review board and each concerns a failure to apply a fundamental principle them point of law in this circle the first is a failure to hold that the complainant bel and they said that's not why she was fired right that that was a pretext so where is the intervening event the the intervening event that's correct that's what the l j found the intervening event was her appearance that day and her what the human resources director term to be her erratic and to watch my favorite you know they said it didn't happen that way so i guess even a little there it i guess i'm just sort of following up it seems like she said there was no intervening event as a matter of fact matter of policy a company that the size of someone who is extremely disruptive and causes problems with within the employee structure should not be fired if she determine that that's a bad policy but here it seems as if if she had found that there was that type of activity she may well have agreed with a personal decision but she has that those facts never happened that there was no disruptive behavior that the person was exceedingly polite  but the problem is is that she didn't say that those facts never happened the administrate wanted which she did say is this and this is both the government the interviewer say this in their briefs but it's not so the l j did not find misquote right the human resource at the trial rather in the l j own words and her opinion she quote listened to the tape of the october twenty sixth meeting more than once and quote and concluded quote i do not agree with what rights characterizations of actions on the over twenty six books that is the i couldn't think of a better example of the prohibited second guessing that words are that in which courts are not supposed to engage she didn't say i don't believe it happened i don't that that is why i say that that particular part of that that is an error of law rather than a substantial evidence moreover i just before you go on so i'm sure where you are there's no doubt the events in this case or certainly out of the out of the ordinary but as far as that intervening event do you agree that chain it was the conduct and again this gets back to judge harrison's point about three times there was no evidence of her what there was was second guessing of human resources person with sixteen years of experience by a judge and that type of second guessing but so if we end up waiting into the facts i do have a question about that really and i think your position is the intervening factor with some combination of her showing up at work that day and also house doctors i was correct as to showing up that day wasn't completely certain what the basis was my understanding was that ms gunther had said that she was noticing her paycheck had been she was getting paid any more he was going to retract it and separation agreement was agreed in principle subject to negotiating final language there was an email then on friday october twenty third there's gunther told her lawyers that the agreement that had been negotiated by them was unacceptable use that agreement in principle not yet fifteenth but my point is why would they start taking the money out or even stopping the pay until you have a signed agreement because i can't i can't say why the negotiations between deltec and her counsel at the time proceeded the way they did but that's what how i work but how she that is your proceeding that the idea of her going there that day was legitimate i'm not conceding that because of this so on friday after over twenty four when she draft of this new agreement instructed her w and says i'm showing up monday morning at nine o'clock on the next the next day sunday the general council sends an e mail to miss gunther saying don't come to work monday morning at nine o'clock we can't talk to you you're represented  say i don't have a text in front of me but it's it's it gets on page one seventy three of the joint appendix but he did tell her not to work in any of that obs your position was supported by the tape indeed there were contradicted by the tape i mean i just keep going how is that subset this line between substitution of judgement just a factual finding which is not telling the truth seems so fuzzy what she's talking about there and i think if you read the entire record you can see it but she's talking about there she's saying well i don't hear the human resources director saying that this country was being aggressive or so mot i don't hear well the whole point of the no super personnel department rule is that judges who are not on the scene even if they have a tape shouldn't be substituting their judgment for the human resources director with experience and personnel and i just tell you my concern about this and maybe you can address that and we do charge algy's with looking into other explanations offered up are pretextual and if they can't say what you said she was yelling i'm listening to the tape i don't hear any yelling but doesn't the whole pretext in korea just what's left of the pretext and great under your understanding of what counts as she said she had a point with ms court right which she did not she refused to sit down this is according to the evidence she stared in this court right secretary for twenty minutes made her uncomfortable and scared her then in the meeting with the assistant general counsel and miss work right was extremely aggressive kept saying do i have a job and was assured she did and was told by the assistant general counsel that he felt uncomfortable talking to her because she was represented by counsel then when she left her husband who was videotaping this whole procedure he was outside they parked their s u v hummer in front of the building walking the entrance and he was there is no evidence that the hummer were blocking traffic i just feel like so much of this is just the wrong in any that regardless of the exact position of of the hummer this was the the miss court right the human resources director saw all this from her window it was very short distance that was her perception and it was her and they were keep her laptop while they held her job but when she got a lawyer they said you have three choices you may have your old job back you can apply for a new job within the company or we can negotiate a separation time all of these things run entirely contrary to the notion that the firing on october twenty sixth was pretextual rather it all points to the fact that it was her conduct on october twenty sixth that was the sole basis for the termination they didn't fire her in the