eighteen times one four four asked about garcia versus professional contract services incorporated thirty years after that he was employed by the respondent in this case professional contract services company for a period of ten years before his term a nation appellant brought this action for a television of the false claims act twenty  c section thirty seven thirty seven h one after he was terminated for engaging in whistleblowing activity reporting suspected fraud the government opponent appeals from the order  district court granting summary judgment in favor of respondent based on the court's finding that there were no issues of material fact my claim raises two issues on appeal the first to the district court apply the wrong standard in a value weighting the evidence submitted in support of my client's claims and secondly that appellant meet his burden of establishing a genuine issues of material fact such that response motion should have been denied appellant's brief spells out why the answers to both of these questions yes and i would like to take this opportunity to discuss these issues further first with regard to the standards as noted by this chord in us x real king soul they pharmaceuticals this court applies mcdonnell douglas a framework for false claims act anti retaliation claims under this framework the plaintiff has the initial burden of establishing a prima facia case of retaliation this is done by showing first that the plaintiff engaged in protective activity second that the defendant knew about the protected activity and third that the defendant retaliated against the plaintiff because the protected because of the protected activity if the plaintiff establishes a prime aphasia case then the burden shifts to the defendant to  forth a legitimate nondiscriminatory reason for its decision once the defendant if the defense is able to do that the burden then shifts back the plaintiff to demonstrate that the defendant's reason is actually a pretext for retaliation now here the protected activity and this was there if you look at solvay solvay apply the but for standard to the third prong of the macdonald douglas test after already stating in its analysis that the burden had shifted back to the plaintiff after the defendant stated that the plaintiffs were terminated for creating unapproved marking materials in the plaintiff's admitted violating defend its marketing policies so in seoul they the court was sort of a friendly question no i that's our argument here on earth and and this court has in fact looked at this and separated the two in a couple of different circumstances and if you were to just district court yes we did your honor they the there are two arguments that weren't set forth specifically in the pretext argument in our opposition but they were addressed and discussed in the in the brief and that is one the fact that prior to client being given his final disciplinary action report requiring him to go back and look through his contracts he had already disclosed the two issues with regard to twenty seven fifteen line eleven through twenty seven sixteen line eighteen the other is the argument that my client was harassed by keith walker after he engaged in a whistle blowing conduct on april twenty fourth two thousand and thirteen and that set forth the record hero it's our way to six nine five line thirteen through to six nine seven line six and then to six excuse me to seven five one line sixty three to seventy five to line thirteen so the other two are there's a couple of other cases where this court has actually distinguished between the prime the facia showing and the subsequent analysis regarding pretext in which the court applied that but for standard although the court has not expressly held one way or the other it hasn't fact said that under the third prong the pretext prong we're going to use this but for standard having already gotten through the prime aphasia case that was solve a for one mr freeze we is in your view has our case law on the circuit definitively weighed in on one side or the other the circuit split well i think the court has not come out and said we are going to adopt this rule but the the the  that the court analyzed this issue in solvay and strong versus university hospital and even in shackleford indicates that there is a separation here if you look at it strong the court finds excuse me that the defendant in the lower court had conceded that there was a prime aphasia case and the court went on to then look at pretext and it distinguished between the standard for private facia and for the bu for standard and said because strong cites and relies on the private facia cause ation standard she does not actually argue that she needs the but for standard so the court's recognizing here that these are two separate standards the being just that putting forth enough evidence to shift the burden to the defendant and she would maybe we've implicitly done it without explicitly saying so yes right i think that's the case and for the court to district court to rely on solve a as holding that the but for causation standard applies to the prima facia cases is simply not an accurate interpretation or application of that case finally and case that say that's all that's required on this initial step if you want to show but for causation on the pretext you have to show significant significantly additional evidence in order to get over that hurdle shackleford after the burden shifted back to the plaintiff to show pretext the court so that she would have to show that she had not been fired but for engaging in her protected conduct in these cases against support the different timing issues they'll dress kind of the the first one first and that is when did the whistleblowing conduct occur and then as a result of that what could be the retaliatory conduct and as we set forth in our reply brief there are instances in two thousand and eleven two thousand and twelve where my client reported that certain cleaning was not going on specifically with regard to the parking lots a job five sixty and we're not presenting that as evidence as with of whistleblower conduct that goes to show that eric wrote us was a comparative or a similarly situated individual and it goes to his history of work violations for purposes of the appeal we have the april twenty fourth two thousand and thirteen email to an issue or source america that was subsequently forwarded to mr barbosa and then subsequent discussions that my client had with miss robinson who's the general counsel for source that's just one of the pretext arguments we have a bunch of other evidence going to pretext which i would like to get to but we have