[00:00:00] Speaker 04:
Case number 15-7027, Candace Miles, appellant versus Howard University.

[00:00:07] Speaker 04:
Mr. Woodfield for the appellant.

[00:00:31] Speaker 00:
May it please the court, Nicholas Woodfield, on behalf of the appellant, Candice Miles.

[00:00:36] Speaker 00:
In the district court's opinion below, it does not apparently credit the facts submitted by Ms.

[00:00:42] Speaker 00:
Miles on pages two through six of her summary judgment opposition, which is located at JA 677 to 681.

[00:00:50] Speaker 00:
The same facts are set forth virtually verbatim on pages two through nine of the appellant's opening brief.

[00:00:58] Speaker 00:
Rather, in its memorandum of opinion, the district court apparently relied on the statement of facts, the statement of facts not in dispute, offered by the defendant, of which there were 144 submitted in total, plaintiffs admitted to 84 of them, and the court cited those as the basis for its findings.

[00:01:21] Speaker 00:
the plaintiff below Ms.

[00:01:24] Speaker 00:
Miles, the appellant here, contested 60 of them, but also proffered substantial evidence in support of her own case, and the court could not consider those facts, including the facts going to the issues of control by Howard, including Charlie Mahone, then the dean of UDC School of Business Administration, testifying that

[00:01:47] Speaker 00:
Once the lead center recommended Miles, UDC was, quote, not free to object to her appointment as the center director.

[00:01:55] Speaker 00:
And that's at 797.

[00:01:57] Speaker 04:
Can I ask a question about your legal theory?

[00:01:59] Speaker 04:
I just want to make sure I've got your legal theory here correct, or the law and the facts together.

[00:02:07] Speaker 04:
And that is, your view is that all the concerns about deficiencies and whatnot didn't matter.

[00:02:14] Speaker 04:
It's when she took leave.

[00:02:16] Speaker 04:
that everything changed and that was the cause of her discharge.

[00:02:22] Speaker 00:
That is correct.

[00:02:24] Speaker 04:
Everything else, everything was the same before, they had problems before and after, and that was the one factor that made the difference here.

[00:02:32] Speaker 00:
Well, yes, and the standard, being a buffer standard, would be the straw that broke the camel's back effectively.

[00:02:41] Speaker 00:
And the historical record of these

[00:02:45] Speaker 00:
the small business centers was unacceptable to Howard for years.

[00:02:51] Speaker 00:
It was unacceptable to the small business administration for years.

[00:02:54] Speaker 00:
And it is admitted that UDC's was marginally lower than the next lowest performing.

[00:03:04] Speaker 00:
However, that was not an issue.

[00:03:06] Speaker 00:
And as evidenced in the correspondence issued by Mr. Brown,

[00:03:12] Speaker 00:
which was the court contemporaneous correspondence, not the testimony after the fact, but the contemporaneous correspondence, you have an email sent on March 14, 2011, where he already knew that the Small Business Administration

[00:03:27] Speaker 00:
wanted a remediation plan, was unhappy with the performance of all of the small business centers, and he was going around to each one of them successively saying, we need to come up with a plan to improve our performance.

[00:03:38] Speaker 04:
Right, so I guess your view is that this isn't a mixed motive case.

[00:03:42] Speaker 04:
It's that you can't have the taking of leave under the FMLA be the straw that breaks the camel's back.

[00:03:48] Speaker 04:
It cannot be the factor that becomes the decision-making factor.

[00:03:51] Speaker 00:
Yes.

[00:03:53] Speaker 00:
And in the email, which is a JA-682, Mr. Brown said, so how long are you going to be out on FMLA?

[00:04:00] Speaker 00:
Do you take it, and I'm trying to remember exactly the facts, but he said, does UDC allow you six weeks, eight weeks?

[00:04:07] Speaker 00:
What's the issue in which he acknowledged his lack of familiarity with the FMLA being a law in the DC FMLA, which allows you up to 16 weeks of leave?

[00:04:20] Speaker 00:
On April 7th,

[00:04:23] Speaker 00:
That is when he came forward and accused.

[00:04:26] Speaker 03:
What was the page that you said that is?

