[00:00:00] Speaker 01:
The last case for this morning is Plum v. Geico.

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Counsel for the appellant can make your appearance and proceed.

[00:00:20] Speaker 00:
May it please the Court.

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My name is Grace Bouchon.

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Ms.

[00:00:23] Speaker 00:
Mallory Schaener and I represent the appellant, Mr. Dion Plum.

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I will discuss the first step of the McDonnell Douglas test, the prima facie case.

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And for time purposes, I'll focus on race discrimination.

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Ms.

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Schaener will address pretext.

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We'd like to reserve two minutes for rebuttal.

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This court should hold that Mr. Plump establishes prima facie case for two reasons.

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First, his position was not eliminated.

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And second, the timing and circumstances of his firing gave rise to an inference of discrimination.

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First, the continued existence of a job satisfies the discriminatory inference under this court's precedent, going back to Perry and Kendrick, but reaffirmed most recently in January in WalkingStick.

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Geico's contention that continued existence of a position cannot satisfy the prima facie case for termination situations is false.

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as this court reestablished in WalkingStick.

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I may have missed it, but I don't recall seeing in the briefing.

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What does the acronym MOAT stand for, M-O-A-T?

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I don't know that off the top of my head.

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It's some form of it's.

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I'll ask Geico.

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Go ahead.

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In WalkingStick, the reason that plaintiff was fired

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was poor job performance and improper timekeeping.

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So just as in this case, even though the reason given was not elimination of the position, the fact the position is still eliminated is enough for the prima facie case.

[00:02:06] Speaker 05:
We got a 28J filing.

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And one of the suggestions is that there's no evidence in the record that the position was not eliminated.

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Is there?

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Geico has never claimed that the position was eliminated.

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And as Monroe and Washington, which we cited in our brief, held, lack of contention that the position was eliminated is enough to assume that it continued to exist after the plaintiff was fired.

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And both of those cases cite a tense circuit case, English versus Colorado Department of Correction.

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which says that if the given reason is anything other than workforce reduction, that is sufficient.

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That's because the purpose of the prima facie case as the Supreme Court held in Burdine... Hold on.

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Getting back to Judge McHugh's question, didn't the district court reference that the job remained open?

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Wasn't that in the opinion?

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I believe the best evidence in the record is that

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Geico said that the Kansas City office was frequently hiring.

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The district court did not look at whether the position remained open, but they rather looked at timing and circumstances.

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OK.

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OK.

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You answered my question.

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Under Burdine, the purpose of the prima facie case is merely to eliminate the two most common legitimate reasons for terminating an employee, which are elimination of the position

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and lack of qualification.

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Here, Mr. Plump established his prima facie case because he was qualified and his position continued to exist.

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Geico argues that because he did not have a New York license that he was not qualified for the position.

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How do you respond to that?

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Mr. Plump was qualified as the district court held for two reasons.

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First, because at the prima facie stage,

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Qualification is a minimum inquiry.

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And as WalkingStick says, the court should look to the basic skills necessary to perform the job.

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Second, as the appellant said in the previous case under EEOC versus Horizon, considering the employer's legitimate nondiscriminatory reason at the prima facie stage,

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would unfairly collapse the first two steps of the McDonnell-Douglas test.

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Are you distinguishing here between whether or not the plaintiff was told that licensure in New York was a qualification or a different thing, and that is it's not listed in the qualifications that are necessary for the job?

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Both are the case here.

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We contend that he was not told, and also it was not.

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You stipulated in 2A IV, Plump was told that having a New York insurance license was important to his role.

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He did not obtain a New York insurance license while he was employed by GEICO.

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He stipulated to that, not you.

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That's the death nail to that issue, isn't it?

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No, Your Honor.

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Mr. Plump stipulated that he knew it was important to have, but not that he knew it was required.

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Well, he also didn't stipulate to whose responsibility it was to obtain it.

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correct, Your Honor, which is one of the issues of fact that indicate this case should not have been resolved on summary judgment.

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And that goes to pretext, as my co-counsel will discuss.

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And as we're talking about stipulations, though, there was also a stipulation that GEICO considers it, meaning New York licensure, a required state license for the mode sales department.

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He stipulated to that.

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So he acknowledged that GEICO believes

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In Geico's view, it's a requirement.

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So I think going off of where Judge Murphy was going, isn't there a distinction between what Geico says is a requirement and what he is told?

