good morning or honors me please the court my name is john della i represent the appellant walter engelhard in this matter buckholtz did not know that mr engel heart was back working at century link before he received the e mail i say back it century link because mr mr engelhard was fired three times from century link which also includes qwest there was a corporate merger one might almost think there were towing with mr engelhard this case involves mr engle hearts claim for p nextel serves various serves and i as an independent contractor to various clients right what what was what was is there anything in the record about the expectations of either nextel or or mr engelhard as to where he would work when he was first when he persuaded when he when he was hired as a as a technician by them i know from talking my client that you've just applied for it to him for a position a technician position with them i don't think that's in the record and he did not apply with the understanding or expectation that nextel would assign and century show you the record does not establish or even address whether he was he was hired with the expectation or understanding that the next tell would assign in the century i think that was the understanding but i'm not sure how much that's in the record but the problem the when when when next is there and there is it in the record on the decision of nextel in august of two thousand and eleven to assigning the century he was so i think that was assign which line subject to approval sure but as for the this all goes to where particularly the joint employer issue but up but it's also i think relevant  to the circumstantial evidence of retaliation that's what i was going to say your honor is i think what happened in two thousand and eleven is he was formally accepted by a century link at that time and he was working we would say is a joint employee was the internal opposition had and presently had an percolated that's the word i was going to use your honor and then he did and then they said we don't want him why is he working here why is he he's on a do not hire list and then guess what after mr engle heart challenge that the company decided that he should have been on a do on her list and and that's all complete that th there is no link in that scenario though obviously so they f l as a preamble all of that could have been happened by by the development of a not for hire not for hire list based on the going on with your specter and this is going literally at the same time the lawsuit was being settled checks were being sent it was still very fresh issue where is the word to give me the record evidence of the  settlement well as i said there's proximity in time you know i don't think i doubt that there's anything else but i haven't studied the records well that appeared to be unlike the comment land link to the brennan lawsuit well two things approximate in time mr engle art was a very active participant in the lawsuit into the company essentially conceded that there was no other valid reason for him to be on the do not hire list and that they should have rehired him and not fired them or not fired it was there any evidence that the do not rehire list was created as a result of the brennan lawsuit no one knows he run but you have to have a little evidence don't you to make the link she has your honor but i mean what i'm saying is we assert that it was and they don't have a copy and can explain working for him and then they said we're going to not have the new do not hire list in light of your letter saying  retaliation i don't think your assertion is enough you might have some temporal proximity but don't need a little more than that i think the strength of the comments that i just related that no one century link will have anything to do with wall t's an e mail that was accidentally sent to mr engelhard he was accidently copied on it  a appendix page two three six three seven and it's an email from the centrelink employee named rich nelson to someone named the heart was rehired again as a contractor and terminated in the basis for the terminations the final time had to do with low productivity that he was taking too long to make calls or to complete calls or not getting enough of them completed which has a facial logic to it that that that would be a legitimate basis for terminations what's the proof that that was pretextual to go back to some prior dispute with him as opposed to being a current valid reason for an underperforming employee  don't have very much time left so this is the crux of the case which is you know was there a pretext and the basis for argument that there's protects your honor is the e mail  attached or included on page ninety four of the appendix and what happens is mr buckholtz copied on an e mail in the e mail says we're going to review concerns address it and investigate and bucholtz who wasn't asked for his direction or opinion jumps in and says within sixty seconds send him home dot dot dot and that departs from any practice or policy or typical procedure for the company in the employees involved there's no evidence in the record that mr buckles ever did that with another employee that he that he terminated someone within two weeks of the was involved in terminations at all and certainly that he would jump in and cancel an investigation there's no reason to cancel an investigation for a brand new employee why not look into what's going on and he said on the record that it was not his job duty to terminate technicians that he didn't want an investigation and i think that  good morning your honors may please the court i'm beth carver for the defendant centrelink and mr buckles both of whom ask that the court affirm the grand summary judgment in their favor i think there are a few misstatements from plaintiff's opening argument that i probably should cracked up front and i think judge locums questioning went to that i heard plaintiff's counsel refer to him as a new employee in two thousand and fifteen i heard references to mr buc firing him it wasn't an employee employer relationship it is for purposes of that we're not arguing that he doesn't have standing under the afa but he wasn't terminated by centrelink or by mr buckle because i think that the plaintiff is relying on centrelink treatment of its own employees and contrasting that to its treatment of mr buckles who was a contractor and he says there's no evidence that they ever sent another employee or mr buchholz ever no evidence that mr buchholz was ever involved in terminating an employee as he was in these circumstances and mr buchholz said he did say he didn't get involved in terminating contractors because it wasn't his role he wasn't in the role of employer to contractors but he did say that he had been involved in sending contractors home on a number of occasions so i think that is an important well i can explain why the two thousand actually actions weren't aren't evident he doesn't have an ounce of pretext with respect to thousand and eleven either this court has decided last month that to prove pretext in retaliation case the employee has the plaintiff must both discredit the asserted reason for the adverse action and show that circumstances allow a reasonable inference that the real reason for the adverse action failed to identify that centrelink failed to identify any contractors who were sent home in two weeks that mr buckles send anybody home unless after having been on the job for less than two weeks or other contractors who were sent home for completing a few jobs as the plaintiff did that centrelink mad its burden here when it came when it proffered its legitimate nonmetallic to our reason for standing plaintiff home in august two thousand and fifteen and that was his poor productivity and that he was calling other he was and his own records of the jobs he completed matched up with mr births calculation nor of the otherwise demonstrated