[00:04:28] Speaker 00:
The email is at 682.

[00:04:30] Speaker 00:
Jay 682.

[00:04:39] Speaker 04:
I think I have that on 682.

[00:04:43] Speaker 00:
Forgive me.

[00:04:44] Speaker 00:
Hold on a second.

[00:04:51] Speaker 00:
862, I've juxtaposed, I apologize, 862.

[00:04:54] Speaker 04:
All right, thank you.

[00:05:01] Speaker 00:
Which is where Mr. Brown had written to Candace Miles, and he said, with regard to your leave, I have two questions.

[00:05:07] Speaker 00:
What is UDC's FMLA policy?

[00:05:09] Speaker 00:
Is it 60 or 90 days?

[00:05:12] Speaker 00:
My second question is about your clients.

[00:05:13] Speaker 00:
What accommodations have you made to continue servicing your clients while you are on leave?

[00:05:18] Speaker 00:
and you provide a brief response.

[00:05:19] Speaker 00:
There is no suggestion there that he's thinking, we need to get rid of Ms.

[00:05:24] Speaker 00:
Miles for performances inadequate.

[00:05:27] Speaker 00:
When you go to the next letter, which is the April 7, 2011 letter, which is JA 866, on the second page at 867, the third bullet point down,

[00:05:42] Speaker 00:
Mr. Brown criticizing the UDC program starts by noting the service center director is currently on maternity leave.

[00:05:49] Speaker 00:
She took leave without prior notification to the executive director.

[00:05:53] Speaker 00:
Now, Ms.

[00:05:56] Speaker 00:
Miles

[00:05:57] Speaker 00:
was sent off on maternity leave early because of a risk to her carriage of her child.

[00:06:03] Speaker 00:
She was not expecting to take maternity leave at the time she had to start.

[00:06:08] Speaker 00:
It said she failed to make any meaningful provision of the continuation of client services at the UDEC service center and we have proffered evidence to the contrary in our evidentiary submission.

[00:06:18] Speaker 00:
Moreover, the service center failed to communicate to the executive director a specific date and time for returning to her.

[00:06:24] Speaker 00:
The center director has essentially abandoned the service center and its clients by her failure to take the necessary and proper steps.

[00:06:32] Speaker 00:
to assure a viable operation of the service center.

[00:06:36] Speaker 04:
That doesn't sound like the leave is a problem.

[00:06:39] Speaker 04:
That sounds like her failure to have made any plans for being out was the problem.

[00:06:44] Speaker 04:
FMLA doesn't protect you from that, does it?

[00:06:46] Speaker 00:
Your Honor, we have

[00:06:49] Speaker 00:
submitted that she did make adequate plans.

[00:06:51] Speaker 00:
She had planned to have the other service centers service their clients, such as the other service centers had always done in the absence of their directors.

[00:07:00] Speaker 04:
Had she given notice to anybody at these other service centers that they were going to have to pick up for her?

[00:07:05] Speaker 00:
Yes, Your Honor.

[00:07:07] Speaker 04:
Where's that in the record?

[00:07:08] Speaker 04:
The she admitted that she was supposed to submit a plan, but it happened.

[00:07:12] Speaker 00:
She had the plan.

[00:07:14] Speaker 00:
Mr Hague had also mentioned that in his declaration, and I will find that for a court.

[00:07:21] Speaker 04:
If it's going to take long now, you can just do it on rebuttal.

[00:07:25] Speaker 00:
But I would point and looking at this and trying to figure out what happened here because

[00:07:33] Speaker 00:
district court's opinion in trying to figure out why there's such a dearth of facts relating to Ms.

[00:07:40] Speaker 00:
Miles' case in chief, essentially her factual proffer.

[00:07:45] Speaker 00:
And I noted that in his opinion, in the district court's opinion below, he relied virtually entirely on the facts that Ms.

[00:07:57] Speaker 00:
Ms.

[00:07:57] Speaker 00:
Miles admitted, in his opinion, is the factual basis for finding that there was no control exercised by Howard.

[00:08:05] Speaker 00:
He relied on the fact that she admitted of the proffered factual submission by Howard.