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Correct.

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There is a distinction.

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And there's also no stipulation or clear evidence in the record about when it became a bona fide qualification.

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So your suggestion is that this issue isn't

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Related it's not determinative of whether or not a prime efficient case was stated But it is pertinent to the analysis of the pretext issue Exactly your honor, and I would like to reserve the rest of my time for my co-counsel to discuss pretext.

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Thank you

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May it please the court, Mallory Shaner, on behalf of Mr. Plump.

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I guess you know what questions we have on the stipulation.

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Of course.

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In pretext.

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Yes, Your Honor.

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Would you like to ask them or pick up where my co-counsel left off?

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I would like to know why 2A III and 2A IV establish, clearly, no pretext.

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So with regard to those two factual stipulations,

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The party's briefs make clear that this entire case is about the New York license requirement and whether or not Mr. Plump knew that it was a requirement for his job.

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The first pretrial stipulation speaks to, as Judge Holmes said, what GEICO considers and is also written in the present tense.

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There's no clear evidence in the record.

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as to when this requirement went into effect.

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The best evidence we have is beginning in November of 2021, which is 17 months after Mr. Plump had been working at GEICO.

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And then the second stipulation that Plump was told that having a New York license was important to his role just speaks about what Mr. Plump knew, but important doesn't mean the same thing as required.

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Okay, but isn't that the very distinction that your co-counsel made

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That's a good argument as to prime a facey case.

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But it's not so great when we're considering pretext.

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If he was fired because he didn't have a New York license, doesn't this eliminate any pretext there was?

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That's why he was fired.

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And it's important to Geico.

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It's Geico's perspective.

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Sorry for interrupting.

[00:09:18] Speaker 04:
No, Your Honor.

[00:09:19] Speaker 04:
With regard to pretext in this circuit, pretext is not about unquestionably establishing, under the McDonnell Douglas burden framework, it's not about Mr. Plump unquestionably establishing that the New York license was a true requirement that he was told about.

[00:09:36] Speaker 04:
Pretext, which is why these factual disputes are material, pretext goes to whether the employee's evidence

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calling into question the employer's proffered legitimate nondiscriminatory reason for termination could lead a fact finder to find these reasons unworthy of credence.

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So it's about introducing evidence that could call into question Geico's reason.

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And Geico's litigation position is that Mr. Plump was terminated for his failure to obtain a New York license.

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And so here, and this circuit has held in a case Bryant versus Farmer's insurance.

[00:10:13] Speaker 03:
Let me ask you this perspective.

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Isn't perspective important in pretext?

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And that is, the perspective is the perspective of the employer who is stating a reason for the termination.

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That's whose mind we look in, correct?

[00:10:31] Speaker 04:
For pretext, yes.

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We don't look into Mr. Plump's state of mind.

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We look into the employer's state of mind, Geico.

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Did they tell the truth?

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Uh, when they said he was fired because he didn't have a license in New York.

[00:10:48] Speaker 04:
Your honor, there is no documentary evidence in the record about this New York license requirement as within Mr. Plunk's job description.

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We're not skipping a requirement.

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We're saying important.

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It was important.

[00:11:01] Speaker 04:
So again, Mr. Plum's deposition testimony, there is a stipulation, yes, the pretrial stipulation, but Mr. Plum's deposition testimony discusses the fact that all he was told is he needed enough licenses to remain serviceable, which was communicated to him as at least 12 out of the 50 states and at least two of five high volume states.

[00:11:24] Speaker 04:
And he had three from those high volume states, just not New York.

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And I also think what Your Honor is getting to is the idea of

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for pretext looking at the facts as they appear to the person making the decision to terminate, but there is no evidence in the record to show when Ms.

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Beaver is the one who made the decision to terminate, but there's no evidence in the record to indicate when Ms.

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Beaver became aware of this New York license requirement and if she had become aware of this requirement at the same time that they were considering terminating Mr. Plum.

[00:11:58] Speaker 01:
Okay, and let's assume that that's true.

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that she became aware of that license requirement at the time that they were considering terminating Mr. Plumb.

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Let's say, I think it was November 2021.

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Let's say they did that and they decide, okay, well, we're going to dismiss you, Mr. Plumb, for that reason.

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Going to what your colloquy with Judge Murphy, the question becomes, is that, does GEICO really believe that that's why they're dismissing him or not?

