by other customers?

[00:19:39] Speaker 01:
Correct.

[00:19:40] Speaker 00:
Did not interview Ms.

[00:19:42] Speaker 00:
Riggs as part of the complaint.

[00:19:44] Speaker 00:
Well, let's go back to the facts of this case.

[00:19:47] Speaker 00:
First, Dr. Barnes is contracted by the nurses and say, this fella has been doing stuff he shouldn't do.

[00:19:57] Speaker 00:
They don't interview the nurses because they say, well, the supervisor wasn't there and we can't interview the nurses if the supervisor isn't there.

[00:20:07] Speaker 00:
They didn't interview Dr. Barnes because I don't know why he didn't have a lawyer with him.

[00:20:15] Speaker 00:
The next thing that happened.

[00:20:17] Speaker 00:
was this call to Dr. Green Cheatwood.

[00:20:23] Speaker 00:
It lasted eight minutes and he denied, said it was fabricated by Dr. Kessler.

[00:20:33] Speaker 00:
The investigators never interviewed Dr. Burns.

[00:20:38] Speaker 00:
It just sounds like they were out to get Dr. Burns because he had put the finger on Dr. Kessler.

[00:20:47] Speaker 00:
for harassing the nurses and that they were covering up like nobody's business.

[00:20:54] Speaker 01:
Well, if I could address that, what you're talking about are two separate investigations.

[00:20:58] Speaker 01:
And I think it's important that we make a clarification here.

[00:21:00] Speaker 00:
Well, wait a minute.

[00:21:01] Speaker 00:
One is dependent on the other.

[00:21:03] Speaker 00:
The Bern Kessler never was taken to where it should have been taken.

[00:21:10] Speaker 00:
But the complaint by Dr. Kessler turned out he's the one that made it.

[00:21:16] Speaker 00:
was haphazardly investigated, but never talking to Dr. Burns.

[00:21:22] Speaker 00:
And the conversation he had with Greenwood did not give any of the underlying facts.

[00:21:30] Speaker 00:
And that's pretty clear from the record.

[00:21:34] Speaker 01:
And what this court said in Riggs was that although allowing Ms.

[00:21:37] Speaker 01:
Riggs to complete her side of the story would seem to be the most fair way of addressing the situation.

[00:21:43] Speaker 00:
Well, the most fair way to do it is to talk to the person that's being accused.

[00:21:47] Speaker 00:
Correct.

[00:21:48] Speaker 01:
Which they didn't do.

[00:21:49] Speaker 01:
And then the court went on to hold, we cannot say that the investigator's failure to do so in these circumstances constitutes a disturbing procedural irregularity.

[00:21:58] Speaker 02:
And that's the standard here.

[00:22:00] Speaker 02:
I think the critical words there are in these circumstances.

[00:22:05] Speaker 02:
Now, there's a difference here in that they not only failed to interview

[00:22:11] Speaker 02:
Dr. Burns, they failed to interview the nurses.

[00:22:14] Speaker 02:
And that distinguishes this from Riggs, among other things.

[00:22:18] Speaker 01:
And here's who they did interview.

[00:22:20] Speaker 02:
They interviewed the chief of medical staff.

[00:22:21] Speaker 02:
They didn't interview the nurses.

[00:22:23] Speaker 02:
They did not interview any nurses.

[00:22:24] Speaker 02:
All right.

[00:22:24] Speaker 02:
And are you saying that as a matter of law that an unreasonable investigation can never be evidence of pretext

[00:22:35] Speaker 01:
No, it can if there are disturbing procedural irregularities.

[00:22:38] Speaker 02:
Well, wasn't there a disturbing procedural irregularity here in that they never interviewed the person that they're going to fire?

[00:22:47] Speaker 02:
Well, based on there's not a policy that requires the interviews, there's no evidence in the record.

[00:22:51] Speaker 02:
It's not a matter of policy.

[00:22:52] Speaker 02:
It's a question of in the circumstances, is this a reasonable investigation or is the investigation so unreasonable that it undermines

[00:23:03] Speaker 02:
the reasons that the employer has given for termination.

