summary judgment against her in this title seven and iowa civil rights act of retaliation case in order to prove her retaliation case  must show three things that she engaged in protected conduct that she suffered a materially adverse employment action and that the material we adverse employment action was causally linked to the protected  fighting issue in this case is the causal link between the two the mr jensen can establish a causal link under either the federal determining factor standard or the new state of iowa standard as of twenty seventeen the motivating factor standard first she can establish that the reason that the defendant gave for her terminations was not true the this court has held that an employee can withstand summary judgment in retaliation case by showing that the employer's proffered explanation is unworthy of credence because it has no basis in fact that's the wars vs dean case and that the nonmoving party is entitled to all favorable inferences that the reason given makes the real reason  instructed her not to say thing more about it and under the we is version of the facts she then went and did exactly what she was just told not to do resulting in her termination poit that were that was involved in that conversation testify that there was only ever one conversation between the two of them about the topic of their of the younger coworkers  relationship that occurred at the casino turnstiles and it occurred before ms jensen ever went to talk to her supervisor in the security department about this younger coworkers relationship ms jensen found out about this younger coworkers relationship in the context of that conversation at the casinos turnstiles and so if that conversation happened after the conversation with the security supervisor then ms jensen would not have had the information that she would have needed to have that conversation with a supervisor the  terminations she complained about the security supervisors sexually inappropriate language in wait march he was terminated in early april and ms jensen ms jenkins determination was final as of it least august thirtieth so four months to five months something like that mr jensen does not argue that this is a case where the timeline the closeness in time between the protected conduct in the adverse employment action is determinative the cases in that regard hold pretty clearly that th e adverse employment action must follow very closely after the protected conduct in order for that just that timeline a woman to be determinative so ms jensen does need to show more and  mr taylor the security department supervisor suggested in there a white hearted joking conversation in the security office that day that maybe she shouldn't talk to  when the younger coworker about it now ms jensen didn't take that as as an authoritative direction but even if she didn't take it as an authority or authoritative direction she never again had a conversation with ms niland on the topic conversation so much later i believe the same day but later on the same day she called and left a voicemail for the employee relations manager complaining about the conduct and the manager with phone call happened in the timeline after the conversation with between ms jensen and mr taylor in the security office it's possible that they could have gotten the timeline confused and thought the complaint was coming about behavior after the conversation that what they say when they terminated they understood that she had disobeyed this order by talking denial and again that was the stated reason for the terminations now the the problem with that is number one they don't concede at any point either but we're in this appeal that they could have made acting i believe that she violated the order and but the point judge collagen is that if they were if they were mistaken and they terminated s several items of proof first if they hadn't if they had made a mistake if they had just misunderstood the timeline there would been no reason for them to persist after their e was exposed in in arguing that their timeline was in fact correct there also would have been no reason for them to do that  and if that was the only factor then then that might be an explanation but there's more the behavior that they manifested at the time of determination was very odd this conversation the term style happened on august twenty third the term an asian paperwork but you can see it pages eighty three and eighty four and one sixty seven of the appendix was filled out and dated on august twenty sixth twenty seventeen so they handed in some way decided that they were going to terminate her as of august twenty sixth twenty seventeen the next day august twenty seven august twenty seventh twenty eleven i'm sorry i may investigate the claim against her when just the day before they'd already filled out her termination people asking what's the proof of a connection between her protected activity right and the eventual mr taylor in their depositions in this case confirm that that was in fact true that they were aware that people had a grudge against other areas of or the me that they were the prove they were participants sure watch out there they are there they're out to get you because of what happened with this is they are talking about coworkers who were displeased and lose and someone they enjoyed working with and what i've argued in my brief is that the they can only include the people who have the power to terminate her because otherwise they might hold a grudge against her but they couldn't quote unquote get her unless they had the power to terminate and so all of this that there is so there was an atmosphere of retaliation that existed and when you combine that with the odd facts surrounding her terminations that they told they suspended her for three days pending an investigation when they had already filled out her terminations paperwork and that they are the reason for the term all of that adds up to a circumstantial i grant you but nevertheless strong case on which a reasonable jury could determine that retaliation was  either the determining factor or the motivating factor in  so there was some discussion in the briefing in there were some more recent filings about a change in the i was standard of proof on retaliation cases but we would submit this isn't about a standard of proof frankly i don't think she can make her plaintiff just simply doesn't have enough evidence to bridge the gap that there was some retaliatory motive on behalf of the decision makers that made the decision to terminate her employment counsel concedes in his argument we've argued in the brief the district court found that timing isn't enough there was a second evidentiary argument about alleged nit picky on some of the prior progressive discipline the district judge noted that your counsel are that plaintiff doesn't deny that she engaged in the underlying activity just characterize it that it should have been u against her in this way notably there is no evidence of comparatives on any of these points in other words there isn't any evidence that other people were treated differently under similar facts on any of the progressive disciplinary in