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And whether you can show whether there's admissible evidence that would raise the question for the fact finder, genuine dispute, that that was a pretext for discrimination.

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If Geico really believed and has been consistent throughout this litigation that they fired him for not having this New York licensure, which they required, then where is the problem?

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And let me ask one sort of subset below.

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If the issue is he didn't know about it, there's this unknown requirement, well,

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Where do we have cases that say that is relevant to the pretext question?

[00:13:02] Speaker 04:
Your Honor, with regard to that question, the President and the circuit talks about subjective criteria.

[00:13:09] Speaker 04:
Other circuits have called it on mentioned job requirements.

[00:13:12] Speaker 04:
The circuit has just discussed subjective criteria.

[00:13:15] Speaker 01:
And why isn't there a difference between unmentioned, which is other circuits and our circuit is subjective?

[00:13:21] Speaker 01:
That's not a subjective requirement.

[00:13:23] Speaker 01:
GEICO wants a New York licensure.

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Why is that a problem?

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Why don't they have a right as an employer to say that's what we want, even if it's belated?

[00:13:31] Speaker 04:
Since it's about summary judgment, it's about introducing a dispute of fact that a reasonable fact finder could find one way or the other.

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And so here, because there's no written objective documentation of the New York license requirement being communicated to Mr. Plum directly.

[00:13:47] Speaker 01:
Bingo.

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Communicated to him.

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The point is, at the pretext stage, November 2021, they walk in the room.

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Let's assume that the person who's talking to him, I forgot what her name is, at that point,

[00:14:01] Speaker 01:
They look up on the bulletin board and they say, oh, wow, GEICO has a New York licensure requirement.

[00:14:05] Speaker 01:
I didn't even know about it.

[00:14:06] Speaker 01:
I go into the room and I say, well, I'll tell you what, Mr. Plumb, you don't have that and you're fired.

[00:14:10] Speaker 01:
Well, or I'm going to begin firing you then.

[00:14:14] Speaker 01:
Where, as a matter of law for pretext, where's the problem?

[00:14:19] Speaker 01:
If that person really believed that they were implementing GEICO policy and firing that person because they didn't have a New York license,

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If Mr. Plum's only response is, you never mentioned it to me, I acknowledge there are other circuits that may have talked about unmentioned criteria, but we haven't done that.

[00:14:39] Speaker 01:
So if the only response is, you never mentioned it to me, why is that, as a matter of law, sufficient?

[00:14:46] Speaker 04:
As a matter of law, that's sufficient because, again, this is at summary judgment.

[00:14:50] Speaker 04:
and any inference, any factual dispute that could lead to an inference of discrimination should be- Where is the factual dispute?

[00:14:57] Speaker 01:
The point I'm making is, you've acknowledged that somewhere along the line, Geico says, in the present tense, we have this New York requirement.

[00:15:05] Speaker 01:
You also, if I heard you correctly, say that the most recent time it could have been is November 2021, when they're telling him that they have that requirement.

[00:15:13] Speaker 01:
Well, they tell him they have that requirement.

[00:15:16] Speaker 01:
The fact that it's not written down anywhere on the record, if she

[00:15:20] Speaker 01:
The person talking to Mr. Plumb believes they're implementing GEICO policy.

[00:15:25] Speaker 01:
They say November 2021, we have a requirement, you're going to be fired.

[00:15:29] Speaker 01:
Where's the dispute of fact?

[00:15:33] Speaker 04:
May I briefly answer your question?

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I know I'm out of time.

[00:15:37] Speaker 04:
So if the subjective criteria as a way to show pretext doesn't apply here, there's also shifting rationales here.

[00:15:45] Speaker 04:
Miss Beaver, who is Mr. Plump's manager, also discussed in her deposition that she had already been considering terminating Mr. Plump for purported call avoidance.

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And when she found out that he was not actually avoiding calls, then she started to look for whether or not this New York license requirement applied.

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And at the end of the day, this

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GEICO discusses that it was Mr. Plum's failure, and that's an important distinction as well because it was GEICO's licensing team which they conceded that was unable to follow up, and so they missed the appeal deadline for Mr. Plum to appeal his New York license denial.

[00:16:23] Speaker 04:
This court should remand because summary judgment was inappropriate here.

[00:16:26] Speaker 04:
Thank you.

[00:16:27] Speaker 01:
Thank you, counsel.

[00:16:40] Speaker 02:
May it please the court?

