l we're here on an appeal from an order granting summary judgment in this retaliation case brought under idol seven the federal civil rights act and the michigan elliot larson civil rights act t arises out of scott trujillo's terminations from employment as a corporate controller with henna guess in september of two thousand and eight in this case mr to try hilo contends that he was terminated because he complained to the vice president of human resources that one of his bosses vice president larry rolland who's making derogatory comments about the races in that it was making who uncomfortable in that soon there after he was terminated so this is not the second time this case has been before the court indeed previously the trial court ran in summary judgment finding that the plaintive had not established the first prong of retaliation claim that is that the plaintiff engaged in protected activity this court ruled in august of two thousand and twelve that the trial court had erred and in fact that mr  prong of the prime fish case and that is claiming that the defendant didn't know that mr trujillo hadn't gauged and protected activity and that even if it knew that plaintive could not establish the causal connection between being the protected activity and the terminations the food drops that knowledge part of the sure i think it's important to recognize the error that the court made in this particular case  although of course you're reviewing this to novo but the court really viewed the facts in the light most favorable to the defendant instead of the plaintiff in also acted as a fact finder here the court found that the vice president of human resources ms gasper it could not have understood mr to heal those complaint of concern regarding comments made by mr rollins as protected activity and that a vice president of human resources who has told by an employee that one of the managers is making comments about the races that is making him him uncomfortable and in a vice president of human resources who the court has already ruled was told something that amounted to protected activity did not perceive that is protected activity and the evidence that accepting mr testimony is true stablish is that there is at a minimum a question of fact as to where the defendant knew and so that's whether ms gaspar knew or whether the people are well it's both in and in fact in this deal with the people who fire assume for the moment that she didn't fire him ok well i think that's a a leap to say that she was in the one who fired him and then what's the evidence that supports the inference that she had anything to do with the terminations decision is it simply her being present in the meeting and will act that she occupied at the position of director of human resources or is there something else well i think for her in terms of her knowledge and her participation the fact that she's the vice president and human resource and sources in there was evidence that she was involved in decisions to terminate employees in that capacity that was her job responsibility that she was present at the time golf without making the decision you can be i mean you know even resources director typically gives advice to that terminations is involved that doesn't necessarily mean the person who's the director of human resources is the decision maker that's true and she may not have been the decision maker but in this particular case where she isn't the decision maker and the decision maker doesn't know about any get where you need to get well i think that it isn't in this particular case based on the facts and what you have is circumstantial evidence first of all the device prison and human resources let's assume that there's issues of fact as to whether she was provided with information that constituted protected activity now as a human resource director if she was told by an employee that there was another manager who was making derogatory comments about the races in she perceived that as protected activity then in her capacity as human resource manager vice president it would be hard to believe that when a decision was made to terminate an employee that she would not have communicated that to the decision makers so that they could take that into consideration especially in light of the fact that the temporal proximity is so significant she returns from europe and step on september eighth the decision to terminate mr trujillo's on september tenth she just heard mr to h make a comment that constitute a protected activity that she wouldn't tell the the vice president of finance that in fact he had made this comment when they were making a decision to terminate is hard to believe but we don't even have to go there because there is further evidence that the decision makers knew and that it influenced the decision to terminate mr trujillo and i think if you look at the cases that are there of the further evidences that ms gasper it totaled this group of vice presidents the day after mr trujillo reported the protected activity that they needed to watch what they said that they needed to recognize when people who were not within their inner circle were around and that they needed to avoid comments that may imply biased ok these were comments made to these men there's evidence that these men then complained to the people who did make the decision larry williams  there's evidence that these people poisoned the decision maker telling me that the evidence is that mr williams had never heard anything derogatory about mr trujillo was performance until after he engaged in the vittie protected activity and suddenly there are all these complaints coming in about his performance that resulted in his immediate term a nation just apparently very close and to his return from the sure trip and that up until that point everything had been hunky dory no i'm not saying that i'm not saying that i'm saying that certainly it was a new position he had been in for just four months and they were going