please the court my name is jack frazey and i represent the appellant one l and it's this case is about age discrimination in retaliation there are two issues on appeal st is whether summary judgment was appropriate in light of evidence presented showing there are genuine issues of material fact that remain for trial and the nd is whether summary judgment is appropriate when evidence has been introduced showing that the stated legitimate reason was in fact false for all of the reasons that we've explained in our briefs and what i will say today we're asking that this court reverse and remand the case that we can go to trial and test these actual facts and the evidence and the witnesses i st want to point out that this case is on appeal from a motion for summary judgment that was made by united states renal care so all reasonable inferences must be drawn in favor of the non movement which is al in the us this is also an overview so the lower court is not given deference this case involves two claims one for discrimination one for retaliation and both of these are analyzed under the mcdonnell douglas test so i'm going to begin with the discrimination otherwise been discriminated against that was incorrect because there were two employees hired to replace felonies one was doing a roach who was fifty nine years old and she was older than allen nice and also within the protected that if two employees are being hired you look at the age of both of those employees and if one of them is substantially younger then the terminated employee that's enough to create an inference of discrimination in that case was replaced by toon ploys one was six years younger the other was twenty seven years younger and in that case the district court held that that was not enough to create a fact issue or an inference on discrimination because six years younger was just too close to call but this court held that you look at both employees and twenty seven is enough that is very similar to what's going on in this case and that reasoning from that case actually supports mr allen he says contention even more so it was coming out of retirement to cover for him it's reasonable to assume that she's going to go back into retirement when she's no longer needed at the company she stayed there what at least a year that's correct your honor and that may be in part to help train up the other employee but there is some rational time limit on how much time she's going to spend there a reasonable fact finder could find that that was intentionally done to help cover for the absence and also cover for retaliation or discrimination claim moving on to the prima facia case for retaliation retaliation in the district court i didn't see where  believe it was wrapped into the discussion of discrimination and that it was immediately raised as an issue that he was actually retaliated against for raising this discrimination that he was suffering and like i came to the facility and made discriminatory remarks toward him and then ultimately terminated him under a pretextual reason i think you're correct your honor that there was not a separate heading but the arguments are wrapped up in there and i'll point out th age discrimination i mean it's a different you know it's a different problem aphasia cases you're about to get into yes your honor yes that is correct but all of the arguments that are necessary for the retaliation claim are in that brief and i would ask the court to look to that brief if there's any question about that because i don't necessarily know what to say other than to urge that it's included in the brief so moving on to the prima facia retaliation claim the lower court found that that was satisfied because action and there was a causal link because of the proximity in time between the protected activities and the actual terminations so that should hold up on appeal as well and that was correctly reasoned this brings us to the nd step of the test which is what is the legitimate reason for termination and united states real care or claims that any forged documents so then the test shifts back to the plaintiff to persuade the fact finder but i mean the fact that they're wrong on that by itself isn't enough to get you a pretext that's correct you're not there and they knew they were wrong not just that they didn't do very much investigation and it is true that the signature was forged just your argument is there are other factors that go into considering all of this so as you mentioned that the form two thousand seven hundred and twenty eight was signed by the patient's husband with the patient's consent the day that alex confronted allen nice with that signature and accused him of forging it he told alex that he did not forged that signature and that the patient was on the way to the facility and could clear up the whole issue rather than wait for the patient to come and talk to him about this he told alaniz to leave immediately and that weighs in favor of a finding that the real intention was to get rid of allen nice not to actually solve the mystery of whether or not these signatures were being forged and you would think that the company would have a significant interest in actually finding out the truth there because it goes directly to patient care and how they're submitting claims to medicare so have an obligation to report on e s a p was in fact forging patient signatures some entity it would stand to reason that they would do that there is no evidence in the record that they actually did do that and to support alan he says contention that he never forged any of these even one terribly submitted information to the texas workforce commission is asking for a trial to vindicate himself that he didn't forge a new of these signatures that's not really the behavior of a serial forger on the other factors that weigh against a good faith belief is that and twenty well let me just be more clear assume i just don't know the rules for licensed master social