[00:16:42] Speaker 02:
Jenna Brodsky, appearing on behalf of GEICO.

[00:16:44] Speaker 01:
What does MOTE mean?

[00:16:47] Speaker 02:
MOTE is an acronym that's not actually defined, and that's in the pretrial order as well, Your Honor.

[00:16:54] Speaker 02:
We looked it up.

[00:16:56] Speaker 01:
Well, but it's not defined by you.

[00:16:58] Speaker 01:
There's nowhere in the record where it says what MOTE means.

[00:17:00] Speaker 01:
Correct.

[00:17:01] Speaker 01:
Correct.

[00:17:03] Speaker 01:
Go ahead, please.

[00:17:04] Speaker 02:
New York State denied Mr. Plum's application for a sales license, which meant that he could not service customers in New York.

[00:17:11] Speaker 02:
Yet he was required to do this as part of his job.

[00:17:13] Speaker 02:
And we know this because he stipulated first that his employer required not just him, but everybody in his department to have this specific license.

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Two, he was told at the time that his license was denied that he could not remain in his position.

[00:17:29] Speaker 01:
And three, he was told... What stipulation are you talking about as it relates to the New York requirement?

[00:17:34] Speaker 01:
If it is the stipulation that GEICO has this requirement in the present tense,

[00:17:40] Speaker 01:
That's not him saying that I knew this requirement existed and that everybody in my department had the requirement.

[00:17:45] Speaker 01:
So what stipulation are you talking about?

[00:17:48] Speaker 02:
Your Honor, I'm referring to the stipulation three where it states New York is the second most frequent state moat sales receives calls from.

[00:17:55] Speaker 02:
So GEICO considers it a required state license for the moat sales department.

[00:17:59] Speaker 02:
And then there's a stipulation 12 where he was told that he couldn't remain in his role without a New York license.

[00:18:10] Speaker 02:
And Mr. Plump was told this undisputedly in November, 2021, he did not apply for FMLA until December, 2021.

[00:18:18] Speaker 02:
There's nothing about these circumstances from which to infer racial animus or retaliatory animus.

[00:18:26] Speaker 05:
Let me ask you about shifting reasons for his termination.

[00:18:31] Speaker 05:
When he got the new supervisor, there was first an attempt to terminate him due to alleged call avoidance.

[00:18:43] Speaker 05:
Then there was, they wanted to fire him for call transfers and then the license issue and then job abandonment.

[00:18:55] Speaker 05:
All of these were discussed.

[00:18:58] Speaker 05:
Isn't that pretty good evidence of shifting reasons for terminating him that might support a pretext argument?

[00:19:06] Speaker 02:
Your Honor, there were no shifting rationales here, and I'm happy to explain the context.

[00:19:10] Speaker 02:
As an initial matter, it is uncontroverted that Ms.

[00:19:12] Speaker 02:
Bieber was the decision-maker here.

[00:19:14] Speaker 02:
Ms.

[00:19:14] Speaker 02:
Selig was the supervisor who didn't have any authority.

[00:19:17] Speaker 02:
Second, Mr. Plumb was... Well, but Ms.

[00:19:19] Speaker 05:
Salles was communicating and giving them reasons for firing him.

[00:19:25] Speaker 05:
And when he tried to apply for the other position, he was denied the position in part because she said that he had a problem with call avoidance.

[00:19:35] Speaker 05:
And if you look at the record, there was one instance of call avoidance.

[00:19:40] Speaker 02:
I'd like to explain that.

[00:19:43] Speaker 02:
Mr. Plump wasn't terminated for call avoidance.

[00:19:45] Speaker 05:
Mr. Plump did have... He was prevented from transferring to a different position because of call avoidance.

[00:19:50] Speaker 02:
Well, I want to be clear that Geico had no responsibility.

[00:19:53] Speaker 02:
This isn't a failure to accommodate situation.

[00:19:55] Speaker 02:
When Geico realized that he didn't have a license, that he had been denied his license on the merits, then it sought to see if there was another place for him, which certainly doesn't show any... Well, but we have a supervisor who basically sabotages his ability to transfer to another position

[00:20:13] Speaker 05:
by saying she has serious concerns about call avoidance.

[00:20:18] Speaker 05:
And when you look at the record, there is one instance of call avoidance.

[00:20:22] Speaker 05:
Doesn't that give you some evidence to suggest that perhaps he was a target of some animus?

