heyst number one six dash five six one four gloria marshall v the rawlings company l c at all or arguments not to exceed fifty minutes per side mr john christopher sanders for the pollen of against the weight of in our brief twenty pages of circumstantial evidence we point out just a couple of areas that this that the court made a mistake about the trial court said that that we only produced one stray isolated comment of smoking gun evidence concerning the motion of miss marshall following her her first f m l a leave in the summer and twelve in that moment miss marshall's called on the carpet after she has been working night and day to try to really to reduce the backlog of her of her work and  the supervisor by a supervisor many of jeff bradshaw says well we are you can be taking any more leave the trial court said it was just not enough buy in of itself and didn't ignore the context context is essential in cases which rely upon a chair chronology and rely upon circumstance and i think you are an issue just a way of thinking about the case so i guess i would say what struck me is maybe your best argument was this cat's and because it dealt with the reality that rowlings who made the firing decision didn't seem to know about the prior f m l a leave so you know normally for the employer that's pretty good because how can you say you're interfering or retaliating if the decision maker didn't know that so the idea behind cat's paw is that well if you have a deputy that makes the recommendation and the other deputy knows about in the adept at retaliat you know you can inoculate this by getting another decision maker so that's what's going on in the case but what i would have thought with what i'm wondering about here is the people that spoke to rallying they weren't saying fire her th i forget his name is not just the other fella elsner elsner goes it goes to rallies because he's concerned that there's been an allegation by marshall of harassment she says she doesn't want to pursue it but he's i guess he's protecting himself or following company policy you've got to report harassment so that's what he that's what i take him to be doing when he talks to rallying that's what then leads to the meeting in you know i know what kind of guy he is but maybe he was impulsive i'm not sure but do you get my question in other words you don't seem to have the deputy going to rattling saying we want to fire that's that's not what i think they say they say there's harassment that you need to look into and by the way we don't think their harassments justified but so that's why i'm wondering whether the catspaw theories applies assuming we apply in this setting i think the cancel pa theory does apply a liability does apply i think with the district court did it was used the honest belief rule to affectively negate the because of disparate treatment over a period of time much more is required of mr bradshaw or mister marshall than is required of other employees who are not similar situated and says you know when we should consider putting our performance improvement in though she still excel in her job but decides not to do it because he's concerned about whether it would be legal under the fat family medical leave act he says this and  it's the tip of the iceberg indicating his state of mind it may be his guilty conscience speaking we don't know but it's for the jury to decide whether to infer from that that mr ellison or was in fact bias and it's pilsner whose that is  scalds miss marshall says i want to meet with you she's already left she's too upset to work next very next morning mr rawlings meets with miss marshall they talked for five minutes and he says your allegations against this jeff bradshaw are false and therefore you're lying about my people i won't have won't have this in the course of the way we function this company you're fired that's not  all and he wasn't happy that she left without explanation the day before and there was a history of you know the long coffee breaks and all this other stuff didn't you know about that well she's recall now she's an exempt employee she's a salaried worker and she is very very productive the idea that she's supposed to be chained to her desk is not the not the workplace culture they're wrong and associates and so it when he suggests that somehow she's not doing enough work that just it's more evidence that  for evidence that elz nor bradshaw recommend it to rawlings that marshall be fired we're not privy to the conversation between elsner and rawlings you do depositions and ask them about the company took we took his deposition  what what was the answer to this question or did you ask this question the answer i think emerged later on in the course of what we heard from mr or miss marshall i don't think he ever admitted one way or the other as to whether he recommended firing i think it's easy it's clear to you can infer that mr rawlings only took the took at the recommendation of his subordinates because he only talks to miss marshall for five minutes he doesn't talk to anyone else in the business he doesn't talk to any of her clear that these folks have demonstrated their bias and then simply to say that mr rawlings didn't is protected because there's no evidence that the that he communicated see how you can respect both of them in this case i think you can respect the honest belief rule whenever there is actual investigation by the decision maker but the person who decides to terminate if for example if mr rawlings  said i'm going to meet with mr marshall then i'm going to meet with some of her coworkers i'm going to review her record i'm going to look into this for for myself then he will have formed an honest belief but he didn't do it