worker but for example a lawyer who knew that another lawyer had committed forgery would have an obligation to report that state bar of texas is there a similar situation with licensed social workers i'm not aware of a specific rule i would think under the ethical obligations of a professional he would be required to do that but i don't honestly know report asked him to go through do any of these refresh your memory have you seen any of these where these part of your analysis and he couldn't remember any of these forms or patients or reviewing them or which he had looked at so we asked him ok can you identify one of these forms that looks suspicious to you and you pointed to the form two thousand seven hundred and twenty eight and we pointed out to him well there's another signature line where you can witness the signature as authentic and it's signed by rebecca porus the exact person who was discriminating against ellen who reported the issue to brian halakhah that weighs against a finding of good faith because he can look at the document and see that someone else witnessed it was authentic the other issues with their summary judgment evidence is allegation was that she was coming june th the day he was fired and so that should not be given any weight i'm interested in this otherwise discriminated based on age that we have the issue of the replacement and that's a bit convoluted because they did replace him with somebody older but you have this otherwise discriminate on age would that be this a younger person is waiting for your position kind of discussion because rick you sa remarks and that kind of thing but that seems directly stating we want you out so we can put a younger person as opposed to making some joke about your all which i'm not saying is proper but maybe doesn't count in this world yes your honor so that's exactly correct there were several comments made saying you know we have younger people waiting to take your job we prefer younger people younger people are easier to mold and move faster allen is reported in his complaint to r that this was a regular occurrence he said the same thing to the e e o c in the texas workforce commission his account has been remarkably consistent the entire time and this brings me to another one that weighs against united states real care for a good faith belief which is that the actual alleged forgeries grew significantly over discovery because initially they were saying it's a form two thousand seven hundred and twenty eight and some care plans then we do a deposition of a backup or as and at that deposition she's asked to estimate how many are we talking about she said well it's probably over two hundred dollars so we asked ok if you produced those documents and afterward we were given a whole new batch of documents so that hasn't even been a consistent explanation in all of these things should weigh against united states real care especially on summary judgment where the no one movement is entitled to all reasonable inferences so for all of these reasons unless the court has any additional questions we ask that universe in that case that we can take it to trial and actually have these witnesses weighed by a jury thank you comments because these are just you know inappropriate jokes which maybe you can disregard in this context again i'm not saying they're proper but to actually saying some a younger person is waiting to take your job why isn't that bordering on direct evidence of discrimination i think you need to look that's a good question and i think you need to look at the timing in the context in which that statement was allegedly made st mr allen is alleges that that statement was made months before his terminations terminations occurred in june of two thousand and seventeen these allegations occurred foreigner and i mean well it and that that wouldn't be enough or just temporal you know like when you have retaliation based on temporal connection but isn't that evidence of we're on a warpath trying to find a way out here and because you want to replace you with somebody younger than in march saying younger employees can move more quickly and be quote more easily molded and so forth these are direct statements that are not just inappropriate jokes well it is a statement that is remote in time made by someone who is not a decision maker in connection with the termination decision the evidence in the record shows a determination decision was made by right now kyra in consultation with human resources  alan east where he was joking about how old he was so with that it's not a comment of out of the blue we don't like old people we're going to get rid of you kind of thing it's a context of a conversation with him when he had a self deprecating comment about himself and there is a discussion with the unit manager allegedly over that comment so i guess one graveling the grievances turning them into human resources i mean to say that perot's was on involving a foreign is a little well she was not a decision maker you're correct she did collect grievances and there are a couple of grievances that issue here one is the investigation into the falsified documents she was involved in that because that complaint was raised to her as a unit manager she brought  growing performance review at the end of april so the performance reviews if you look at the timeframe in which the performance review was set to address it was the beginning of his employment which was august of two thousand and sixteen to the end of  february two thousand and seventeen during the that timeframe and this is what miss prez's testimony was about i was about you and him during that time frame these other issues were coming up afterwards and she didn't want you to doze it that's a different time frame that's not covered by the review in march and april and there are employees statements to that effect supporting that but that's not why he was terminated it was it terminated because of his interpersonal