[00:08:12] Speaker 00:
Again, as I noted, she admitted about 84 of the 144.

[00:08:19] Speaker 00:
And he made his decision based on that.

[00:08:21] Speaker 00:
Now, she made an entirely substantial factual proper separate and apart from what she acknowledged of their facts, of Howard's facts.

[00:08:29] Speaker 00:
And those facts are not set forth in the opinion.

[00:08:32] Speaker 00:
And I would submit that that, under the Tollin v. Cotton decision, is error because effectively what happened?

[00:08:38] Speaker 04:
What is the most important fact or facts that she proffered that the district court overlooked?

[00:08:44] Speaker 00:
I would submit that they are found in the

[00:08:47] Speaker 00:
the district court brief in the brief below, um, at pages two through six of her summary judgment opposition at 677 to 681, but including

[00:08:58] Speaker 00:
The dean of the business school saying UDC was not free to object to her appointment as the center director.

[00:09:04] Speaker 00:
The fact that Miles reported directly to the executive director of the Leeds Center.

[00:09:10] Speaker 04:
These are on the joint employer issue?

[00:09:11] Speaker 04:
Yes ma'am.

[00:09:12] Speaker 04:
What is your key fact on the question of failure to rebut failure to create a summary judgment level disputed fact as to whether or not there was pretext on the part of

[00:09:27] Speaker 00:
Howard.

[00:09:29] Speaker 00:
Because Howard did not mention terminating Ms.

[00:09:34] Speaker 00:
Miles well into, until April, until she was about six weeks into her infamility leave, and that is found at JA876, May 11th, 2011.

[00:09:49] Speaker 00:
And at that point, it became the issue that

[00:09:56] Speaker 00:
It's 76.

[00:09:58] Speaker 00:
At that point, Howard, who had previously said in the letter as of April 11, said you may want to think about getting a new director.

[00:10:09] Speaker 00:
When Mr. Dean Mahone came forward and said we're not going to replace her because we believe that would be illegal to fire her because she's on FMLA leave, that was what his response was, Howard came back in response and said you are either going to hire a new director

[00:10:25] Speaker 00:
or we're going to cut off the program.

[00:10:27] Speaker 00:
And that is found at 877.

[00:10:29] Speaker 00:
where he said that UDC's failure to provide a meaningful and concrete recovery plan detailing how the UDC SBDC Center will be brought into compliance with your contracted agreement with Howard University is called a default.

[00:10:42] Speaker 00:
And then in bold it says, this will trigger termination procedures in 30 days unless you agree in writing in seven days from the date of this letter to the following non-negotiable conditions.

[00:10:52] Speaker 04:
Doesn't that letter show that it wasn't because she was on leave, it was a failure to have a recovery plan?

[00:10:58] Speaker 04:
that was what was causing them to want these changes?

[00:11:01] Speaker 00:
Well, the recovery plan is separate and apart from the reason that Howard would proffer before for why Ms.

[00:11:10] Speaker 00:
what Mr. Brown was saying before.

[00:11:12] Speaker 00:
Mr. Brown was saying that she didn't give adequate notice as to how the cases were going to be referred to each other.

[00:11:19] Speaker 00:
Here, Mr. Brown is saying that because UDC did not agree to terminate Ms.

[00:11:28] Speaker 00:
Ms.

[00:11:30] Speaker 00:
Miles as part of the recovery plan, he did not believe it was adequate.

[00:11:34] Speaker 00:
And then he leads off with seven factors that he articulates specifically.

[00:11:38] Speaker 00:
The first one being provide appropriate new leadership for the center within 60, and then he says in apparent medical 30 days, subject to the lead center's approval, restructure the lead center.

[00:11:50] Speaker 00:
And then on the fifth one, it says the new center director will submit to the lead center a proper recovery plan and marketing plan within one month.

[00:11:56] Speaker 00:
The problem is, if you look at the contemporaneous correspondence, you look at J866 juxtaposed with 877, he starts off by accusing Ms., on April 7th, accusing Ms.