through the process of integrating to corporations there were issues ok what are the what is the evidence of what was said after the europe trip after i mean that there's you've got to be there several leaps year i mean there's no i mean there's no indication that mr gast group let it be known that her warnings to the group or included in any mention of mr two were that they need that mr truly was the one who had that somebody had compliant in that it was mr true i mean wasn't she present at the dinner too she was but i mean so i mean what's the what's the what's the leak here well i think they have to take in these cases are always difficult because the fact of matter is is that we're dealing with circumstantial evidence is evidence employers are sophisticated enough to know not to to make direct comments and so we're dealing with that all the time but would you have here you have to look at the total picture mr although the court said that the comments that mr trujillo made to mr rollins in the past about comments he made about mexicans and about african americans didn't mounts protected those comments were made we have to assume that those facts exist and that he did oppose larry rollins comments in the past now you've got this the fact that he's had three different confrontations rollins about how he talks about minorities and now you have mr rollins making another comment at dinner where mr gasper does there and then the very next day mr gasper it's telling them watch what you say you don't want to make comments about bias and i think the fact that mr rollins knows about mr trios past and about how he had opposed in the past leads to the inference that they knew that he was the one that was complaining he was the only one who wasn't there at the time he was only one not part of the inner circle and he had had poor his comments of that nature in the past does it do harm to you in drawing the inferences that you'd like  not certainly but i think what you have to take into it's not the death knell it does not constitute an admission it was a clever questioning of a plaintiff in front of ms gaspar who sitting across a conference table and asking did you hear her testimony and you know he's he's in a kind of a difficult situation in terms of testifying whether she's line ok but it doesn't matter it's not an admission he can't judge credibility on well i agree with that if to permit the purpose of retaliatory motive for the term and i think that's a problem at trial i do i think that's an issue that will have to deal with the trial but i don't think that it justifies summary judgment the court's already ruled that what he said to ms gasper it based on the testimony constitutes protected activity and if there constitutes protected activity then certainly the vice president of human resources had knowledge that it was protected activity her actions demonstrate that she took it that way she said that she had an obligation to act on it in that she did and mohnish these men the next day and then you have just you know two three days later he's being terminated and she's part of that process and so i think the links exist to establish all the necessary problems of the promise case and that would take action it would seem like a logical thing for her to do would be to take action by alerting them to the fact that they need to be careful without attributing it to a particular complainant seems like the last thing a good human resource person would do would be to say so and so has complained about your comments so you better be careful much wiser thing would seem to be you better be careful about your comments i don't disagree with that she said why is it so hard to to and then she said that's what she did right she said i didn't mention him that's true so why are we so where's the evidence that she didn't mention him if the normal thing would be not to and she says she didn't well the normal thing would be to do it then you can say well we can draw the inference that she would do the normal thing well i think you see what i'm asking you i do and i think that i understand why as a human resource vice president she might not mention his name but i think she didn't have to mention his name based on the history that mr ahead with mr rollins i would think that she wouldn't care or say off as director of human resources why isn't it just as likely that the comments emanated from her own observation at dinner it may be likely but just as likely it may be your honor but i'm we're looking at issues of fact here in so in and judge rogers you mention wouldn't be logical for the vice president of human resource not to mention m yes i think that makes good sense it also makes good sense as a vice president of human resources that when a decision is made to terminate somebody right after the person is engaged in protected activity that you communicate that to decision it's also after there's evidence that he also engaged in poor performance something it's not that it isn't in a vacuum but first of all we didn't get to that i mean i agree we know we should be wiping and i don't mean to suggest that  conjecture can be used by an employment discrimination plaintiff to support their claim of discrimination what's less common is what we have here where the plaintiff himself acknowledged during the deposition that the link between his protected activity that takes him to the discriminatory you know to the discharge decision was based on quote a lot of speculation which he did in his deposition mr had mr trujillo the plaintiff here was hired as a corporate controller and only worked there for five months in that short period of time as judge gibbons pointed out he had a myriad of performance issues primarily dealing with his financial reporting which was at the center of his job responsibilities within the first thirty days of his employment the president of the company had to call him in along with his supervisor to give him what describe as unfavorable