the disciplinary action report and how that goes to pretext then is the disciplinary action report is based on november two thousand and twelve review in which my client was found to give an recommendations in terms of how he can be better accountable and if you look at  that warning the written warning it indicates that his performance in terms of managing jobs is excellent the only criticism is that he sometimes isn't prepared for corporate meetings  my client testified that he discussed those issues with his supervisor keith walker and they were resolved they were then carried down into the april ninth disciplinary actually which was his final quote unquote final warning and he disputed that not only the issues involving the november two thousand and twelve review but he disputed the other issues that were set forth in that disciplinary action report as not being a valid basis for displaying and certainly not for issuing him a final written warning so when you're not when you're analyzing pretext one of the things that the court shackleford looked at was the fact that the plaintiff in that case had contested the disciplinary action which we have here with our client as well and the subsequent actions that you have a pretext are the harassment by mr walker you also have the the dissimilar treatment of my client and mr wrote us and the clerk also erred in evaluating this portion of the test that the district court at our away three want to wait cites t leave versus kansas city southern railroad railway for five seven four f third two fifty three and in that case in dicta the court states generally these list of things won't suffice for purposes of pretext however if you look at this other set of things that might work and so the court looks at the set of things that say these generally don't work and says ok one of those is that you have similar job titles or you're in similar divisions of the company and mr roach us and mr garcia were in different divisions so that closes the analysis and that's simply not the case to court  we kind of it's not it's not defined as a test but essentially it's a test and if you look at the case at page two sixty the court says the employment actions being impaired be deemed to have been taken under nearly identical circumstances when the employees being compared have held the same job or responsibilities share the same supervisor at their employment status determined by the same person and have essentially comparable violation histories and so you look at those three things to find out if they're nearly identical and we've got the case where the court just says different divisions because mr wrote us at that time had been shifted over to the hospital division but if you look at the evidence the duties for mr wrote us and for mr garcia remain the same for mr garcia as a senior operations manager and mr wrote us as in his position as the medical director a way to six three six line eighteen through line twenty four as well as twenty three to line twenty through twenty eight three three line six so it's your position that there's a fact issue on whether th situated absolutely because i think the court did not go through that analysis is needed to the other the other examples that we cite to with regard to mr wrote us include the fact that they did have the same supervisor and keith walker and that they had confirmed comparable work history violations and so we have an instance here which going to your timing question your honor is somewhat interesting in that initially mr wrote us was not given any sort of disciplinary written warning related to the fact that job five sixty had been cleaned and if you look at the evidence we submitted in the declaration of marotta he says he conducted an investigation to determine when it was that that job five sixty the location six stopped being cleaned and determined it was almost at the outset and that was done at the direction of mr wrote us and in fact the close of the customer in that case had taken the key away from location six so it hadn't been cleaned for years so mr road as was the one initially who was responsible for the the fact that location six wasn't being cleaned and he's not given a warning then subsequently after my client engages in his whistleblowing conduct and i on april twenty fourth mr otis is in fact given a warning and it's not anything to do with the fact that he failed to properly supervised five sixty when he was the manager it had to do with transitioning the contract to my client so we maintain that that's also an additional nonprofit in central texas what it does is it employees disabled individuals to work on federal contracts specifically federal contracts such as custodian and grounds maintenance on government property straightforward case of the burden of proof on causation mr garcia simply did not present evidence to meet the burden of proof but for or to the lower court whether that's at the time the facial stage or the this circuit that you have to do the back for at the promise well your honor what we believe at this point has not been established by this court what if we continue to require the problem of face so you think it's open your answer that if we have examples of cases where we continue to apply the but i mean the problem of facia without the but for post nasser and we have a number of those cases when that tell us that we actually don't do that  that focuses on the pretext state as opposed to the private facia when we also look at the other cases the focus is on pretext so there is no in fact what the fifth circuit has said at the latest of two thousand maybe that's not in the brief so i apologize for putting you on the spot that research so that's ok you don't have to answer ok but i'd love to your honor please tell me a little bit about that case let's go on to something that you briefed and so we won't we won't bug you down there ok but did you wave to prime the facia argument by saying all you have to show is proximity one time no your honor that has not been waived what official case in some circumstances with that but he never weighed the argument he never said waiver he never conceded it and certainly the court never took it that way because i thought there was said the only thing we're contesting is this isn't that mean that we're not contesting of this other stuff no your honor mr gregg never said the only thing that we're contesting what he did say and that's in the record three point one nine seven is he responded the fifth circuit standard that very close proximity can in some cases he said get you there in terms of privatisation retaliation what the court has said time and time again is