summary judgment that was granted on judge in a brown on or about twelve or twenty fourth in her order judge brown going to defend his motion on all claims including his underlying pin the claim that was before her for the retaliatory firing under state law a specific interest today is the fact that judge brown explicitly in her order on page twelve found that the plaintiff had proven a prime facie  this is of interest late because the judge depended on the need case in order to justify that determination in order to justify her application of the mcdonnell douglas did the mcdon need doctrine is restricted by its own terms two cases which are before the court under the guise of the guise of jurisdiction which is based on not on a question of law but instead is beneficial to the feelings positions that were being offered we had presented evidence of emails that discussed the plaintiff's choice of positions with redacted names which we believe reference additional employee and another employee who had also circumstantial evidence to support the claim the plaintiffs are going to hear today is that circumstantial evidence was avoided and what has happened is the defendant has been allowed to form shot by moving this into federal court thus adding an additional requirement to a state claim understand the argument that at the point when the court is taking into consideration a state law claim and in light of the psni holding that the mcdonnell douglas says applies when there's a diversity case before the basis defendants are now allowed to move these cases under the guise of a federal question or as the guise of diversity in the two situations that we're arguing is that the situation is different diversity is the basis and the justification for the sneak holding allowing substantive law to be applied the procedural law in that case to apply the federal procedural law due to the fact that there is diversity of jurisdiction this case was moved into federal jurisdiction solely on the basis of an underlying federal question that federal question or any allegation of diversity jurisdiction exists it's our position that the sneak case does not apply and should not prevent the court from making this analysis on the basis of the state law claim letter was that he had failed to report whatsoever he had left a message he had contacted that's contradicting the definitive statement he had made contact with his employer although it was a video message left on the telephone she later finds out that we also have another email ruth and i don't like him and i say but you look at the documents you just a letter was sent to him before they knew the doctor and you're launching on a long explanation but so far i haven't heard anything that tells me how this could be evidence  other evidence please do like focus on the question because i think that's the question you've got to deal with what's the evidence that this is a pretext rather i think that then i will proceed to offer door to enlighten the court on the other evidence that was offered in the record and in considered from that point forward without the application of the mcdon discuss this matter as soon as possible if i do not hear from you before may seventh two thousand and one the company will consider that you have voluntarily quit he responds partially he responds so she has heard from him but he does not contact her to set up an appointment well they don't treat him as a voluntary quit they treat him as determination the one is alleged to be a pretext to terminate from for failing to respond to the instruction he was as it was going to subject him to discipline he never received a verbal warning he never received a written warning and all of these things and they have been complied with in the past for other violations of company policy my contact to to put in place the grievance process as is required by his contract all of the allegations presented by the defendant is that he failed if i were the terms of the contract but in fact he made every effort by initiating the union contact he made every effort by contacting us cassidy he relied on his union contract that there was a progressive disciplinary policy which he was not afforded the benefit of all of these things he relied upon well  contract as he didn't have the separate grievance procedure and he's found his remedy there and we've been told how it comes out that's not really our concern now those are his rights over there with regard to the action of contact and it wasn't back to schedule the meeting in his other actions coupled with that like contacting his union representative i believe a reasonable jury could conclude that that does create a factual issue as to whether or not he complied with that letter mcdonnell douglas test i think that the problem under oregon law is it's requiring the federal court to make a determination as to the sufficiency of the factual issue instead of to the existence of fact which may allow a reasonable juror under oregon law to make that mcdonnell douglas factors which i believe was incorrect i believe that those factors are political as stated and is limited by the language of that case which states that it's political to diversity cases and diversity it doesn't go as far  cases only but that's what is addressed by that case and that is no longer the application that is not the correct application in the correct application would be to oregon state law at which point my client is faced with the burden of proving then my argument is that state law sort of applied otherwise the defendant is allowed to remove the case into federal jurisdiction for him shop and that's present an additional factor which a plaintiff must prove to survive summary judgment above and beyond that state law claims  really years quite straightforward i don't think there's any real dispute here or there the rule that resulted in mr two year being terminated was that you had to call in or if you didn't call in and you didn't show up for you days in a row you were subject to terminations that's the rule that's in the collective bargaining agreement that govern this employment relationship and that's the rule that was in these transitional duty room guidelines that the point of testified in deposition he had only recently received actually take it home and it with his wife at home and he marked it up and looked at it carefully the collective bargaining agreement says section five point five and this is in supplemental expert of record one one fourteen any employee temporarily absent from work for any reason other than vacation approved leave of absence or hospitalization when the employee is unable to communicate must report his status daily by telephone to a supervisor failure to report for two scheduled work face shall be deemed a voluntary quit and in five point two the collective bargaining agreement says employees lose all previous security and their employment relationship shall be terminated only if they quit or retire are discharged for just ca or are absent for two or more consecutive days without notifying the company of such absent one of the things that council has as indicated is that there's a progressive discipline policy that governs when you have a terminations for a just cause which is a separate provision of the collective bargaining agreement here we're talking about terminations under five point two c absent for two or more consecutive days or under five point five where it's a voluntary quick look at things likely to find the companies like you have certainly notified the company of such and well that's right you have to look after five point five and you also look at in this case because he was in the transitional duty room you look at the transitional duty room those two places more specifically that you must report your status daily by telephone to your supervisor when you're in that situation and in the transitional duty room guidelines that's that's very express stated as well and airplanes have understood this and i think that's really the ultimate critical fact is that there is no dispute between these two parties that the applicable rule was you got a collie and daily to your supervisor and if you don't do that i mean daily basis almost no matter what the reason your employment terminate i asked the plaintiffs in his deposition