feedback with respect to the timing that and the accuracy of his financial reporting claim to said he would do better he didn't the problems continue mr trujillo also had admitted problems which he admitted both in emails to his supervisors in an e mail to a supervisor and during his deposition with meeting deadlines and admitted that he was before hind end on a lot of important projects for his supervisor mr williams now instead of these admitted acknowledge performance problems that started at the beginning of his employment he continued until the very end he claims that the decision was based on this conversation that he had with jerry gaspar a vice president can resources on the way home on the way that from dinner now i think the context of that dinner conversation is very important because that is her sphere of reference what happened there is they were walking back from a dinner while they were on of an assignment in europe and at that dinner there was a conversation that turned to the performance of the controller at the guadalajara mexico plant who happened to be of mexican national origin now no comments were made during that dinner about his national origin it focused on his performance one of the comments made which was by larry rollins who is the person below repeatedly complains about was that this mexican controller was effing worthless except he used the actual profanity which as you might expect the human resources person might raise her eyebrows too it was in that context and having just sat through that dinner conversation that she understood plaintiff's comments to her and her kid his comments to her why did she say she had to do something about it well i think as a management you don't have to do something about oh i think that any human resources professional worth or salt if they cure a dinner conversation where a subordinate is described as f ing worthless and those kind of comments are going to made and somebody expresses discomfort with that they're going to address it i mean it's just like if i were sitting at a table with some of my english the fact that someone complained about it that made her feel that it needed to be addressed that she did that's the clear implication you get from it and from the position that she didn't feel it was a necessity whatever was imposing the necessity from the situation but once there was a complaint then there was a necessity well that may be true but i think that out of respect again for a person who uncomfortable you know a good human resources professional is concerned about the overall work environment if someone comes to them and says i'm uncomfortable by something you said then you need to do something about it but the problem which i think is been raised already with the plaintiff's case is that they can't prove knowledge in any way shape or form and every attempt to do so is based merely on speculation trivial claims he made this comment to gaspar it gaspar didn't understand it plaintiff acknowledges that guess reasonably misunderstood what he was trying to tell her but even if you believe that guess where it did understand what he was doing that he was engaged in protected activity which there's no evidence of she didn't participate in the decision she she was not the decision maker the decision maker according to the un contradicted  with the jury conclude that the decision makers or the other people at that meeting might have been able to infer the truth was u ncomfortable with the denigration of the work ability of the people without without the racial aspect to it just didn't like the way you know his fellow workers were being referred to in such disparaging terms well i have a few answers to that i guess the first one is if that's how they interpreted the comment if they just interpret it is don't be disparaging to coworkers then they would've believed it was protected activity has  you know these these executives who were seem like they could figure that out i mean i understand that you're relying on the fact that the he in the deposition a knowledge that  gaspar may not have treated as a as a race or ethnicity kind of comment but rather a disparagement of workers kind of comment on what you're saying now that the people who her not sure that you know that the that the statement of mr for you in the in the in the deposition cut cuts either way on that that goes to what that whether it was racial or not well it's not only mr  deposition testimony that the jury would have to consider though it's also the executives themselves they testified that that not how they interpreted jerry gaspar it's admonition to them what they said is to the extent they thought about it all they thought that it was coming from her you know that's what larry rollins testified to and that was on contradicted and that's consistent with what she was trying to do when she approached them she has as you pointed out she made an effort to make it sound like it was her who had picked up on the insensitivity of the dinner conversation anyway moreover even even if the executives you could say the executives knew about activity which there's absolutely no evidence that they did to get to where plaintiff needs to go there has to be proof that that caused larry williams to discharge m and again there's no evidence of that the decision maker that there was a decision maker there's no question about that whatsoever the executives that were en europe did david been soused actually the only executive who ended up calling back to complain about plaintiff's performance he didn't do that according to the deposition testimony until after the decision had already been made and larry williams had gone to  gaspar and had her start preparing the separation paperwork david van zeus recall calling back to the office and i believe september twelfth in the decision was made and september tenth so it was before the actual terminations was carried out after the decision had been made and even then you would have