issues with the coworkers he was terminated because of the false of a cation of patient records in counseling spent time talking about the tw and the operation current plans and we submitted of the common is it for people to sign for their spouse or their parent when they're being treated you know there's nothing in the record about that so i can't point the court to a specific issue with if it is to happen they need to have a power of attorney and so because these are documents the two thousand seven hundred and twenty eight dollars in particular is being submitted to the government for medicare payments so it is a pretty serious document you want to ensure that the appropriate there was a you also your honor respectfully need to look at the information that us you know care had at the time it made the decision this information about the patient's husband and his you know what we contend is a faulty declaration coming in patient care plan documents again we illustrated that in our briefing and you can you don't have to be a handwriting expert to see the difference in the signatures that were there they had a very reasonable believe that these documents these signatures were not correct mr was the one responsible for them when presented with these documents he did not give an excuse what came up after the fact is different at the time when we're looking at the reasonableness of their belief in making this decision it's the information that on the tw twenty four he's just those folks are on their way want to wait in ask them why isn't that because if you show me that one of the supported forgeries isn't a forgery maybe that begins to question the others because when you're talking about caring for people that are quite you know this notion that perhaps they're directing their child spouse to sign for them doesn't seem shocking to me that seems like that could happen it's not a regular medicare all approves of that's a separate question but that's different from him committing a forgery there is no evidence about the case and it's not so much that there's no evidence that that was the case with these other documents and to go back with the issue with the tw and twenty eight even though he used to give all credence to mr all and his testimony that he said hey these patients are coming in a couple of things that they never came in that day to dispute that if we can we can go down a path and say well what is that the husband or the patient came in that day and said hey you got it wrong they never did that didn't happen there is no evidence of that happening furthermore there is no evidence that mr that the husband ever sent his letter to us or you know care they never got it in the in the us except through this litigation and there's nothing in his affidavit or the testimony of any of the witnesses that said we got this letter before this litigation commands back to the chronology we talked about the perform an employee each of us we know each facility has to have a doctor they contract with an independent doctor to oversee those patients he is not a manager or supervisor agent employee and all of us we know care he is a separate entity he certainly was not a he's it doesn't say what it's about other than the age act it goes to heart there is no evidence that miss pres knew about it that mr you knew about it that mr consolidates knew about it and certainly dr body up and if you give credence to plainest testimony that he somehow knew about it but i would say another issue with the potential retaliatory motive oh we're talking as a temporal proximity here we have no evidence they knew about it but if you look to just a few months prior  influential even if he's not the cause and you've got the temporal proximity and you've got all these other issues with whether or not this forgery is because you have other people involved in these focus on the issue of the state of law in the circuit about nd guessing personal decisions and giving the employer a reasonable belief did they act reasonably based on the facts before it at the time it made the decision we need to avoid the monday morning quarterbacking with all this additional evidence that that the plaintiff is throwing in doubt to chime in costs out o on the decision that was made based on the fact that mr alex how i had before it and recall that he also asked mr price and this of us over the dietician who st brought this issue forward go talk to the patients on those who signed that care plan is that you have questions about and those patients said those are our signatures that is important information that alex i had in front of him too so that should not be discounted as well you can assure waiver on the return we can climb given that the plaintiff didn't respond in the district who are we did not call back i don't think we specifically called that that's i don't mean to laugh your honor i suppose that yes it would be if we did not raise that the but that the same facts that apply i think it all comes down to pretext it all comes down to the motivations for terminating it all comes down to is there any of their evidence of discrimination existing here besides just his after the fact attacking of the decision and there really isn't any it's such a long list of comments and questionable thing and temporal i mean that's why i say it's it seems extremely fact brown to me for a summary judgment case but well if you let doesn't mean you won't prevail here i understood understood and these are tricky case will if i may add though with respect to the various allegations he raised internally a number of them did reflect age a lot of them also reflected in their personal issues you know he was upset that he was being paged over the intercom he was upset that someone would knock on his door when he was in with a patient there's a lot of other issues he was upset that he was not going to set so the problem and this is all very nuanced and that's why i say it's can be seen as