spring of two thousand it struck me that this was basically a recitation of a chronological order of events basically reduced to the sox complaint was f there was more steps in the process then then i think the two that you identified and each one resulted from the other and it was the u s chain that started with her complaint internally and that was also the f c c followed by her that her car started that day so she could get the work it was a continuous the chain of events that started with her to complain and one of the following steps resolved and then the next step is all that again it's a you participated in some protective act and then you were later terminated you've proven causation here it's a contributing factor standard and  the court basically just a quiet or cause standard saying well because of all these other things happening she hadn't gotten fired she hadn't found these alleged improprieties then none of these things would have happened and she would have been there that day i think there is that really the right way to look at the contributing factors and it would seem to me under a buck or causation standard even if she had come in there that day and started a fight with someone it still would have been the original complaint would have been a above or cause even if that was to show by clear and convincing evidence that it would have terminated the employee you know without regard to the adverse one that regards the protected act if i may address the substitution of judgment point that counsel raised earlier and say don't come in and another factual point with respect to the breakdown in settlement negotiations when miss gunter rejected the settlement agreement she specifically told her attorney that she would be going into the office on the twenty third so whatever agreement i don't know the circumstances of the sudden negotiations but she made it clear to her attorney that she was going in and she gave notice twenty four more than  we have to determine that was an arbitrary gracious act on her part without any substantial evidence in order to reverse it i mean to to reverse that determination it's not win on the upper part of this release with respect to the alleged disclosures i don't think to be a good word need make any broad determination with respect to that i think what the l g a out there with that that the return sion of certain documents was crete in her causation argument the reason for that is clear in reeves controlling supreme court docket in title seven pretext evidence of pretexts can also be sufficient for evidence of causation in fact evidence pretext can satisfy the higher burdens of proof in a title seven kids so if this was a title obviously if you can meet a title seven burton you can absolutely be a sox for second the question about whether this is a per se it's this case is unique on the back and on the x tied into the sox standard it is essentially is a per se case not per se as a matter of law but per se as a matter of fact why later current does that prove causation now but in gauging in sox protected activity shortly before the adverse action does that issue resolved in a settlement it fell apart so that the issues of the f c c and the protect activity and the collapse of the settlement all occur within a very short period of time of a return or proceed is simultaneous protected activity day by day an adverse action shortly allwine protected activity reaches causation for the lower burdens of settlement coming back to work that the lower standard of causation is met in the sox because it's occurring simultaneous so i think that's what the judge was pointing at maybe she didn't dissect but i think the judge looked at it and said that osha perceiving was a protected activity everything she was doing in it was protected her rejection of this item was protected  and basically she got fired because the settlement of her osha proceeding collapse it's all it's basically instantaneous it's one thing i think that can be implied but she didn't say it because she didn't to say exactly she came very close to saying it but she didn't have to say because under the lower standards of socks it's only contributing factor and congress and the president are so clear that the timing element contributing factor is much more probative than in a title seven discrimination on the issue of her not wanting to return to work that is  costs at the end of the day they're arguing we told her not to come to work i e there's some animists there they don't want her to come to work they're saying but read the e mail on october twenty sixth on j one seventy three if you come to dell tech us and say don't comment says if you come so she shows up and they're angry what could be clearer in terms of and and causation so they make up excuses to fire her it's about as clear a can possibly get in terms of a discrimination or retaliation it all person one day and it's all right before your time runs out let me ask you about the front pay damages at the time she were point of or rebuilt she was an individual entry level pipe employee who was working to be a financial analysts as i understand it was attending a community college on some basis it's not clear on the record but she gets a front pay a ward of four years without having to work and full payment or college for that to the extent of it which seems like a pretty good deal i'd like the sound of that what's the basis in the record oth speculation to make that award ok first off four years or from pay is not out of the norm in when it judgment a court awards from and usually go up to ten years and be but there has to be a basis in the record cited for that and given someone the opportunity to attend college full time seems to be a fairly novel reason now the judge found that she was unable to find a comparable position in the judge's analysis the judge found that she got the job but dealt probably you know as an anomaly she was supposed to be a college graduate holding that position so she got a job that generally requires a four year degree so but she has now she's lost that job she's tried to get comparable employment she cannot yet so what the judge says is if she stayed had i can go back and look the records very clear but they had a tuition reimbursement program and they were permitting her to pursue a degree i don't know if it was two or four but the record i think is very clear of that's that's part of the problem i have with but the images of course have an individual who is going to community college which is a great thing but we don't know