[00:20:30] Speaker 02:
I don't believe it does.

[00:20:31] Speaker 02:
Again, Your Honor, that wasn't the decision-maker.

[00:20:33] Speaker 02:
There is more evidence than one time of call avoidance.

[00:20:37] Speaker 02:
And at the end of the day, Your Honor, the requirement is undisputed that New York was a required license.

[00:20:43] Speaker 02:
Geico has articulated that.

[00:20:45] Speaker 02:
And again, from the vantage point of the employer, it was an honest belief that he didn't have this license.

[00:20:50] Speaker 02:
And it's undisputed.

[00:20:51] Speaker 05:
Whose responsibility, once a sales representative was hired and they took the licensing exam and they passed, who at Geico had the responsibility to obtain

[00:21:05] Speaker 05:
individual state licenses.

[00:21:07] Speaker 02:
And I think that there's a difference between obtaining the license and having a license denied.

[00:21:12] Speaker 02:
There's no dispute.

[00:21:14] Speaker 05:
Answer my question before you go off on another tangent.

[00:21:17] Speaker 02:
Apologies, Your Honor.

[00:21:19] Speaker 02:
There's no dispute that it was applied for in tandem between appellant and the licensing department.

[00:21:25] Speaker 05:
It was the licensing department.

[00:21:26] Speaker 05:
And there's evidence in the record where Mr. Plump's supervisors are instructing him

[00:21:34] Speaker 05:
not to be involved.

[00:21:36] Speaker 05:
Don't do this.

[00:21:38] Speaker 05:
Don't get off the phones.

[00:21:40] Speaker 05:
This should be handled by the licensing department.

[00:21:43] Speaker 05:
Don't be involved.

[00:21:45] Speaker 05:
And in fact, in some of those emails, it actually tells the licensing department, or they say, Dion should not be involved in this.

[00:21:55] Speaker 02:
And I believe the part of the record you're referring to was months and months after Mr. Plump did not respond to direct correspondence from New York State

[00:22:03] Speaker 02:
that was sent only to him regarding missing materials from his application.

[00:22:08] Speaker 05:
You're not answering my question.

[00:22:09] Speaker 05:
He was told not to be involved in obtaining these licenses and that the licensing department would handle it.

[00:22:18] Speaker 02:
There's not a situation where he was told not to be involved in his New York license.

[00:22:24] Speaker 02:
I believe there's evidence later on regarding a Louisiana license, but the denial of his license was something that he is responsible for.

[00:22:32] Speaker 02:
because he received those letters from the state and he failed to respond to them.

[00:22:37] Speaker 02:
Geico has articulated a legitimate nondiscriminatory reason for termination.

[00:22:41] Speaker 02:
An appellant hasn't met his high burden to show by a preponderance of the evidence that termination for failure to have a license was somehow a cover-up for racial discrimination or for protected activity that had not yet occurred when he was told he needed the license.

[00:22:56] Speaker 02:
This court should affirm the district court's grant of summary judgment for Geico.

[00:23:01] Speaker 02:
I'd like to explain that there's no factual dispute here, because those disputes are precluded by his stipulations at the district court level, where he was represented by counsel.

[00:23:12] Speaker 03:
Are you finally to the point that you're going to concede that this is a pretext case, not a prima facie case?

[00:23:20] Speaker 02:
We're not going to concede that, but we do understand that the court can decide.

[00:23:24] Speaker 03:
How do you deal with Kendrick?

[00:23:26] Speaker 03:
And it's progeny.

[00:23:28] Speaker 03:
And that is, you have to show that the position was closed.

[00:23:32] Speaker 02:
Your Honor, the Tenth Circuit has allowed flexibility in the articulation of the tests.

[00:23:37] Speaker 02:
But at the end of the day, the purpose is to show whether the adverse action occurred under circumstances giving rise to an inference of discrimination.

[00:23:45] Speaker 03:
And there's- The prima facie case requires qualification, and the position remained open.

[00:23:54] Speaker 03:
And, Your Honor, I think that-

[00:23:56] Speaker 03:
part of that puzzle am I missing?

[00:23:58] Speaker 02:
Well, I think that test is one way to show based on the circumstances.

[00:24:02] Speaker 02:
I think when the 10th Circuit has applied different iterations, it has expressly said it depends on the circumstances.