[00:12:11] Speaker 00:
Miles of abandoning the post by not giving adequate warning, and then here he's saying that if you don't terminate her,

[00:12:21] Speaker 00:
we are going to get rid of the program.

[00:12:23] Speaker 00:
Now, he didn't say we're going to get rid of the program because of bad performance.

[00:12:27] Speaker 00:
He said, you need to terminate her and we will continue the program.

[00:12:31] Speaker 00:
And so it became an issue of getting rid of Ms.

[00:12:33] Speaker 00:
Miles at that point.

[00:12:34] Speaker 00:
And the one thing that I would submit is that documents can be read two ways.

[00:12:38] Speaker 00:
The fact that this can be construed in favor of Howard's explanation does not mean that it should be because the facts at this stage should be construed in both ways.

[00:12:46] Speaker 00:
And here he has accused Ms.

[00:12:50] Speaker 00:
Ms.

[00:12:50] Speaker 00:
Miles of abandoning the service center by taking FMLA leave because she was sent to maternity leave by her physician.

[00:12:59] Speaker 00:
All right.

[00:13:01] Speaker 04:
I'm sorry, did you have another point you wanted to make?

[00:13:03] Speaker 04:
Otherwise, we'll hear from Howard.

[00:13:04] Speaker 04:
We'll give you some time on rebuttal.

[00:13:06] Speaker 00:
Thank you.

[00:13:07] Speaker 01:
OK.

[00:13:14] Speaker 01:
May it please the court, Dan Previs for Pelley Howard University.

[00:13:20] Speaker 01:
The decision below should be affirmed.

[00:13:22] Speaker 01:
There were no disputed genuine issues of material fact.

[00:13:27] Speaker 01:
The court below reviewed the abundant number of undisputed facts, 84 paragraphs undisputed, and considered all the evidence proffered by the appellant Ms.

[00:13:44] Speaker 01:
Spiles in her brief.

[00:13:45] Speaker 01:
And the court's decision below addresses the key factors that my colleague here has addressed and addressed them satisfactorily and demonstrated why they do not present a material issue of fact.

[00:14:04] Speaker 01:
It's simply inaccurate what you've been told, that everything changed once Ms.

[00:14:10] Speaker 01:
Miles went out on FMLA.

[00:14:13] Speaker 01:
And the record is very clear, and these facts are undisputed.

[00:14:18] Speaker 01:
A year earlier, in December 2009, when the UDC service center was

[00:14:25] Speaker 01:
unproductive there was consideration given to closing that center.

[00:14:31] Speaker 01:
Later in 2010, the accrediting agency told Howard University that the UDC service center was especially problematic.

[00:14:41] Speaker 01:
There are undisputed facts, and there are numbers 81 and 82, that managers at the Howard Lead Center found fault with Ms.

[00:14:54] Speaker 01:
Miles's performance.

[00:14:56] Speaker 04:
Even UDC's... Well, what is your answer to their argument?

[00:14:59] Speaker 04:
You can look at that story one of two ways.

[00:15:02] Speaker 04:
One is enough time came, and enough is enough.

[00:15:05] Speaker 04:
Now the SVA's breathing down our neck.

[00:15:07] Speaker 04:
We're going to lose these whole things.

[00:15:10] Speaker 04:
We've got to clean house.

[00:15:12] Speaker 04:
We have to start all over again.

[00:15:14] Speaker 04:
The other way to look at it is nobody was doing anything.

[00:15:19] Speaker 04:
No one seemed to care until she went on leave.

[00:15:20] Speaker 04:
And then you do have some uncomfortable statements in the record about, well, no one else had taken maternity leave.

[00:15:28] Speaker 01:
Well, it wasn't when she went on leave that things started to happen.

[00:15:31] Speaker 01:
It was back in December 2010 before she had told anyone she was going on leave.

[00:15:37] Speaker 01:
I mean, let's face it.

[00:15:38] Speaker 01:
There were two trains here.

[00:15:40] Speaker 01:
going on parallel tracks.

[00:15:42] Speaker 01:
And the one train was at this center that this whole network was going to be shut down completely.

[00:15:48] Speaker 01:
And that had nothing to do with Ms.

[00:15:51] Speaker 01:
Miles' leave.