[00:23:07] Speaker 01:
Now, I don't think so in this case, because the reasons given for termination, if you look at the interviews that were conducted, Dr. King provided eyewitness testimony of Dr. Burns being 150 miles away from the ICU while on call.

[00:23:20] Speaker 04:
Wait a minute.

[00:23:21] Speaker 04:
So now we're going to switch.

[00:23:24] Speaker 04:
It's no longer about competency of care.

[00:23:26] Speaker 04:
Now we're going to talk about abandonment.

[00:23:28] Speaker 00:
Correct.

[00:23:29] Speaker 04:
All right.

[00:23:29] Speaker 04:
And where is that?

[00:23:32] Speaker 04:
So what about the testimony that he provided that he always had someone cuffed?

[00:23:41] Speaker 04:
That's number one.

[00:23:43] Speaker 04:
The second part of the question is, what about the undisputed testimony that it was reported that he was seen drinking, which turned out to be not true.

[00:23:54] Speaker 04:
He was ordering grinders.

[00:23:56] Speaker 04:
There was no evidence that he was drinking.

[00:23:58] Speaker 04:
So now, if none of that makes its way into the EEOC statement from the hospital, so what about these disturbing inconsistencies by the hospital about this hearsay report that he was 150 miles away drinking?

[00:24:22] Speaker 04:
That just wasn't true.

[00:24:24] Speaker 01:
Well, I'll address.

[00:24:26] Speaker 01:
Each of those, so three points.

[00:24:28] Speaker 01:
One, the 150 miles away that came from an eyewitness observation from Dr. King.

[00:24:32] Speaker 04:
Okay, so you relied on it, but it had to be not true.

[00:24:36] Speaker 01:
Right.

[00:24:36] Speaker 01:
Dr. Byrne saying he always got somebody to have him on call.

[00:24:39] Speaker 01:
That came in the reply after it was raised for the first time, because initially he denied that that ever happened.

[00:24:44] Speaker 01:
So then he says, well, I always had somebody on call.

[00:24:47] Speaker 01:
So what we have is testimony from Dr. King that says that's not how the call service works.

[00:24:51] Speaker 01:
If you're on call and you have somebody else to cover for you, you give the call service that doctor's name.

[00:24:56] Speaker 01:
So when you call the call service,

[00:24:58] Speaker 01:
They will say, oh, this doctor is the one who's on call.

[00:25:02] Speaker 01:
The call service only knew to reach Dr. Burns.

[00:25:04] Speaker 01:
He was 150 miles away.

[00:25:05] Speaker 04:
So in light of this dispute on your motion for summary judgment, we view the evidence favorably to the hospital because Dr. King said this is how it's supposed to work.

[00:25:17] Speaker 04:
And we should credit Dr. King's characterization that he wasn't drinking.

[00:25:25] Speaker 04:
abandoning the patients, but he failed to notify the call center.

[00:25:30] Speaker 04:
All he did was notify the person that was filling in for him.

[00:25:34] Speaker 01:
No, I think your role in this is not to sit as a super personnel department.

[00:25:38] Speaker 01:
Your role is to decide whether the decision makers or the investigators possessed a reasonable good faith basis for believing the information that was provided to them.

[00:25:46] Speaker 00:
Well, didn't they also say that they thought that this had all been investigated before they got into it?

[00:25:53] Speaker 00:
And they made their decision without any further investigation at all, just on the statements that they heard, and they assumed that somebody had done the work of talking to Dr. Byrne.

[00:26:06] Speaker 01:
The decision-maker, Scott Lichtenberger, testified that he assumed- That's right.

[00:26:09] Speaker 00:
That's where you get into the cat's paw theory.

[00:26:11] Speaker 01:
Which is, I think, also a good-

[00:26:15] Speaker 01:
way to go back to the Riggs case.

[00:26:17] Speaker 01:
In the Riggs case, the person who made the decision to terminate also said that it would have been best practice to have interviewed the employee.

[00:26:24] Speaker 01:
But I want to get back.

[00:26:25] Speaker 01:
I didn't answer the next two questions that you asked, Your Honor.

[00:26:29] Speaker 01:
The second one was the issue about drinking.

[00:26:33] Speaker 01:
If I give you the sequence of depositions here, I think it's important.

[00:26:36] Speaker 01:
Peter Sabie, the general counsel, testified on November 3rd.

