relates to whether mr ali well why she was employed by the defendant and gauged in protected conduct which would course be the necessary prerequisite for her to be able to state the the mistake was both legal and factual in terms of in terms of the factual mistake that was made by the court it was in the courts description of what exactly  about and she complained about a series of different things most important she objected to what is generally described in the industry and related to the regulatory regimen that that is relevant to this issue the doc in the box program and that is the basis of the settlement that salads made with the government was the doc in the box program was that it was in part your honor of the basis of that settlement yes so there were a number of different violations and i wasn't representing mr ali well for that portion of the case but my understanding is the doc in the box violation was in aspect of the settlement and that was the u s attorney prosecuting that that matter and it was something like a fifty four million dollars settlement with selig's on those charges but miss dolly while when she was there and the only part of this that remains is her her personal retaliation claim as to whether she was on and then was without getting into the details because it's not important for this argument but there was a little computer with the with the speaker so that they could be the cover for the providing of of the elaborate of the of the of the gratuities on the on the attendees mostly doctors and she complained and she said that it needs to be brought to compliance and her supervisor said no you don't go don't you don't go to compliance i'll take care of it and as far as for understanding as she did so and he did so that was one of the things that she complained about that clearly would be constitute protected conduct separate and apart from then obviously having to to connect it up to the adverse employment actions which i think believes the second error that was made here certainly in terms of there being things and in fact the record evidence really doesn't doesn't include denials of those things meaning that she never complained about these things the defense is essentially that they didn't constitute protective condom but in fact that it  does any of the other things see complain about relate to oh further i don't the government yes europe for example when you when you know you can't obviously when you're marketing material for drugs that ultimately are being billed to the medicare medicaid programs you can't lie about those drugs or you can't mislead about those drugs and you can't throw giulio minute information about the drugs so for example health care cannot market these materials and and because the assumption in the industry will be that these studies are done and that there is they exist and they were they didn't exist so that was in her judgment of frauds and omission you have to be clear to them that these kinds honor apparent from the nature of the complaints your client alleged that her concern was fraud on the government as opposed to something else i mean there are a number of  who are affected by these notices by these payments and her concern was in nothing that your client ever submitted to her said did she say yes that this would be a fraud and that's the protected activity so help us out with the with what you're saying is the air and i think your honor that good that gets two circles back to what i originally said which was not only was there a factual mistake in how what she was complaining about presented in the decision but a legal error in what the standard was in terms of what you need to say in order for it to be protected conduct and what the judge suggested as as does the defendant is that you need to be taught you need to be communicating to your employer if this is an internal complaint that there was this this could be fraud that this could lead to fraud that this could lead to for down the government and that isn't the standard as articulated by this circuit for example in churches or by other decisions such as allan john which is a well known now southern district a citizen about what you need to say to be protected conduct you don't have to say this could be for you need to be complaining about factually about conduct that could lead maybe lead complain about it would it would not include doc in the box i mean doc in the box was i mean she was a bird if you could be and saying this is a you know this is you can't do this this needs to go to compliance and in fact the proof is in the pudding with doc in the box not you know it's one of the bedrock principles particularly the medicare medicaid program that you've got to be truthful with with with the with the consumers of these drug potential consumers of the drugs of trip to the government and that i don't know a few minutes remaining why don't you speak about retaliation what was the nature of the well she you know there were there was really three distinct acts of retaliation out of there was a failure to promote she was promised a promotion and didn't get it that she was actually demoted wasn't she out sectarian this period you know this was prior to her taking a familiar leave that there was a promotion promise she didn't get and this is followed very closely in time to the complaints that she was making she didn't get her full bonus and also ultimately and this is a contest of fact as to whether she was terminated the the c e o within a week of her reiterating the complaints of the c win the seat of the company says don't come back to work here and we don't want you here that would be at a minimum destructive combination but i think you can make an argument that that is in fact you know at that level of coming down to an actual terminations but that's separate  failure to promote compensation issues which occurred before and i would just say one thing in addition there was direct evidence of retaliation i mean she was told on two occasions to shut her mouth about these issues when she brought them up by her supervisor which would corroborate the very close time that he said i'm trying to get your promotion when it's so it's up to me that the more she talked about this the likely her promotion would be somewhat yes and i would be blatant retaliation you know i mean she shouldn't have to shut her mouth about violations