in this a supplemental expert of record fifty three through fifty five  i asked him so you knew as of the time that you started working in the transitional duty area that you had an obligation to call in daily if you were unable to report to the transitional duty correct answer yes question and you also knew indicated in exhibit six which was the transitional duty room guidelines that quote failure to comply with the transitional duty policy guidelines will subject the employee to disciplinary action up to and including term a nation correct and place of answer ye and then later at page one hundred eighty four of his deposition so you knew that failing to calling and failing to call into your supervisor for two days a row even if you were shall be deemed a voluntary quit under the collective bargaining agreement answer ye s so there's no dispute here between mr cheer who worked at this company long enough to know these things and the company you've got to call in on a daily basis and what he says is i'm april twenty fifth in april twenty sixth his testimony in deposition was that he forgot that that's his rationale now he was given he was given as the court has has already noted he was given an opportunity to explain that to julie cassidy the director of human resources in her april twenty seven letter what she testified in its undisputed is that had he set up an appointment with her had he given her some explanation for his failure to call it in his failure to show him he did have previous instance on the scene leave or he failed to follow the transitional to the room guidelines so she had reason to be concerned at all she said had he just called me and presented me with a doctor's note instead here's what was going on here is why i wasn't here she likely would not have terminated his employment but he didn't do that as the court has seen  notice she had received nothing from the union should not receive the grievance and she certainly haven't received anything setting up an appointment for mr tour to explain why he hadn't been there what your response mr arguments need doesn't apply because the verse the no longer exists because you made a motion you really claim the basis for the version well so several things your honor first of all that's a bit of a new argument for me i don't think that was in the briefs but i am prepared to address it i believe in and i apologize for not knowing this off the top of my head i believe that this case was removed on two grounds both diversity and federal question i have to go back and look at the record to determine whether that's true but i don't really don't think it matters very much  this court obviously is applying rule fifty six the summary judgment rule under the federal rules of civil procedure to this case that's before you and you have a standard for whether there's a genuine issue of material fact on the issue of whether an unlawful compensation plane and in the legacy case the court found that there was sufficient evidence to create a genuine issue of material fact in fact forecast was kind of the same as pretext that's right well indeed your honor i believe that's correct i mean there really isn't difference there may be some procedural difference but here i think it's clear you're not applying oregon state summary judgment statute you're applying the federal statute so the question of whether there's sufficient evidence i think ends up being t same ultimately that the elements of a claim here are that the plaintiff has to show the file the worker's compensation claim true enough he did he suffered an adverse employment action true enough he did but the critical issue here is whether he has come forward with sufficient evidence to show that the reason he suffered the in the adverse employment action was not that he failed to call in until to show for two days zero but because he filed the worker's compensation claim and there's no evidence in this record that that is the case in fact i think one of the most powerful pieces of evidence in this record is contained in julie cassidy's affidavit where she lists and it's entirely disputed she lists other people is it a sort of harsh draconian rule in some workplaces yeah maybe maybe so but this is a rule that was bargained for between the teamsters and the company and it's a rule that the undisputed evidence in the record is  uniformly applied to people who fail to call in and fail to show here as i mentioned before plaintiff had an opportunity to get himself out of it and he didn't do so i do think that yes it's hard for me here is th back if somebody had a powerful inference of discriminatory action on the front end the fact that he's tripped up by not responding literally to her letter probably isn't going to survive investigation to try to determine why he failed to call and failed to show up those two days and she's seeking to set up an appointment with him so that she can find out his side of the story as of may seventh which is the deadline that she provides she  doesn't know and in fact in the record it's clear that she she doesn't ever come to know he never comes forward with any kind of doctor's note he never and we know in fact if he didn't have the doctors know a year later in the course of this litigation he went back and got a doctor's note to say that he had some condition on those days but from julie cassidy standpoint as she's yes she tells him conducting an investigation and trying to figure out what's going on she she never finds out i also where you couple the fact that there is a reason that even plaintiffs concedes is for cause which we've seen as a result of this his grievance that was consistent with the collective bargaining agreement and then when the only other evidence in the record is better everybody else who's ever violated this rule got fired workers comp claim or no i think you put those two undisputed facts together and there's just no basis on which to found an inference that there was  retaliatory motive here and i think you know if there were a contrary ruling practically speaking on an employer is they could not force their rules with somebody who had filed a worker's compensation claim without necessarily having an issue with fact and having to have a jury trial as to whether or not the fact that this person filed a worker's comp claim was the reason that they were doing what they did where it's uniformly established as it is here that every time the rule is violated the person got fired if it shouldn't be the case in the absence of some other evidence that just because somebody has filed a worker's compensation claim now that rule can't be enforced without a full blown jury trial to determine whether or not conceivably the worker's comp claim could have had something to do with determination there's got to be some other evidence i think to create a genuine issue of fact that a jury would need to decide how much you're relying on  believe in the in the world argument five light fifteen where they took where she talked about the failure to file space statement results in the facts being deemed admitted and then in the decision i think if you in defendant's concise statement are really not effectively contested at all in the concise statement in response but it's not in response its own concise statement so i think that failure to follow the local rule there and specifically respond to the defendant concise statement does result in at least some of those facts independent statements being under a literal application of that local rule deemed admitted and i do think that judge brown did certainly take note of the fact that many of these key facts were deemed admitted just they were neither expressly responded to nor contested in some other way i don't think it's critical but i think it does strengthen the defendant lovely evidence presented by the defendant because in this cassidy's deposition her deposition her affidavit so and so forth all that information should be disregarded none of that information should have been considered in making the course determination doing the evidence in light most favorable to my client would just point the court to page eleven of the reply brief and the litany of cases there which delineate the burden of proof necessary currently in oregon law and also as well as well to the cases i mentioned