[00:26:39] Speaker 01:
The corporate deposition was taken on November 6.

[00:26:43] Speaker 01:
In his deposition, Peter Sabie said, what we were concerned with was not whether he was drinking or not drinking.

[00:26:49] Speaker 01:
What we were concerned with was the fact that he was 150 miles away while on call at the ICU.

[00:26:55] Speaker 04:
And not what Dr. King had insinuated, that that's not how it worked.

[00:27:01] Speaker 04:
So the problem with this argument is Dr. Burns is saying,

[00:27:07] Speaker 04:
He did have somebody filling in for him whenever he was ordering these drugs.

[00:27:15] Speaker 01:
Dr. Burns said that in a responsive self-serving declaration where he doesn't even identify the doctor.

[00:27:20] Speaker 01:
So we can verify it.

[00:27:21] Speaker 01:
Doesn't even identify the doctor who was allegedly on call for him.

[00:27:25] Speaker 04:
All affidavits are self-serving.

[00:27:26] Speaker 04:
There's no problem with self-serving affidavits unless they're a sham.

[00:27:29] Speaker 01:
But back to the drinking point.

[00:27:32] Speaker 01:
Dr. King never said that she saw Dr. Burns drinking.

[00:27:36] Speaker 01:
She testified to that effect.

[00:27:37] Speaker 01:
Peter Sabie said Dr. King never said anything that he was drinking.

[00:27:41] Speaker 01:
When Ms.

[00:27:41] Speaker 01:
Eklund testified as the corporate representative, she testified that her entire basis for testifying was based on this topic, was a conversation she had immediately before the deposition with Mr. Sabie.

[00:27:53] Speaker 01:
So it's clear that when she said that he was seen drinking, that was just a misremembering of that testimony.

[00:28:01] Speaker 04:
conversation with general counsel, rather than asking the guy, where are you drinking?

[00:28:08] Speaker 01:
This is after the 2020 hindsight, after the fact.

[00:28:12] Speaker 01:
The question is, did the investigators reasonably believe this to be true?

[00:28:16] Speaker 00:
And those investigators, mind you, would have had... The reason they believed it was true, because they hadn't done their homework.

[00:28:22] Speaker 00:
That's the reason.

[00:28:25] Speaker 01:
If I could.

[00:28:26] Speaker 01:
The reason they believed it true, Judge Kelly, was because that wasn't the only point of evidence that they had that was uncontroverted.

[00:28:32] Speaker 00:
The next one being... The other acts, the peer review committee, that disappeared, and that was originally one of the four areas.

[00:28:43] Speaker 00:
That disappeared because he had not done away with the... But they never talked to him about that.

[00:28:49] Speaker 00:
They found that out on their own.

[00:28:50] Speaker 01:
No, I disagree with, well, I agree with you that they didn't talk to him about that.

[00:28:54] Speaker 00:
Okay.

[00:28:54] Speaker 00:
And then the next thing was his care of patients.

[00:28:58] Speaker 00:
And those, those cases were submitted and they found out he did take care of all the patients and that he did not, not comply with, with the standard of care.

[00:29:14] Speaker 00:
So, but again, they didn't ask him about that.

[00:29:16] Speaker 00:
They found that out later on.

[00:29:19] Speaker 00:
Correct.

[00:29:20] Speaker 00:
So everything they did was without Dr. Byrne.

[00:29:25] Speaker 01:
Subsequently, that is correct.

[00:29:26] Speaker 01:
Dr. Byrne, they knew that Dr. Byrne's position- They didn't have any idea what was going on.

[00:29:30] Speaker 00:
And they hired him earlier for another contract in lieu of doing anything on the alleged malpractice, if you want to call it that.

[00:29:46] Speaker 00:
They investigated that and rehired them and they're bringing that back up again.

[00:29:50] Speaker 01:
Well, if I could, again, two different hats.

[00:29:53] Speaker 01:
You had the local administration, Scott Taylor, the CEO, who received, testified about receiving multiple complaints, including the April 19th, 2019 complaints about Dr. Burns, which reappeared in the KBHA complaint.

[00:30:05] Speaker 01:
The people making the decision, those with Centura here in Denver at the corporate level, never received information about that.