from this record whether it was one course or semester one or c year what it was directed to and how to translate the four years towards a bachelor's degree and by the way i don't have to work which i was doing at that i was employed by they'll tax and i get paid in full what the judge did was she said a four year degree going if you go into college for remember the position for which she had been terminated generally if not always required a four year degree if she's giving up reinstate she well as we know she has the right to remain statement to a comparable position that required a four year degree and the the her when she applied for the job it said that in the papers you need for your degree so all the judge is doing is using that fo degree four years of front as a benchmark a reasonable benchmark to justify what is often a hard to figure out how to justify front war i will state that it's totally reasonable and i think on this record it is there's only two ways ms gone through get a comparable job which is her right one she gets a four year degree paid for by front i'm sure ms gunther will not object to that but i will state for the record her reasoning was sound based on substantial evidence of the need for eight or year degree to meet that criteria for comparable who counsel has said that as far as most lation is concerned that the separate proof pretext is sufficient to establish causation you agree or disagree with that disagree or that there's nothing in a lot of work that sort and certainly not in the sarbanes oxley and as a matter of evidence this notion of settlement process was somehow part of the sarbanes oxley protected activity is also wrong after an extensive investigation that there was nothing to her allegations of conspiracy in the belt that had somehow violated the law by conspiring to not pay part of its funding and that investigation was conducted by general coun which is when there's a gun for a client for a job she applied for it this is in our brief the main breach of page eight with citations to the record she applied for senior financial analyst but they determined she lacked the necessary background so they offered  both the government and the intervenor want what on fairly an employer dealing with employees whom they view as a safety and that's what we have here and that is particularly troubling called whistleblowers privilege we fully briefed that well you may make a good point there but the l j also stated in her opinion that even though things seem kind of bizarre happens to the pretexts engraven going to be enough any time someone gets fired for someone to say i was scared and they are a district court judge can't look behind that because then people can fire people for any reason they want and say in this day and age i was just place in town returning to work remember her husband was accompanying her videotaping with a good thing she needed to keep right because the a l j found out that everything that h r director was saying was contradicted by the teeth so it seems weird to falter now for thinking she might need a record well i would say that the o j did not find that everything was contradicted with the l j said specifically her opinion was i listen to it and i have a different view that's what a lot can ask one other question regarding the after party evidence on the confidentiality of documents it's your position that the records were that the sending them to her personal e mail was a violation of the policy or the fact that she disclosed to the i mean they shared an e mail account but the policy itself states it says that employees have no reasonable expectation of privacy and he deltic information whether stored on deltec by your equipment or personally owned a quit so where is it in the record of regarding a policy that employees are not allowed to work on dell tech business on their home computers or in the home system that seems to be what we had op as it was sent to a personal account as perhaps policy  people may do so is it that act of sending her a personal account or is it just the fact that she put it in her lightly it is specifically protos specifically prohibited that you're not allowed to take information from the deltec system and appointment will be documents will be on personally owned equipment on because it's a it warns them they don't have a reasonable expectation of privacy in that rather than saying it will never be on your personal computer anyways we don't need to get into it so i certainly gives me the strong impression that bill to allow employees to put stuff on their home computer for work purposes and dell tech may well have but the point being that it was it was taken without authorization and was close the third persons her husband and others outside whether it was in the including the f c c so yes i agree with your point with regard to what you think that disclosing to the f c c is a violation even in through this complaint process not i would say yes  and that's that's broader than even decisions within the department of labor today i guess it's hard for me to see how it can be otherwise like if you had a company policy that said can't tell the f c c if you see us doing anything wrong you couldn't turn around and say well that's after acquired evidence it turns out she told the f c c so how is this different ok it's different because well first of all what you what your honor just said is in fact was the subject of an s e c regulation that came out a number of months ago and said you can't that's exactly the sort of thing you can't do you can't tell which came out the f c c said no you can't tell them they pay the f c c comes they have to cooperate can they provide them with documentary evidence that they that is that regulation did not go to that that had to do when you than an employee in the company was using a shredder that can't be the basis for reasonable shredding documents that were relevant to her where no she didn't know them i just writing documents in theory in the record that she said that the documents that i was interested were being shredded and both coun been copies but it wasn't just any old i know that's not true documents were being shredded there was no investigation there were documents having nothing to do with what she was concerned about and the algae found that their job found that the documents that were being shredded did not finding that there substantial evidence for whether we would have agreed with that or i that plaintiff thanks the documents relevant to the claim are being destroyed th face will come down a