[00:15:52] Speaker 01:
And that train was on a roll.

[00:15:55] Speaker 01:
There was a tremendous momentum there.

[00:15:58] Speaker 01:
A new director came in at Howard to try to turn things around.

[00:16:02] Speaker 01:
What does he find?

[00:16:04] Speaker 01:
The whole network's in disarray, and the worst performing center is UDC, and it's been worst performing for two years.

[00:16:14] Speaker 01:
There's no one there counseling clients.

[00:16:20] Speaker 01:
The SBA comes in in February, and this is before Ms.

[00:16:25] Speaker 01:
Miles goes out on leave and says, you've got to take some drastic action.

[00:16:31] Speaker 01:
You've got to restructure your operations.

[00:16:34] Speaker 01:
So the new director comes in.

[00:16:37] Speaker 01:
He sees that UDC is the worst performing center, and he takes action.

[00:16:43] Speaker 01:
And he observes that there is not continuity, that that center is sitting there empty with being financed by $100,000 in federal taxpayer dollars, doing nothing.

[00:16:56] Speaker 01:
Now, the question here is, we have to apply the Brady's standard.

[00:17:01] Speaker 01:
Howard presented a legitimate business reason for its actions.

[00:17:06] Speaker 01:
That's undisputed.

[00:17:08] Speaker 01:
Howard had a reasonable basis for that belief.

[00:17:11] Speaker 01:
I don't think that's undisputed.

[00:17:13] Speaker 01:
I don't think that's challenged.

[00:17:16] Speaker 01:
Howard had an honest belief in its reasons.

[00:17:20] Speaker 01:
If you look at the- Well, that is challenged.

[00:17:23] Speaker 01:
Well, I think if you look at, I believe it's number 105.

[00:17:30] Speaker 01:
Mr. Brown, it was undisputed that Mr. Brown believed that UDC's performance was deficient at that point in time, and that the continuity plan that Ms.

[00:17:44] Speaker 01:
Miles had put together was deficient.

[00:17:47] Speaker 01:
So there is no dispute that there was a sincere belief on the part of Howard University

[00:17:54] Speaker 01:
that the performance was deficient.

[00:17:58] Speaker 01:
And with all that being so, there was no reason

[00:18:04] Speaker 01:
whatsoever for the court to withhold summary judgment.

[00:18:08] Speaker 01:
The Brady standard was met.

[00:18:11] Speaker 01:
And let me just say, and this goes back to the Glecklin case that Judge Randolph decided some time ago, let's talk about the plausibility of Ms.

[00:18:23] Speaker 01:
Miles' position.

[00:18:24] Speaker 01:
Is it really plausible that Howard decided to shut down a service center that had been around for 10 years

[00:18:34] Speaker 01:
where the dean at UDC had worked with the dean at Howard for something like 18 years.

[00:18:43] Speaker 01:
Is it really plausible that Howard shut down that service center because the director went out on family medical leave?

[00:18:52] Speaker 01:
That's not a plausible explanation.

[00:18:54] Speaker 01:
It's far more plausible that Howard's explanation is the correct one.

[00:18:58] Speaker 01:
And for the same reasons as in Glecklin, this court should affirm that ruling.

[00:19:05] Speaker 01:
We didn't spend too much time on the joint employer employment issue.

[00:19:10] Speaker 01:
That issue, of course, is dispositive in and of itself.

[00:19:15] Speaker 01:
And once again, the court below had ample basis for its ruling.

[00:19:20] Speaker 01:
And we didn't hear anything about the dismissal of the Title VII and DCHRA claims.

[00:19:27] Speaker 01:
And I think that

[00:19:30] Speaker 01:
that the dismissal there, there's not even any question about it.

[00:19:33] Speaker 01:
In fact, there wasn't even any challenge in the appeal as to the trial court's finding that there was no evidence of discriminatory animus based on gender, pregnancy, or family responsibilities.

[00:19:51] Speaker 01:
There was no evidence of any discriminatory comments.

[00:19:54] Speaker 01:
There was no evidence that any

[00:19:58] Speaker 01:
women or other pregnant women or people with families were treated badly.