the companies do you know the h r people who testified in our case believe that they have the timeline cracked however the plaintiff the missed nihilists testified to a different recollection in our view that recollection is probably mistaken and was and was recanted albi it truthfully but mistakenly in their respective positions but in the end it doesn't matter because there is no evidence that the information that taylor received about the  discussions turned south came after he knows he told her not to do it so in his mind even if you accept the mistakes as as as such as truth in the in the deposition testimony where we have to this point yeah sure absolutely i can see that for purposes of summary judgment but but but it doesn't make a difference because taylor still from taylor's point of view he told jensen not to discuss this with officer  and he received notice after that conversation that she had he viewed that as insubordination and that insubordination was the third strike and alternately lead to her terminations you the district judge circus not going to sit as a super personnel department on these issues you know the question isn't whether we got it right the question is of whether whether mistake was made the question is whether we did something a lawful was or something retaliatory interestingly the testimony with regard to the two decision makers in the deposition which is found at the appendix forty five question was there ever a point in time where you thought either mr taylor or mr stanford were behaving inappropriately with regard to you as a result of some bias from the t j investigation answer never ok other than the coworker you know so michael george for example is one i think you said that a couple of times where you didn't know the name but other coworkers who were partial to t j and perhaps shelley pratt as you set forth in your statement are there any other individuals specifically the alec pre whom you believe had some issue with you as a result of the complaint against you jerry answer no i don't ok again i'm just trying to confirm my record here my record is that michael george of the other i'm a name coworkers on the third shift and perhaps  yes and no others that you ascribe that issue with you know that was your testimony she tried to clean that up in a self serving declaration when she said that or lamm board who incidentally wouldn't submit a declaration  in the district court but she said that her landlord would come to testify at trial that her tenet of brian lucas told the landlord to tell ms jensen that  you and taylor whom the plaintiff admits didn't have an issue with or who the plaintiff actually testified were telling her hey look if people come to get you reported to us you know just the opposite of of having a retaliatory  motive there's no way that the day in her declaration to be ascribed to those two individuals on the assumption that it had to be somebody's management because otherwise the verb get wouldn't have had to have had any meaning in the statement the the statements two levels you're saying frankly should've been struck you know it is it's hard to square any of it i would like to add just because i think it has come up  and the iowa supreme court has clarified its standard on retaliatory motive and the standard is now a motivating factor not a substantial factor i believe if you count noses in that case it's a little bit confusing it's a very long opinion but i believe the concurrence of judge k d is before the vote and i believe if you read it all together the motivating factor is something more than simply  it played a part in the analysis it has to be a motivating factor and in that regard i don't believe it's materially different than the standard the judge read applied and as i said at the outset frankly i don't i don't care what standard andor stand your point there on the stand you say it's not materially different from what judge read applied didn't she apply the but for standard well she did your honor so let me clarify that title soudan under the supreme court's decision  think i think what katie said is that's different than the separate concurrence of i believe it's apple what katie said is motivating factor is something more than it merely played a part in which was some dicta in some prior case law in the state of iowa and that it actually has to have been a motivating cause and that standard when you combine it with the with the majority that want to apply the substantial factor standard which is the factor that the standard read used i think it's not it's not materially different i mean they look to motivation it wasn't you know just this all played a part in it it actually had to motivate the decision maker in some way but again your honors i want to be very clear motivating substantial it doesn't matter in our point of view but for the asli we don't think there's any outlined before you all in his presentation those facts may exist in france as can be drawn with regard to him but there's a gap you can't get to the two decision makers at issue because there's nothing that read found that that mistake if it was august it isn't problematic it's immaterial and it doesn't change the fact that there is no evidence of a retaliatory motive honour's i don't have anything further to say i have a little bit of time with i don't know if there's further questions that you all may have be happy to answer them if there are i don't see any thank you very much for your time today against her clearly when the two of them acting together terminated her that that let her know that they were against her at least at that point what she was trying to say in her deposition is that she never would have believed those people were against her prior prior to that time and she did clear up that that that mistaken understanding in her deposition now as far as getting mr taylor's mind at the time of terminations it would be easier maybe to get into mr taylor's mind about it had he spoken to before the termination decision was made ms jensen has been adamant that she didn't even know that they were the problem existed she didn't know that she had been terminated actually terminated the day before when mr taylor called her on august twenty seventh to inform her for some reason that she was on a three day investigative suspension so if if there was an investigation that went on ms jensen wasn't any part of it and frankly that would have that would have cleared the entire thing up mr stanford testified that when he would he testify that he didn't actually remember what he did in terms of of an investigation in this case but he said that one of the things that he he would have done was talk to him to see what was going on but in fact as part of the investigation no one actually talked to ms jensen and i think that that something else is going on because even mr stanford said that when i would have that would have been part of my would have been part of my investigation to talk to ms jensen and and he didn't recall whether or not he actually had with ms jensen recalls very well that he did so unless the court has any more questions i see that my time has expired thank you counsel thank