[00:30:12] Speaker 01:
It was never escalated.

[00:30:13] Speaker 01:
So what?

[00:30:14] Speaker 00:
Well, it's important because the training- It's not important if we look back to what they had to rely on and they relied on something that was totally, totally neglected.

[00:30:26] Speaker 00:
I mean, if I go tell the corporate officer, yeah, I saw him drunk driving and he relies on that and doesn't call up and try to investigate himself, that he can't be just excused from

[00:30:43] Speaker 00:
from violating the law.

[00:30:46] Speaker 00:
Oh, I didn't know.

[00:30:47] Speaker 00:
That's what you're arguing.

[00:30:50] Speaker 00:
They didn't know.

[00:30:51] Speaker 01:
No, I'm arguing that they made the decision based on valid information that corroborated the complaints in the KBHA complaint from multiple sources.

[00:31:00] Speaker 01:
Dr. King's testimony, Dr. Arroyo, who trained every surgeon in the state of Kansas that graduated from University of Kansas med school for 32 years.

[00:31:08] Speaker 00:
What's missing?

[00:31:09] Speaker 01:
Well, according to the questions, the subsequent interview with Dr. Burns, but as I've pointed out in RIGS, the failure to do a follow-up interview with Dr. Burns is not fatal, is not proof of pretext, and is not the type of gross deviation from standard operating procedures that would justify a finding of pretext.

[00:31:30] Speaker 01:
Thank you.

[00:31:31] Speaker 01:
Thank you, counsel.

[00:31:40] Speaker 03:
In my short amount of time that I have left, in addition to the fact that the court is obviously very in tune with about Dr. Burns not being asked anything to respond to or provide insight on any of the reasons that they now are relying on for retaliation, the defendants, they conducted the investigation behind his back.

[00:32:03] Speaker 03:
But beyond that, the witnesses that they did interview, when we deposed them,

[00:32:08] Speaker 03:
They testified that we didn't say these things.

[00:32:11] Speaker 03:
So not only did they not get the perspective from Dr. Burns that would have resolved and cleared this up because they were upset with regard to the complaint about Dr. Kessler and the sexual harassment, but the witnesses didn't even tell them

[00:32:29] Speaker 03:
What they then later reported on to the ultimate decision maker, they supposedly had said, and the witnesses, when given the chance to testify, said, we didn't say those things.

[00:32:38] Speaker 03:
And that's cited in the record in our brief.

[00:32:41] Speaker 03:
What's a good example?

[00:32:42] Speaker 03:
One good example would be that Green Sheetwood said that the evidence with regard to patient abandon came from Dr. Dunford.

[00:32:51] Speaker 03:
Dr. Dunford was specifically asked about that in the deposition.

[00:32:55] Speaker 03:
She said that was not true.

[00:32:57] Speaker 03:
Another one would be Dr. King, who Apple East Council talked about.

[00:33:03] Speaker 03:
And well, she saw Dr. Burns 150 miles away, but what Dr. King

[00:33:11] Speaker 03:
said was when she was asked in her deposition, gosh, I didn't really know whether he was on call or not.

[00:33:16] Speaker 03:
I assumed he was, but I don't even know.

[00:33:18] Speaker 03:
That's what she testified that she told the interviewers, Green Sheetwood and Peter Sabey.

[00:33:26] Speaker 03:
And there's other examples where the underlying information that was provided by the witnesses during the so-called investigation doesn't line up with what they later claim that those witnesses supposedly said is heard by the witnesses' own mouths during depositions.

[00:33:45] Speaker 03:
And I believe my time is up.

[00:33:48] Speaker 03:
We would just ask that the case be reversed and summary judgment denied and the case sent to trial.

[00:33:55] Speaker 02:
Thank you, counsel.

[00:33:56] Speaker 02:
Thank you to both of you this morning.

[00:33:59] Speaker 02:
We appreciate the arguments.

[00:34:01] Speaker 02:
The case will be submitted.

[00:34:03] Speaker 02:
Counselors excused.

[00:34:04] Speaker 02:
And the court will stand in recess until tomorrow morning at 9 o'clock.

[00:34:10] Speaker 02:
Thank you.