[00:24:07] Speaker 05:
Well, that's in plot key, right?

[00:24:09] Speaker 02:
That is in plot key.

[00:24:10] Speaker 05:
And in that case, the position was eliminated.

[00:24:16] Speaker 05:
So you couldn't use the test that Judge Murphy just articulated.

[00:24:21] Speaker 05:
And what we said was, you know what, there may be circumstances even where the position is eliminated that there are enough facts in the totality of the circumstances that they can meet the prima facie burden.

[00:24:37] Speaker 05:
But nowhere, and in fact in Walking Stick Dixon, we just made it very clear that if you can show those three things, protected, class, you were terminated,

[00:24:51] Speaker 05:
the position remains open, you've made a prima facie case.

[00:24:55] Speaker 02:
And I'd agree with that, that that was the test applied in WalkingStick, certainly.

[00:24:59] Speaker 02:
And in that case, she was replaced.

[00:25:01] Speaker 02:
And in our situation, there's just no facts as to what happened to the position.

[00:25:04] Speaker 01:
The best that... I thought you conceded that.

[00:25:08] Speaker 01:
I mean, on page 2418 of the response brief, you conceded as much.

[00:25:15] Speaker 02:
I don't believe that was the intention of that sentence.

[00:25:17] Speaker 02:
That sentence was distinguishing, I think, between a reduction in force.

[00:25:21] Speaker 02:
There's nothing in the record.

[00:25:22] Speaker 02:
There's no evidence to show what happened to the position.

[00:25:26] Speaker 01:
Well, if counsel makes a representation that the position was not filled, then why isn't that sufficient?

[00:25:33] Speaker 02:
And that is certainly not the intention of any representation in the briefing.

[00:25:37] Speaker 02:
Should the court decide that it wants to decide this case and affirm on the second and third prongs, we certainly

[00:25:43] Speaker 02:
understand that, because at the end of the day, what this is about is deciding if, from the vantage point of the employer, there was an honest belief that an employee didn't have something required for his job.

[00:25:54] Speaker 02:
And it is stipulated that he had to have a New York license.

[00:25:57] Speaker 02:
And this beaver's testimony and documents in real time state that he was terminated for failure to have a license.

[00:26:03] Speaker 02:
And he was told this, again, before he ever applied for any FMLA leave, before he engaged in protected activity.

[00:26:09] Speaker 01:
Well, going back to the line of questioning

[00:26:12] Speaker 01:
Murphy started, if we're talking about whether the position was not eliminated under the prima facie case, let's assume the record is silent.

[00:26:21] Speaker 01:
That doesn't work to your benefit, does it?

[00:26:23] Speaker 01:
I mean, under the case law, that cuts against you.

[00:26:25] Speaker 02:
If the court chooses to use that test, then we'll move on to the second and third prongs of it.

[00:26:31] Speaker 01:
It's our test.

[00:26:32] Speaker 01:
I mean, I assume we're going to follow it.

[00:26:33] Speaker 02:
Well, it wasn't applied.

[00:26:34] Speaker 02:
It hasn't certainly been applied in every case in which there's- No, but they chose to use it here to derive an inference.

[00:26:40] Speaker 01:
of discrimination, right?

[00:26:42] Speaker 02:
Appellants are seeking that test.

[00:26:44] Speaker 02:
And again, I don't believe there's any factual support for it.

[00:26:46] Speaker 02:
And I think it differs from the purpose of the prima facie case.

[00:26:48] Speaker 01:
I guess I wasn't clear on what I was getting at.

[00:26:51] Speaker 01:
Let's assume for the moment that you can use the test.

[00:26:54] Speaker 01:
Then the factual issue of whether the position was eliminated or not, let's assume that what I had construed to be a concession in the brief is not that.

[00:27:06] Speaker 01:
then the record is silent as to whether the position was eliminated or not.

[00:27:10] Speaker 01:
As a matter of law, that cuts against you, right?

[00:27:14] Speaker 02:
I'm not sure that's true because the burden's on the plaintiff to meet a prima facie case and they can't rely on that.

[00:27:19] Speaker 01:
Well, they've asserted the position was not eliminated.

[00:27:22] Speaker 02:
And that's certainly based on a statement about generally the Kansas City office, not his position frequently hiring that doesn't answer the question of what happened to his position.

[00:27:31] Speaker 02:
Now, if this court wants... Is his position unique?