[00:20:04] Speaker 01:
Just the opposite.

[00:20:05] Speaker 01:
All the evidence here is that Howard cleaned house.

[00:20:10] Speaker 01:
It terminated its second most senior executive at the Howard Lee Center.

[00:20:17] Speaker 01:
He was a male.

[00:20:18] Speaker 01:
It had pressured the prior director of the Howard Leeds Center to retire because of concerns about his performance.

[00:20:28] Speaker 01:
And it had even criticized the preceding director of the UDC service center and had encouraged UDC to terminate him.

[00:20:38] Speaker 01:
So there was nothing going on.

[00:20:40] Speaker 01:
There's no evidence here of any adverse animus based on

[00:20:47] Speaker 01:
FMLA leave, pregnancy, gender, nothing whatsoever.

[00:20:52] Speaker 01:
And that's why the trial court found there were no disputed issues of fact and correctly dismissed the case.

[00:20:59] Speaker 04:
Thank you.

[00:21:03] Speaker 04:
All right.

[00:21:03] Speaker 04:
Mr. Whitfield, we'll give you a couple minutes.

[00:21:05] Speaker 04:
Thank you, sir.

[00:21:07] Speaker 00:
I refer the court to Mr. Haig's declaration, which is found at JA 850.

[00:21:14] Speaker 00:
The second page, which is 851,

[00:21:17] Speaker 00:
If you want me to wait for you, I will.

[00:21:21] Speaker 00:
Paragraph 15 of his declaration, Mr. Hague, who was the director of the Anacostia Economic Development Corporation,

[00:21:31] Speaker 00:
Business Development Center, which was the Anacostia counterpart to UDC Center.

[00:21:37] Speaker 00:
Paragraph 15 on page 51 says, in about September of 2009, Miles approached me and told me she was pregnant and expected to give birth in April 2011.

[00:21:46] Speaker 00:
Over the course of the next several months, Miles informed several staff members, both at UDC and throughout the DC SBDC network, of her pregnancy and her anticipated maternity leave absence.

[00:21:57] Speaker 00:
17 miles disseminated this information to the AEDC so that people could plan for Miles to be absent during the course of her pregnancy.

[00:22:05] Speaker 00:
18 miles contacted Wheatmeet and we made arrangements so that in her absence her clients would be referred to the AEDC service center as the AEDC was able to temporarily absorb the additional clients.

[00:22:17] Speaker 00:
We did this because referring clients between the service centers is an operational practice of the SBDC network and was specifically facilitated by the SBDC standard operating procedure manual's guidance on record storage.

[00:22:31] Speaker 00:
In fact, we were trained that referring clients between the service centers should be an operational practice for the DC SBDC network.

[00:22:38] Speaker 00:
Accordingly, Howard's Lead Center and service centers occasionally referred clients between different DC SBDC centers based upon the client's needs and the availability of resources at each center.

[00:22:50] Speaker 00:
I would submit that there was planning going on for a substantial amount of time.

[00:22:56] Speaker 00:
Mr. Brown,

[00:22:59] Speaker 00:
Howard first raised the issue, and Mr. Brown raised the issue, but Howard raised the issue for the very first time of potentially terminating Ms.

[00:23:06] Speaker 00:
Miles because of the issue.

[00:23:07] Speaker 02:
Is there an issue about paragraph 15?

[00:23:09] Speaker 02:
Yes, sir.

[00:23:11] Speaker 02:
How can that be?

[00:23:13] Speaker 02:
You know, that was going to be my question.

[00:23:14] Speaker 03:
The matter doesn't add up.

[00:23:20] Speaker 00:
I would assume that that is an error because she started working there in 2011.

[00:23:26] Speaker 00:
2009, forgive me, but no, I believe that that is a, it should be 2011.

[00:23:35] Speaker 02:
Which should be?

[00:23:37] Speaker 00:
September of 2011.

[00:23:41] Speaker 02:
She was going to give birth in April 2011?

[00:23:46] Speaker 00:
Forgive me sir, 2010.

[00:23:48] Speaker 00:
My wife would kill me at this point.