that in order to waive any argument it must be clear what  and certainly there was never ever in the record mr gregg saying that it has been waived he was just reciting what the court has said let me get back to the private facia case if the court doesn't mind i'd like to talk about that a little bit further which is this that the majority of other circuits and we've cited them in our brief the first circuit with the case going to really really host the third circuit with the case vermin versus university of pennsylvania the seventh circuit with r reasoning makes much more sense in the minority of other circuits and here is why what the courts have always said is that the burden stays with the plaintiffs we don't know and it is certainly been agreed that the causation standard for retaliation is but for it really makes no sense that the causation standard would be different at the prime of facia stage what would it be something like motivating factor and then case is about verses the pretext stage remember at the prime of facial stages it's all about proving a circumstantial case how do we prove a circumstantial case and what it's supposed to be is it's a lighter standard at the pr but you must prove all of the elements of your case that's what mcdonnell douglas says in order to get to the part where the employer provides their defense and then that can be rebutted what has been conflated by for instance the fourth circuit is the idea that because there is of lighter standard at the private facial stage that that somehow means the but for causation is not the standard causation is always the standard  less a lesser showing and perhaps quality and quantity of evidence the prime aphasia stage but we can't change what the causation standard is the standard is the standard and it remains throughout the case in order forward with the defense the plaintiff has the burden as it always does to show they have got the elements of their case it's a light showing at first but there must be a showing of but for now once we get to the later stage remember pretext evidence is not simply causation evidence it is rebutting what the employer has said so it conflate what these two stages are in two ways first to say that just because there's a lighter burden that that means of the same it's always but for and second it conflates the idea that these are exactly the same types of evidence they are not one is simply but for in a vacuum the second is  what the employer said and so those minority of circuits we believe are in correct and the fifth circuit should follow with the majority of circuits have said now here and i think importantly we're gargles of what the court you said it has been met have not been met thank you your honor now garcia himself at mit that he would have been terminated anyway on multiple grounds including his alleged disability taking time off his disagreement with management on how to implement new programs out the record eight thirty two when we have all of those admissions in the record a various reasons why mr garcia himself says that there's not but for causation the little court properly found even under any standard that the prime official case could not be met that like to talk a little bit about timing as the garcia has to show a cause so connection is proximity in time the fifth circuit says that up to four months would cause could cause there to be an inference of proximity of causation from proximity in time here we're dealing with about seventy six days i think the proximity point gets him through the primary facia case is that an accurate quote i mean i may have stumbled over a wire but is that did the person i doing on behalf of your client at the hearing was it wasn't you was it it was that think so at that yes ron i believe you're accurately reading from record site three one nine seven yes yes and what i would say to that is looking at all the context around that your honor that's simply a recitation of what the fifth circuit law is that in some cases very close proximity can get can get you there  now here it is not because of all the admissions that i talked about negating but for causation when you say there's all these other reasons that's not enough in addition the fact that mr garcia admits the circumstances leading to his terminations i'd like to talk about that in terms of the timeline now important date to keep in mind here is april twenty fourth two thousand and thirteen mr fees because opposing counsel agreed that's the first date of any protected activity now importantly this isn't a case of a good performer who after a complaint somehow we call about performer it's undisputed here that all before the complaint mr garcia was on a final warning he was on the razor's edge of terminations and when we get to the pretext evidence in a moment you'll notice that all of that evidence your honour's deals really with things that happened before mr garcia even complained like to point out something else to the court the decision maker in this case is carol shubert that's undisputed anything it's not tied to mr schubert who really made the decision to terminate here lower court properly held is not relevant to causation now you'll hear a lot of talk about keith walker that was mr garcia's direct supervisor he did not make the decision to terminate if he did not make the final decision did he give input to the decision maker it any time about the performance issues that form the basis for the performance reviews there is nothing in the record that he influenced the decision your honor the ultimate decision but also the leading up to  performance reviews well your honor and that's an important point to make remember all of the leading up to decisions including that negative performance evaluation as well as the dar cannot be retaliatory because they're all before it will twenty fourth two thousand and thirteen those are not subject to attack so regardless of what type of things that mr walker did with regard to negative performance evaluation or that dar they're not retaliatory admit it because in prior to the complaint can you help me about whether or not the saying that he had mentioned that they hadn't been combed cleaned before that right so it wasn't so he had revealed that that part of the leading up to the complaint it's not yet saying what's a big because you're taking money but it's no doing the factual predicate for the whistle blowing well your honor what the record states about that i'd like to point out a few things that's why the timeline is crucial here because the usual pace of what you're talking about makes a lot of sense but you're on the razor's edge all after the protected activity