in order to get promoted at the company i mean that would be direct evidence of retaliatory in time and again i don't think there's anything in the regular listeners and i question the refusal and in april he says to her you know an april tenth two thousand and one that you should keep her mouth shut that she says it twice to her and then  the she will she really rates her concerns to directly to the c e o but that's not until march fourteenth two thousand and thirteen and then on march fifteenth the next day she's not paid a bonus and she's not getting it she doesn't get a merit increases performance review e objection that's correct yes first the program if i understand it and the district judge does discuss this your client called to say she was concerned that the f d a employee who was in attendance would see the event as a you know quote unquote fun evening for medical faculty and she asked to speak to a compliance officer she was told that mr temper otto would speak to the officer himself what judge koch was concerned about was that nothing asserted about that suggested that the defendant's behavior was going to lead to a false claim being submitted to the government how would that be inferred because what she was complaining about was what would be and what was well known to be a violation in this industry which is to have the laptop with the face of the speaker off in the corner to provide cover for the payment of these gratuities if this was the thing that she was complaining about is the thing that the u s attorney ultimately pursued and led to the fine against the company i mean she doesn't have to say and that's the point of churches and the courts that the cases that have broadened the understanding of what constitutes protect the constitution have to say this is going to be fraught with this is going to result  suggest that there's a problem with more then are we in compliance because they could hold this program as long as they didn't treat it as an educational and so the first step is let's check with compliance over whether we can do nominated an educational program to which the answer would have appropriate leah's all the dust settles be no but where is there any evidence that once compliance was spoken to they would have perpetrated a fraud on the government never but that you are then goes down the road of really narrowing what can be protected conic because if you're going to have to just every time anybody says let's speak to compliance about something that's dubious that if they don't get a promotion or they don't get some of that they've got and this this particular statutory violation i don't think so you want to because there are only certain things kickback statute this is not just any compliance issue the the companies are very there are ten it should be open are always up about the stop all we conform to the anti kickbacks actually that's why they have the doc in the box that's why they have the da program i think  across this country look at to determine whether there's of f c a potential action so when one of your professionals comes to you and says hey we've got to go to compliance with this you know we have a potential problem with this with the prepayment of absolutely i took has to be protected conduct when judge crowd concludes that miss dolly was more concerned about her own a liability rather than a fraud on the government when she said there's an what she's doing your honor and i think that that you see that throughout her decision is that things that should be and we were having a discussion now about protecting condit while we can have a fact for him to look at all of the facts and all the the details of the back and forth and discussions as to whether protected conduct would be one of the things that a jury would have to find but we're talking only at the summary judgment phase of this certainly she's come forward with the enough now to have a court interpose its judgment about these things and have a  know who that was i just know ms dolly wall and this record has admitted that she as of february twenty third team she had no contact with the government relating to the key term issues ok and like to spend a on seventy ms dhaliwal explains that she's attended she did it's part of her job to regularly attend these events and there's no record of her ever complaining about them except in this one instance i'm seventy one she says it was incredibly concerning to me that an f d a official was present and so i think to a point earlier you know in just bill you mention the question is not just what ms dhaliwal intended but what a reasonable employer in that position would understand this is  looking at exactly what she said she did i don't think she implied you know we have a problem with this program and it needs to stop what she's saying is i've been doing a ton of these i never complained before when the f d a wasn't  compliance does that put her employer on notice the key thinks there may be a legality problem right i don't think it puts the employer noticed that she was objecting to it or trying to prevent it in illegality if anything she may have been you illegality and wanting to make sure it wasn't caught but but if you hold i think even even apart from that if you look at the for the first circuits booker decision which was dealing with off label promotion about a possible fraud you and characterization of this event right correct your honor i think did no reasonable jury might succeed in your arguments if you go to trial but my question is you have to persuade us that no reasonable jury could think this was a complaint about misrepresenting this kind of an event to the government while you're out i think would have to be a little bit more than that it would have to do with the fall in the fr certify compliance with the n c kickback statute and there's just nothing what could it mean when they when she says i want to talk to legal compliance i think she says both of them what could it mean except i'm afraid we're committing a fraud on the government i would read this is it is i i want to help us not get caught but and you to judge rather just point earlier you know i don't think it could be the case that anytime someone says some i wonder if we have a problem here let's talk to waltz favor in our view that's not a reasonable inference that a jury could drop but but but if we assume for