well you're saying he's elderly you can't hear you and whatever and that's that's what i'm talking about that's very nuanced but it's still part of the factor will situation that he's asserting he's saying he's being treated differently because he was perceived as old not because there's something wrong with calling people on the intercom well that's i don't think there's any evidence in the record that would support that one way or the other but i mean if we want to have a hypothetical about that that could be a basis  who i mean that's his evidence that people were doing things with him oh you need to speak up or whatever and i'm not saying there's anything wrong with speaking up when someone hits that my mom was profoundly deaf and you had to louder to her in the side nothing to do with rage it was it was a condition she had but you did it respectfully obviously but that is a mean that everybody who's over forty needs to be shouted at that that's what he's saying well and that would go to i think is discrimination claim because there is no evidence that he was singled out for that sort of behavior at all and there is no evidence that he was the only one who is being pitched on the intercom he the testimony and the evidence is that he felt  say you know the record would indicate that his his complaints took a little bit of a different flavor in focused more on the professionalism of what he perceived was going on there not that he was being singled out he was certainly not the only individual over forty human resources in part for their about the allegations and the way that they addressed them was to bring people together and say ok let's get some common ground here we're going to treat people respectfully we're going to put the patients st you know we're going to play nice in the sandbox everybody and so that's how the issue is res think your owners and there are multiple points on the dress you're only going to begin specifically with whether they had a good faith belief because i think that's the most controlling issue here  immediately protested the reason he was being terminated for us real care is suddenly at all times in their brief and it seemed to be said here that he did not protest that he said nothing in response mr advani says testimony the entire time has been that he which he thinks ok honest is the only one that's responsible for this so i've got him you know comes and throws that out and he tells him i didn't forge that document the patient's on the way let's wait and talk to the patient rather than do that and like i had told him to pack up his things and leave  y we know that allen nice was having an issue with the way he was being talked to there because alec i ever wrote on the counseling form at the bottom patient refused to sign and stormed out showing that he's protesting what he's being told he does not agree with that he's maintaining that exact same argument all the way through the litigation and as far as the argument that the only discriminatory comments that were made were back up or as early on and then it was corrected and there's no issue that's also just not supported by the came to talk about her as as discriminatory comments and all the other issues with the staff and he listed three specific comments that he said retaliatory st thing he said when he walked in was can we get me on this and then he told him the medical director will inside with the facility administrator do you understand this then he said there were no problems here until you came on board all of that is indicative of retaliatory behavior and the reality is alan has followed all of the procedures he was supposed to do the policy handbook tells you how to raise complaints internally at united states real care and that handbook is in the record as well it says you raise that issue internally to your manager then you raise it to h r and you keep escalating it so that you can try and get that problem resolved well alan has tried to do that he talked to rebecca pres he didn't feel like she was taking it seriously he talked to h r and he felt like it was getting a little bit better but alitalia was brought in to talk to him about it and made three comments he thought were retaliatory he testified that he felt like it was continuing to escalate and ultimately filed a complaint with the e e o c he sought all available remedies that he's supposed to do in this context and still got terminated for demonstrably false reason and as far as the care plans go that shouldn't be given weight because they know other people have the ability to get those signatures and when he st asked them about it he walked away as if well that's not enough to pen on now and he's we're going to have to find a form that only he has control over all of that should weigh in favor of all of these especially when we hear on summary judgment and all reasonable inferences need to be given to allen east and as you mentioned judge james this is a largely fact specific appeal that's because these facts and evidence and witnesses need to be given to a jury so that they can weigh the credibility of these different witnesses there are only three people that were deposed alan eames alekhine rebecca perot's and pres are the two people that have been identified as taking discriminatory actions toward alan it's so to say that alan is has a subjective belief and it's not enough to meet discrimination and that their belief was good faith simply weighs the testimony of two witnesses that are self stood against another allan nice as an interested rd party testifying in his favor supplying an affidavit saying i signed for that form and as far as the comment that the patient didn't come in for treatment that day again i have to point to the clinton jefferson declaration that said she didn't come in on june th which has never been the allegation the allegation she was coming in that day june th so whether they looked through the records and saw that she wasn't there on