on his belief as a result of this very short meeting with marshall where marshall says that brad was hired was harassing her and rawlings says no answers they can form an honest belief that's not what happened here miss marshall is an example exemplary employee she's making more money for the company than anyone else in her division she hasn't broken any rules but she's accused of harassment which is not of her making she is dragged into that or the investigative process which is used not for protection but is used as a sword in on him in which to attack her and that's that's not what it what currents modern h r policy is supposed to do we know that that under the lot of cases regarding sexual harassment beginning with vinson going on to farragher that if you have a fair h r policy that investigates harassment and unbiased situation that the employer can use that as a defense to accuse an accusation of harassment but you can't use it as a sword to drag her into up into a process which is not of her making which she tried to avoid multiple times she ever labrat and what the harassment was but she'd spoke the first time she mentions it she says jeff bradshaw harassed me at the meeting or the the luncheon usually in the context of you know some sort of protected class either race or sex so if somebody just heard that that's what harassment for taking at the mill a leave right she is she's being quizzed about a complaint she didn't want to make and so she's brought before them trying to get out of this process because she's fresh is going to be fired plumlee am i going to get fired no you're not going to get fired within twelve hours she's fired so she does she's not going into this present this presentation with a written documents which often have often goes along with  make the complaint process she's not going into it with any sort of preparation to explain why that what the motivation is behind the harassment she's trying to answer her question  is rolling supposed to find out what the nature of the rear as been is if she doesn't tell him she marshall doesn't tell him you know what we don't know if he had conducted an honest belief investigation the way he should have she would have had adequate time to prepare she would have been able to describe this entire scenario of events over a year and a half and explain why she bl believes harassment was motivated based upon her mental health issues and her if an election heavy that opportunity it was an afforded to her your red light is on so it was said here from the other side thank you may please the court i am mike risley here on behalf of the rawlings company a summary judgment was proper because the plaintiff could not satisfy her burden under the mcdonnell douglas burden shifting test with regard to her have the right to get the job that so what what is the employer allowed or not allowed to do with respect to the work for the time that the person isn't there i mean it let's say somebody takes a four month leave is the employer allowed to have all of that work accumulate and then when the employee gets back the employee has is expected to do their present job and four months of back where well that they certainly are entitled to have their position back and in the normal course of things forced business goes on during their absence in this they held her files for her because her compensation was partially based on the cult who closed those files so it was in her best interests that those files that she closed on she kept but then when she comes back she has to do all the back work that was left under desk when she left and she's getting new work when she come they did not give her new work they took her off rotation as what the evidence showed so she was not getting new files for a period of time when she came back so they accommodated her to allow her to catch up on her files isn't bradshaw's comment a really difficult comment for you to overcome the fact that he said and you're going to take another leave well it was in that course it was several months after she had taken the leave six months i think and i think the district court properly characterizes it as a stray isolated comment how did it relate to the date of demotion or to the date of terminations it was a year before the date of terminations it was a month before the date of demotion though that's a pretty quick temporal proximity it's certainly within a timeframe that may be considered but again it was isolated and it did not make any reference to her leave it was in terms of discuss seem her ability to do the work that she had to do and it could be interpreted as a reasonable question is are you do you know if you're going to have any time off he did not say are you going to take more of the elements that the plaintiff needed to show it was he had said i hope you're not going to take another f m out lately that would have that would be problematic if you made reference and it was going that it was referring to f m l you believe and he was suggesting that she shouldn't that is not what the plan was it was that r r it was more of a general and it was more of a question and correct me if i'm wrong but it was something like are you going to take anymore and leave are you playing on to taking any but right but bradshaw's role in this does raise the cat's paw issue that is discussed which is a relevant consideration we think should not apply because the evidence is not there to support relatively new and it's those issues are being worked out but i think it may go to the third issue that's relevant in the catspaws analysis and that is the plaintiff has to show that the superior making the decision would have would not have made the decision but for the actions