any issue of fact that would allow a jury to decide that centrelink actions its proper reason for sending him home buchholz didn't have all to meant authority to make those decisions it was within his purview and he did make decisions to send contractors home and i think it's also important to remember that the whole process started when the mr berth who had immediate supervision over the contractors in his area he was responsible for for supervising them that wasn't and next level of responsibility but he had contractors within his area and he noticed that the plaintiff's numbers were very low so he checked it out he ran the numbers he showed them to his his contemporary mr bosler men and they both agreed that he should be sent home so the initial him you know he's not contributing to our workload we think he should be sent home because mr berth was new to centrelink at that point you know only been there for a few months he sent the email to mr fry who was his immediate supervisor mr fry reports to  mean and mr buchholz was copied on that email and he said send him home and another thing that that removes any suspicion from this is this has happened at a time in august two thousand and fifteen min centrelink was crazy busy and they needed contractors and they they hire contractors who are already technicians they don't do training for them these are you know they go to a contracting agency a service provider and they give me some service said send him home and plaintiff hasn't come up with anything to show that that was that there's anybody who did not engage in protected activity who was treated more leniently than he was he all he has is this anecdotal testimony of his friend charlie how and it's important to remember that mr howe was never an employee of centrelink he was a contractor for centrelink off and on over a five year period through m p next level so he doesn't have any institutional knowledge on the part of centrelink as to the reasons why employees are contractors were terminated all you know is what he's heard you know just the grapevine and it's necessarily incomplete because he's only worked for the one contractors who doesn't know what happened with other contractors that were provided by other service providers so he has testimony and you have people who are sent home for low productivity but after having a much larger window than the plaintiff was given but he didn't offer any identifying information about those people he didn't give names he didn't give supervisors he didn't say how long they worked he didn't say what their rates of  completion so there's nothing that doesn't satisfy that similarly situated compared or requirement there's nothing for centrelink to refute we can't say i will know that person actually work for only two weeks and his this is in the record at two forty three forty four and identified fifteen contractors who were off boarded for productivity related reasons plaintiff came back and said well one of those people was he was terminated for  bother them differences in the man from year to year was where the practices were seals practiced with and kind of using contractors the same from two thousand and eleven through two thousand and fifteen the practice and was there any sort of structural change and in the use of the contractor from nextel another yeah i believe that the demand is always there and as you said it's seasonal is as plain of event as divided it gets as winter approaches there's a need for fewer technicians and and so there isn't as much need over the winter as far as their treatment of contractors that did change  you know if they're rolling out a new plan or new program or new technology years and like that that that could result in chickens has been where where would i go on the record who's deposition or have a day with what i read for the the structure of the relationship between century link and its various contractors and the union employees and the and the contractor technicians this kind of laying out a set up you're talking about these various people that that participated in the the sixty minute process being a different process than the new year treatment of the union employees technicians where would i go on the record landscape you're on i don't know specific page sites but there mr berth who was the one who started the e mail chain saying his productivity is really love he talks about the treatment of union employees being different from contractors part of that being said because the the union employees are they have bargained for rights so that you can't just fire them on you know after any certain period of time and i think mr fry's deposition is in there too and he probably talks about that as well similarly situated compared her case in that case one employee was terminated the plaintiff was terminated for declining performance and another employee he pointed out had just been reprimanded for it nurses founded something short of terminations and he used that to point out that the company's policy was not to terminate for declining performance but to and so he was treated differently but again we don't have a similarly situated compared or in this case  contractors for a bunch of reasons including low productivity quality work that kind of thing he also claims that it's pretax that centrelink doesn't have a policy for a set number of jobs that its contractors are expected to finish as opposed to it's union employees that mr berth testified that he expected both contractors and union employees to complete five to six jobs in a ten hour work day  and plaintiff's witness mr how does it say that there were a number of contractors that he is aware of or he believes were sent home for low productivity he just says they were given a longer period of time so there can't be a dispute that there is an the joint employer doctrine as it applies to that situation yeah i think that would be a question of state law and my members are a lawyer so i don't think you know i can't profess any knowledge in that area i'm sorry rebuttal first look in the case that i was trying to think i was a springer vs federal home loan case court it circuit there said the plan you just need to show it show enough evidence to raise a genuine doubt as to the legitimacy of the defendant's motive even if the evidence is not articulated reason i think the plaintiff was not successful in that case but it's it's just an example of the flexibility of what's required to overcome this last part of the burden shifting and pretext and i think it just a couple quick points the fourteen names on the other oddities you know mr bouck book called since his deposition was not familiar with any of the names except for the former individual that was discuss by counsel he had no idea who they were i just want to say also the court made a reference to a sixty minute decision process it was actually sixty seconds and when counsel went through what you know frye had had a phone call with birth none of that's really material because all that mr buckholtz had all he had was the e mail he didn't talk to anyone he had the e mail you know reference the page site but he had that e mail he took sixty seconds and that was just about enough time for him to recognize a name mr engelhard had a long intimate relationship with m the knowledge that engelhard head of that book called ted of the heart over these years turning into something that i'm out to get him there's no way he's gay we're going to  about retaliation buchholz has to get legal counsel i mean he knows who this guy is he's forced to concede that he can come back although he doesn't mean i think that's enough to create in an individual the idea that mr engle heart is you know a number of he does not want as his colleagues said to have any contact with as i said i think this case is dripping with retaliation a reasonable jury could easily find the retaliation we asked of the court