but here we're on the razor's edge all before the protective activity that's what i'm trying to test that proposition sure because the protective activity was not perhaps just the final report but he said this is blowing but tipping people off that he knew that that had not been cleaned never ever made what was said and it was just said here by mr fees b is april twenty fourth two thousand and thirteen is the date and i'd like to point out that's always what it has been at the lower court level your honor for we look at what make that argument they did not they never said the protected activity was this idea of tipping off on the job six sixty no your honor what they said in their petition at record nineteen was the first time was april twenty fourth two thousand and thirteen but they said their discovery responses to nine one five two nine one six it was april twenty fourth two thousand and thirteen what they said in their deposition record two seventy nine record to six six nine is april twenty fourth two thousand and thirteen importantly what they said in their m s j briefing specifically plaintiffs first reported his suspicions of fraud on april twenty fourth two thousand and thirteen record two five seven five everything before april twenty fourth two thousand and thirteen is known for tallaght henri that's all the things that keith walker did with regards point keith walker is mixed up in it right so if he if those are tipping off about the contract his retaliatory comments would be part of the activity that i'm talking about the a legit fake payment for the fake job in the mix of that for that person point action your honor or is he in the mix for if he  no your honor he's not in the mix of that i would say and really what the record says your honor is that mr garcia actually says that he believes that these were all being cleaned when he was asked this isn't the record nine twenty one and you understand it was your response ability make sure so complies with the contract he says as far as i knew there was full compliance with the contract and so what the record shows your honor is that what was believed by mr garcia was that there was full compliance with the contract what's also important here is that if there was not full compliance with this contract six sixt performance evaluations came after the protected activity so they it's a different it's not on the razor's edge like we have here also the evidence that they point to with regards to a of the negative performance evaluations remember those are after the protected activity here it is not so it's not retaliatory but the fifth circuit has said time and time again is it just because you disagree with employers assessment of your performance pretext you have to show and what it says in the case of little is management does not have to make proper decisions just non retaliatory one that's important because if these pieces are non retaliatory based on the timeline it doesn't matter that he disagrees with them unlike in shackleford because that just means he doesn't like what's employer did we're talking retaliation not a disagreement with performance assessment let me spend a moment on mr wrote this that's for other evidence and i'd like to say these issues of garcia disputing his final warning and wrote is a comparative or are both evidence that relates to things prior to april twenty fourth two thousand and fourteen the evidence about mr rowe this is all about whether he got a disciplinary action form based on this a job five sixty the final warning comes before april twenty fourth two thousand and fourteen and whether or not what the discipline related to that is all prior to the protected activity so it can't be retaliatory this court has said in the lead that you look at the time of the adverse employment action issue the only adverse employment action issue here is the term a nation at that time everything that happened that road is the final warning had already happened prior to protect activity so it simply does not make him a proper compare a tour there's two other pieces of evidence  offered on pretexts first is about the access issue to job six sixteen we already talked about that at length and it deals with keith walker not the incision maker the last piece is that mr garcia says he was harassed again by keith walker not by the decision maker and the evidence also shows that he specifically says that that has to do with his disability nothing related to retaliation there just simply isn't but for causation here the court promptly found that both of the prime aphasia stage and at the pretext stage and the court can affirm either basis and we ask that thank you thank you you may proceed with your rebuttal argument your honor yes you did highlight for me the transcript that i was referring to with regard to the waiver with regard to the prime official case i'm a little could be satisfied by showing simply temporal proximity and i would submit that that it's either about for a test or it's not the court has indicated i believe it's in the in the long case what must be shown in the pot for context in order to satisfy that burden it's long versus eastfield college eighty eight and third three your that's my question no i'm sorry no no that's i don't think that's the case at all for the same reasons that we don't think that that they would prevail on the third palm frond the pretext in front of the district court so they think they win either way  actor and when you're looking if you addressing a point that the council just made when you look at the leak case you're looking back at prior negative history the leak case actually went back prior to the protected activity in that case because the basis for the term a nation were two prior warnings that he was given in one case the conductor missed a railway signal on the other case he didn't get permission to continue operating in the railway something to that effect and so in that case there was a similar actor who going back that same period of time had those prior instances of this conduct at the time that the plane to flee in that case was terminated the other comparable actor was terminated but reinstated which was a procedure that the company had so there was disparate treatment there but again they looked back prior to the protected activity the leak case talks about the fact in amount of time i have one extra minute and you may believe case talks about the fact that it's the same supervisor it doesn't talk about the same decision maker other cases say well if they don't have the super same supervisor if there is the same decision maker then that is sufficient ok you need to wrap it up now thank you