of the subordinate in other words if the decision maker has the honest belief and would have made the decision based on that honest belief separate from anything honest belief trumps cat's paw all the time because that's the promise of honest belief is that you you just have an innocent mind you've looked into it and you think this person should be fired and the whole point of cat's paw is to attribute t bad motives to someone who actually doesn't have them well and it's about is that just doesn't seem to be reconciling well i think a matter of proof i think if if the there is proof that that the case anywhere that says someone's got an honest belief the fact that there was this subordinate who was manipulating the evidence in front of you that's a matter i'm not aware of any  see how those two were related that it had to have affected the decision because you could have a subordinate whose dislike for the person is is very obvious when they're trying to you know manipulate the boss in the boss's like you know the part of the thought process is taking everything this person says with a grain of salt but still this is what i conclude that you know might be both a lack of reservation and an honest belief that there really is something there right right right and with regard to the terminations which was discussed the evidence was that there was no influence by bradshaw with regard to the term nation as to the demotions i mean when he complained about her productivity as i understand it he didn't even he didn't refer to the f m l a leave which maybe you think you know put on one side of the scale is saying that in fact they're into it but if somebody is be hurrying to you're finding that some was not getting the work done would be relevant to the decision maker that well this person just got back from a leave so then you get to the question well if she caught up around august it was almost immediate that he decided that she wasn't doing the job right i don't i don't think it was immediate  it was a matter of months but a month i mean the the discussion among the statement was in august of two thousand and twelve ok and that's when she it was actually earlier it was by september when they were supposed to get caught after she got caught up in september so that kids are two separate beds and she got caught up that there was a back on issue which was resolved by september th recovery files that the stray comment was made that was in august so then it was in september when laura plumlee made the decision to demote ms bradshaw right but it was  it was after brad spoke to plumley right yes yes bradshaw did speak ok so you have a situation where she's caught up the backlog and then he nevertheless is complaining about her because the evidence on the record shows that she developed further problems with the work that she would have been given since about these then and are they called in our files for some of them were hers right and while she was out i know that she didn't get assigned new cases but was she accumulating in ours from her subordinates i don't believe so i don't believe so your honor she had no recovery and in fact there were people assigned to help with to close some of her files so did her desk meaning her stack of files did it look exactly the same when she left and when she came back i don't believe it did because because help had been provided while she was gone with regard to some of the no recovery files some of those fire old ones or the new ones cut the old ones they were of the ones that existed ok i've been saying that she had does the record show that she had less work to do the day she came back then on the day she left that she had less of a black log the day she came back than when she left i believe the record would reflect that that  had few or no recovery files the other files were the same that she had because she had been the evidence shows she'd been taken off rotation meaning no new files had been assigned that at some point after she came back no recovery files i'm finding a little bit confusing because i thought there were two types of her own and the ones that she had to sign off on from her subordinates that maybe the case that there th at as a team lead that she oversaw the closing of the recoveries of members of her team but it seems the way you've described the timing she she caught up in september and the backlog in august which preceded september there was the stray comment as you call it from bradshaw that's the district court described it and he's adopting your plumlee saw that she was struggling to meet her work demands and just plainly wasn't familiar with the fact that she had taken up if emily was not was was unfamiliar she did not know what those top doesn't  support the catspaw theory you've got bradshaw going in and complaining and he doesn't even provide the information that might explain it like she came back she took care of her backlog and then that's really what what the case we have is the absence of evidence to support these vague general allegations of well everybody had backlogs and my coworkers were talking about about about me there's just the firing did elsner follow what was company protocol when it comes to allegations of harassment when an allegation of a residence made obviously it needs reported to human resources and that's what even happened and even if the regard to work and her defense was i've been harassed i don't think an employee has the right to make such allegations say but don't report it that try to use it as a defense to her conduct or say a but the report once said allegation is made there's an absolute duty to report that the company protocol says that i think it does it does say that now the