[00:23:52] Speaker 00:
But no, I believe it was, she learned in the roughly September preceding the April 2011, and that I think is clearly a typographical error.

[00:24:02] Speaker 00:
But he then said here that they continued to make plans over the preceding months prior to her departure.

[00:24:09] Speaker 00:
I would also note that the first time Howard University ever raised the issue of potentially terminating Ms.

[00:24:15] Speaker 00:
Miles was April 7, 2011.

[00:24:18] Speaker 00:
She went out on FMLA leave on March 7, 2011 and informed UDC immediately.

[00:24:23] Speaker 00:
She informed Mr. Brown on March 14, 2011.

[00:24:27] Speaker 00:
Under the FMLA, when you are out, if you've got an employer who makes a decision to terminate you, then the onus is on the employer at that point to explain why the reason is reasonable at that point when you're firing someone there that is out on me.

[00:24:42] Speaker 00:
The decision wasn't made until she was out to terminate her.

[00:24:46] Speaker 00:
As evidenced by the contemporaneous emails and as evidenced by Mr. Brown's own testimony,

[00:24:54] Speaker 00:
where he acknowledged that he had not decided to terminate her before April 7, 2011.

[00:24:59] Speaker 02:
Now, the fact that... This is somewhat off the point, but the argument that reminds me of a statement that Chief Justice Marshall made about the repeal of the Circuit Court Act in about 18, whatever, early, he says, you can't remove the judge from the court, but you can remove the court from the judge.

[00:25:23] Speaker 02:
And that's basically what your argument is here.

[00:25:28] Speaker 00:
Well, I'm going to confess, not being enough of a student of the law in that particular aspect, what I would say is

[00:25:38] Speaker 00:
The fact that Mr. Brown made the decision to terminate Ms.

[00:25:42] Speaker 00:
Miles, had he made it before he was told that she was taking FMLA lead, we would have an entirely different case.

[00:25:49] Speaker 00:
But the problem is he came in and first questioned her how long she was going to be out.

[00:25:52] Speaker 00:
This was a situation where Howard was saying, we're in an emergency here.

[00:25:56] Speaker 00:
What are we going to do?

[00:25:58] Speaker 00:
And he comes forward and says, how long are you going to be out?

[00:26:01] Speaker 00:
60 days, 70 days, how long?

[00:26:04] Speaker 03:
I think he said, what is the policy they have?

[00:26:07] Speaker 03:
That's a perfectly sensible question.

[00:26:09] Speaker 00:
It is, but the problem is he doesn't make the decision to terminate her until after that, which suggests to me, as a potential fact finder, that he's looking at this and saying she's going to be out too long.

[00:26:21] Speaker 00:
And we need to replace her.

[00:26:23] Speaker 00:
And that is consistent with the fact... It was 60 or 90.

[00:26:25] Speaker 04:
It wasn't though, it wasn't Judy who was just trying to figure out how many months it was.

[00:26:29] Speaker 00:
That's true, but at that point he's asking her when she's returning and then he subsequently is making the demands in the subsequent correspondence saying you may want to think about replacing her in his April 7th correspondence and then as a condition precedent to keeping the center open, he's saying replace her, put someone else new in.

[00:26:47] Speaker 00:
And so what he's doing is he's saying, I'm not going to wait.

[00:26:50] Speaker 00:
And under the DCFMLA, she's entitled to 16 weeks, which is roughly 112 days by my math off the top of my head.

[00:27:02] Speaker 00:
And he wasn't willing to wait till she could come back.

[00:27:06] Speaker 00:
And he was saying, we need someone in there.

[00:27:07] Speaker 00:
We need someone in there permanently.

[00:27:08] Speaker 00:
We want to make sure they're the right person.

[00:27:10] Speaker 00:
That is a factual scenario that we put forward as a viable reason for why he terminated her because he didn't want to wait for her to return.

[00:27:18] Speaker 00:
It wasn't because of her performance at the time, because at the time, he wasn't criticizing her performance saying it's terminable up until April 7th.

[00:27:28] Speaker 04:
Thank you.

[00:27:30] Speaker 04:
The case is submitted.

[00:27:32] Speaker 04:
Thank you.