to figure would have to believe that larry williams just simply rubber stamped this you know that these this recommendation coming out of europe which the evidence as he did not larry williams himself independently reviewed the financial package that had been prepared by plaintive in which was much maligned on this euro project and mr williams independently found that it was lacking they didn't do a very good job on it so you know there are just so many hoops that plaintiff needs to jump through and so much speculation that needs to take place here in order to find that pentagon's had knowledge now plaintiff has made some arguments that general corporate knowledge of the protected activity should be sufficient to establish that element of the prima facie case that's not the case law on the sixth circuit if you look at that and undisputed plaintiff acknowledged multiple times that well before he engaged in protected activity within two weeks of the last day of his employment he had had a number of performance issues and a number of performance issues that had been discussed with him you know plaintiff's claim is that there was no written documentation of his performance problems but there were written correspondence which reflect the dissatisfaction that was occurring and plaintiff had been called into the president the company's office within the first thirty days to receive this unfavorable be back in to make it clear what the company's expectations were for him so it's it's not surprising that he would have received a performance evaluation or some sort of written documentation before before his discharge i'm sorry your honor but you're going to say something  is also not enough i that the discharge decision was made somewhere between three and eight days before before his discharge but that doesn't that's not sufficient to carry the day the cases cited by plaintiff were temporal proximity can stand alone or ones where the discharge decision was made a media only after the protected activity occurred in this case was it made before or after the protected activity th at some of the recreate here on that you just can't quite remember for me is the record clear on that you can't quite remember well he was he was discharged on september fifteenth the record isn't entirely clear the decision was certainly made and the owner of the company received it that morning later that same morning goes and fires the plaintiff without any warning more or prior known performance issues that's not the case that we have here  just briefly in terms of knowledge in terms of ms gaspar's knowledge her testimony is just unequivocal that she knew she testified after the dinner we were walking back everyone was going back to the rooms and scott  comment to me that larry made some uncomfortable comments about mexicans and it was bothering him she goes on to say i know how to handle harassment cases she identifies this is a rasping case she goes on to say i knew i couldn't take it lightly and i had obligations so the fact is is that she knew now she knew now we have the terminations decision and we've talked a lot about what a good vice president of human resources does in the fact of the matter is that ms gaspar returned from europe on september  the decision to terminate mr trujillo was on september tenth that's what the record says the temporal proximity is acutely close ok and she would have told mr williams that this individual did their about the hire of fire engaged in protected activity that's logical as a h r v p and a jury could reasonably conclude that it's not as if she didn't have anything to do with the terminations she was actually present at the time that mr trujillo was terminated and in addition to that in terms of our requirement in order to get past a motion for summary judgment temporal proximity is sufficient in itself to establish the causal connection prong was incorrect in making that statement that it wasn't sufficient to take temporal proximity alone is enough and in these cases in the sixth circuit have made this determination and we've cited him in our brief but beyond that is where there was knowledge that part me all those cases where there was knowledge sure and there's knowledge here i mean it at a minimum there's a genuine issue of material fact as to whether there's knowledge but we also have evidence here that individuals who weighed in on mr trujillo who's terminations knew that he engaged in protective protected activity and so the cat's paw theory really applies in this case because there's evidence that these individuals were complaining to the decision makers as well and also we have evidence that while they may claim that he had performance issues there there is evidence that there was no formal  performance criticism given to him no discipline even though they had done that in the past to ms gaspar in fact had been involved in a case where mr trujillo wanted to discipline an employee for performance issues and he was told by her you've got to document you've got to give him an opportunity to improve nothing like this was done with mr hilo and in fact the last performance review he got from mr rollins i'm sorry mr williams found him to achieve have achieved three the four objectives and then dish and mr williams had determined that he would be his deputy when he was gone so there is evidence that there were no performance issues that would have justified his terminations were the performance issues there's some there's evidence of that but nothing that would justify his termination until he complained and then after he complained he was terminated came as a very big surprise to him and at the time of the terminations he was in told it was performance initially he was told just not a good fit and then they started changing the decision or changing the explanation which again is evidence that creates a genuine issue material fact there's nothing further i believe your time is thank you we appreciate the argument bo