record is not entirely developed but certainly it is the policy  resources which was what was done the report was made to you when your resource elsner did not go to rollins to report it three the the the report was given to human resources human resources went to door drawings truthful with them what do you do with the fact that other people who were there say that it was just you know very noticeable very her health condition and what is she claims she said to rowland she claims that she's told george drawings that people her coworkers were talking about and there's no evidence that he had you know if if that's evidence that he knew of her a family and he only got that after the claims of harassment after the meeting already been set and after he had her that she might terminators he did not terminator because of her taking a family leave a year and a half and and several months earlier thank you thank you thank just to address a couple things that were said before miss marsh was demoted she was a team lead she had people reported to her and the no recovery files were work that was the work that she had to her because of that there was these were files i had no money in them for next year or as well as to oversee the closing of files by her by other analysts which were also not valuable to the client and so it's the kind of work that takes a lot of doing between her first f m l a leave and the time that they meet with her in the so called street comment is made she's working nights and weekends to clear out o what is your answer to the question first let's separate out her work and then her work as well as the leaders so in terms of her work is it the case that her work was at least frozen so that when she came back she had no more than when she left that's right she had no new files of her own to to oversee in the wood yes ok and she had her same backlog or or less of her own work ok so now let's talk about her job as a team leader while she was gone were the worst stats accumulating hours that she was supposed to close for her subordinates yes in fact there's evidence from f a david from beth davidson that she bet she beth got help with her no recovery files are so big there was a big push on to clear out the backlog and she beth got help from others to clear out her backlog their supervisor leah sorry got help to clear out her backlog because the was going around anybody who has a backlog as of the into summer is going to get fired mrs marshall talks to surly about that in a later meeting she talks to elster and says i'm worried about this i've heard that people are going to get fired they don't if they don't get their backlogs cleared up and eleanor gives her kind of a non answer he says well you're just going to have to do it and so she works really hard to get all that done she's emotionally fragile but she puts in lots of lots of time to make this happen and then when all of her work has been done well she gets demoted to the can i just want to make sure i understand you know so far everything has been about half a mill a mean the retaliation it's hard to say it's an interference case you don't brief separately the eighty a claim you just refer to be a d n a in the course of iraq from the way arguments is that a freestanding claim that you mean to be preserving or is should we focus on this is an f m l a retaliation case i think both both claims are preserved to you it's just the same thing is it's it's it's a it's a simpler behavior in response to her her her mental health issues so you think there's just as much evidence of discrimination based on disability retaliation because she's disabled this is you do on a family interference or i think the employer responds to her in three fashions they sheets she gets to take if m l a because she's emotionally fragile when she comes back they raise the issue that we don't they the state of mind seems to be as we don't want people taking leave around here when ever she's just that that's why when she's challenged are you going to take any more  leave it's not an it's not a nice comments trying to check on her situation it's pressure when she talks back a little bit and says can i see the report that shows what i'm doing wrong brad charlene's in on her and says she's incompetent she's not doing her job even though he provides no evidence to do that and so the disability well he's taking advantage of her emotional fragility of a book that's fine it's for what it's worth at least for me it's you should you should break these things separately are two claims to have separate briefing yes or it's asking a lot of i still don't you kind of answered my question but you launched into something else so while she's away she's accumulating and ours from her staff yes and can you give us information about later how significant that that backlog was was that something that i mean what i'm asking is the first question if someone goes out on leave and gets their job back are they expected to do all they can spec to do the significant is that is that a half of her is that half of her job is a third of her job was it enough to put somebody so far behind that they couldn't catch up with their could they couldn't keep current with their own work i mean what was the nature of that evidence in the record doesn't have numbers on it as to as to the volume but it's her testimony and testimony from coworkers at the in our project was very very important because support of the clients they want they want to see their work moving through whether rawlings makes any money on or not so and so they want that backlog cleared so it's a lot of pressure on and she's afraid she's will get fired if she doesn't get it all done and what did she clear her back