a moment i don't want to i don't want to spend all my time just on the dock in a box point without making you know an alternative argument which is that you know let's assume that what related to doc in a box on april tenth you know her whole claim of retaliatory animists is this shut up i'm trying to get you promoted mr temper otto allegedly said that to her on april tenth again that is before doc in a box that can't because only related  she said she called bobby just sign it i'm trying to get you promoted just sign it was referring to her performance evaluation so on so she was that sorry your honor i thought that was done in march exactly so she was upset she was upset and this is well established in the record she's very upset about this performance review because because her supervisor said she could make points that were belabored she didn't want to sign it acknowledging receipt of the review so what she says in her own notes in may when when mr adams says i'm trying to get you promoted she says just sign it talking about the performance review in fact this whole document i think is an important one it's that one thousand nine hundred one twenty six those are ms dolly wells o preparing for this meeting with the c e o sort of detailing her mistreatment by the company you know putting in her own words everything it doesn't mention doc in a box and once it mentions some of the other things she complained about like the celeste the slide deck it just doesn't mention doc in a box so if we were to assume that this doc in a box complaint was protected conduct what we have is that happened in april she continued being a valued employee through the rest of the year she went on medical leave  months out of this out of this doc in a box complaint and that's all she has and i don't think dischord has accepted something like that is giving rise to a causal reference excuse me a causal and for once in your honor if you look even at brief you know when she when she argues it really depends not on you know just getting past summary judgment on a single aspect of protected conduct you know her case of a causal inference  is this close temporal connection where she says i did something protect it and immediately retaliated do something protect it immediately retaliated and it really falls apart if all she has is doc in a box on top of that one further point when you look at the document that i mentioned where she was you know cataloging her list of grievances and again in letters that her lawyer sent she says for two and a half years my life has been a nightmare you know it all dates back to decision which we quote in our brief says you know if it's if you're talking about sort of a gradual accumulation of adverse actions but that accumulation begins well before the protected activity then at summary is the this is while she was on leave say lex has a policy of not of not giving raises of not paying full bonuses for time on leave you know this to the test is you know that's a legitimate message a legitimate explanation and it is it that well i'll answer your honor but i to answer that very directly in the dark in the box i think this is all sorts of complaints and retaliations but this makes it very clear i believe on march fourteenth two thousand and thirteen she complained for the first time about the doc in the box program among many other things which march fourteenth two thousand and thirteen to the c e o of the company and to the c f o march fourteenth two that she said she was on medical leave but she wasn't far she was on medical has a meeting with the c e o carolyn logan the c f o adam temperature when she complains about the doc in the box program and the other things she hadn't included them in the complaints per previous and on march fifteenth she's not paid her bonus the next day now provided until april two thousand and twelve right right so soon so the so the so the dinner when she first makes the doc in the box program it is on april thirteenth two thousand and twelve where she's told those things and then are more fifteen the next day she's not paid her bonus she's not provided a merit increase she doesn't get a performance review and then on march twenty second two thousand and thirteen that is company policy for people who are out no no i don't agree with you on a not to be paid a bonus or get a merit increase no i that's not something that that she absolutely contests that that's true and then on march twenty second it's her there's her she was an employee then there's her testimony on it on march twenty second two thousand and thirteen she should not return to work i mean that's a week later that logan is telling her not to return to work which is a week following her meet her meeting with the c e o saying talking about the doc in it's within days of her complaint to the c e o and i would just add one thing we believe that the our complaints about the marketing materials are complex began to be the be in the beginning of february two thousand and twelve with her complaints about the marketing material and the fraud that she believed that these were there for general missions and so forth we believe that's protected conduct as well and and that was prior to her not getting a promotion not so there was an accumulation of objection she was making it didn't begin with the doc in the box complaint unable thirteen proceeding that with the complaints about the marketing material that she claimed were were were were fortunately incomplete and had expressed misrepresentations in them as well and we believe all of that is protected conduct in all of it is subject to having a jury decide whether to protect economy so there there's an interplay of retaliation and complaints that occurred to take the april thirteenth doc in the box complaint and then natch it up to things is is not how this record should read and certainly not jury should be allowed to evaluate all of the complaints and all of the retaliation to determine that was unfortunate it was retaliatory ten particularly when a supervisor says keep your mouth shut on two occasions about the stuff i'm trying to get you i'm trying to get promoted and particularly when the o is expressly told about it in march of the next year and then within days the is followed by and within a week of saying don't come back here all of that that whole mosaic of conduct you know presents itself to