[00:27:36] Speaker 05:
They're all sales representatives working the phones.

[00:27:40] Speaker 02:
And I'm not sure that's relevant to the analysis, Your Honor.

[00:27:44] Speaker 05:
Well, it is relevant to the analysis if your argument is that the position was eliminated.

[00:27:49] Speaker 02:
And that's not the argument, Your Honor.

[00:27:52] Speaker 02:
The argument is that the right test to use in a situation where we're not talking about position elimination, this is not a situation like in WalkingStick where the notes said reduction in force is one of the reasons why we're going to terminate.

[00:28:04] Speaker 02:
If Geico had said that and then changed course, that would be a different story.

[00:28:08] Speaker 02:
Here we're talking about somebody's race, which has not changed since day one, and whether there's any kind of inference of racial discrimination in the record.

[00:28:17] Speaker 02:
There's no comments made.

[00:28:19] Speaker 05:
But what we're trying to say is that to set up a prima facie case, we don't require that they show an inference of racial discrimination.

[00:28:29] Speaker 05:
All they have to show

[00:28:31] Speaker 05:
is that they're a member of a protected class, they've been terminated, and the position has not been eliminated.

[00:28:40] Speaker 05:
Then you move to the second step.

[00:28:44] Speaker 02:
And I'm happy to move to the second and third steps of the analyses here, because GEICO has articulated, again, that legitimate nondiscriminatory reason.

[00:28:51] Speaker 02:
And this court's role is certainly not to sit as a super personnel department weighing in on the business judgment of the employer.

[00:29:01] Speaker 02:
To go back to the stipulations in this case, the requirement to have a New York license applied to everybody.

[00:29:07] Speaker 02:
And no other sales agent in the department lacked a New York license.

[00:29:11] Speaker 02:
There's testimony from Ms.

[00:29:12] Speaker 02:
Beaver about that.

[00:29:14] Speaker 02:
It was stipulated that New York was the second highest call volume state.

[00:29:18] Speaker 02:
It was stipulated Mr. Plump was told he couldn't remain in his role in November.

[00:29:22] Speaker 02:
And that was reiterated.

[00:29:23] Speaker 02:
The exact same reason was told to him in February 2021 when he was told he was being terminated

[00:29:29] Speaker 02:
for denial of his New York license.

[00:29:31] Speaker 02:
I'll direct the court to the record on appeal 288, which is an email from his manager, who, it's not disputed, was the one with authority to terminate him, expressly referencing his failure to obtain a New York license and referencing prior communications with him.

[00:29:46] Speaker 02:
The district court cited a case that I think is applicable, the Thomas versus Avis Frenticar case.

[00:29:51] Speaker 02:
And in that case, the employee admitted that he violated company policy.

[00:29:55] Speaker 02:
It was a lost and found policy turning in

[00:29:59] Speaker 02:
lost materials immediately, and the court found that because he admitted that he had done so, there was no dispute that the reason for the termination was true, and his speculation of discrimination was not enough to carry his burden on pretext.

[00:30:13] Speaker 02:
Here, the plaintiff admits that he was denied a license to sell insurance that was required for his job.

[00:30:19] Speaker 02:
Geico required it, and that is stipulated.

[00:30:21] Speaker 02:
He has not met his burden to show that discharging him for this reason was a cover for race discrimination or, again,

[00:30:28] Speaker 02:
for filing for leave after he was told that he couldn't stay in his role for this reason.

[00:30:33] Speaker 02:
This is distinguishable from any temporal proximity cases because, again, he was told the reason before he ever applied for FMLA.

[00:30:42] Speaker 01:
OK.

[00:30:44] Speaker 01:
What do you deem to be the adverse action here?

[00:30:48] Speaker 02:
The communication to Mr. Plump that he was ineligible to stay in his role?

[00:30:52] Speaker 01:
The district court did not make that the adverse action.

[00:30:55] Speaker 01:
It made it the termination.

[00:30:57] Speaker 01:
And I don't see where you have contested that decision.

[00:31:00] Speaker 02:
And the termination itself is the adverse, is the ultimate adverse action.

[00:31:05] Speaker 01:
Well, that's not what you initially said.

[00:31:06] Speaker 01:
The adverse action, that affects the timing of this, right?

[00:31:11] Speaker 01:
Of any claimed retaliation of when the adverse action was.

[00:31:15] Speaker 02:
And this is not in the briefing, but I guess in the statute of limitations context, Your Honor, courts look at when the termination decision was communicated.

[00:31:23] Speaker 01:
I don't think that gets at my point.

[00:31:24] Speaker 01:
My point is the district court had a certain timeline in determining when there would have been a causation effect for retaliation.

[00:31:32] Speaker 01:
That timeline set the adverse action as being when he was terminated, not when they consider terminating him, when they terminated him.

[00:31:40] Speaker 01:
And as far as I know, there was no challenge to that in the briefing.

[00:31:44] Speaker 02:
I'm out of time.

[00:31:44] Speaker 02:
May I continue?

[00:31:45] Speaker 02:
Oh, please do.

[00:31:47] Speaker 02:
That's correct that the adverse action took place in February.

[00:31:50] Speaker 02:
I'm not sure how it can be pretext to tell somebody the reason for termination before the person has engaged in any protected activity.

[00:31:58] Speaker 02:
That would be irrelevant.

[00:31:59] Speaker 01:
Well, the termination occurred after the protected activity.

[00:32:04] Speaker 02:
That's correct.

[00:32:05] Speaker 02:
It's for the same reason he was told before.

[00:32:10] Speaker 01:
If the point is,

[00:32:12] Speaker 01:
is adverse action taken against you because of protected activity, it is a distinction with the difference whether the adverse action is the contemplation of termination or the actual termination, right?

[00:32:26] Speaker 02:
I agree that those are two separate things.

[00:32:28] Speaker 01:
They are two separate things.

[00:32:29] Speaker 01:
And the court chose the latter, the termination.

[00:32:32] Speaker 01:
And therefore, that has an impact on the timing of when you can view the action for the protected activity to have taken place, the adverse action.

[00:32:42] Speaker 01:
as it relates to the protected activity.

[00:32:43] Speaker 02:
And that might get us beyond the prima facie case, but it certainly doesn't meet plaintiff's high burden to show, again, by a preponderance of the evidence that this was pretext because he was told this reason before he ever applied for FMLA.

[00:32:56] Speaker 01:
Let me understand one thing about pretext.

[00:33:01] Speaker 01:
There are retaliation claims and there's the racial discrimination claim.

[00:33:05] Speaker 01:
As I understood from the briefing

[00:33:07] Speaker 01:
The issue was that the pretext arguments, the rubric for pretext, would be the same for all three claims.

[00:33:16] Speaker 01:
I understood the parties to do that on the other side, and you to do that as well, right?

[00:33:20] Speaker 01:
So the implication of that is, is it not, that if you win, let's assume, if you win on the pretext arguments for retaliation, you should also win

[00:33:33] Speaker 01:
as to the racial discrimination claim on pretext.

[00:33:35] Speaker 01:
Is that your understanding?

[00:33:36] Speaker 02:
That's correct, John.

[00:33:37] Speaker 01:
Okay.

[00:33:40] Speaker 01:
It's the red light's on.

[00:33:43] Speaker 02:
Thank you.

[00:33:44] Speaker 02:
Thank you for your time.

[00:33:46] Speaker 01:
Thank you.

[00:33:47] Speaker 01:
I think you are out.

[00:33:50] Speaker 01:
I'm talking to the appellant.

[00:33:52] Speaker 01:
I think you're out of time.

[00:33:55] Speaker 01:
I want to ask you a question, so you will have 30 seconds.

[00:34:01] Speaker 01:
And that 30 seconds goes to exactly the question I asked the opposing counsel.

[00:34:06] Speaker 01:
Is it your understanding that if you were to lose, just assuming, you were to lose on the pretext claims regarding retaliation, you also lose on pretext as it relates to racial discrimination, right?

[00:34:22] Speaker 01:
That's not our understanding because... Your arguments were joined on pretext as it relates to all three claims, was it not?

[00:34:30] Speaker 04:
Yes, but the race discrimination pretext evidence begins before the FMLA retaliation evidence.

[00:34:37] Speaker 01:
Okay.

[00:34:38] Speaker 01:
All right.

[00:34:39] Speaker 01:
Thank you for your position.

[00:34:40] Speaker 04:
Thank you, your honor.

[00:34:43] Speaker 01:
Cases are submitted and the court is in recess until 9 a.m.

[00:34:47] Speaker 01:
tomorrow.

[00:34:48] Speaker 01:
Thank you, counsel, for your fine arguments.