erred in two major ways in this case first the court required that the biased coworker or supervisor provide false or misleading information regarding the alleged misconduct to the final decision maker under both the us supreme court case of stalled and this court's case of alaska's harris no such malfeasance is required in the real world a supervisor over a coworker who are motivated by retaliation will look for an excuse to get a plaintiff fired when someone looks for an excuse he or she can usually find one the second major area that the court made was when they did know where the evidence of malfeasance intent and pretext it should be up to the jury to decide what motivated the coworker supervisor to act in a way that caused the terminations was the coworker motivated by retaliatory animists was the coworker or  supervisor simply motivated by the alleged misconduct this court has reversed summary judgment for an employer on issues of intent and motive holding that in those cases a jury should find the facts concerning those employees claims after he took ethanol a week and and engage in f m l a protected activity in two thousand and twelve he did that because his wife had high blood pressure following her c section and she needed his help to care for his new baby and his other child i mean requested it was granted f l amy and then you virtually and informally extended that me for another week which was accepted by the company he then fervently told his supervisors that he was declining required overtime in april may and june for the same f m away protected reasons to klein he required overtime for half a million reasons is considered intermittent f m l a week coworker conner's and operations production manager pratt were frustrated that a meeting was declining over time and pratt was angry including just two days before the terminations just doesn't mean it was declining that overtime conner's raised to ten to pratt that i mean misusing the time clock and leaving the building for an hour now three years before that i mean had asked his immediate supervisor if he could combine his lunch and break and take a few minutes extra to have a meal with his wife he had been doing it ever since and when they moved to electronic timecards his supervisor suggested that he would have to punch in and out at a different time in order to combine the luncheon break by the time pratt suggested determination to the final decision maker ha harrington pratt knew that it mean had permission to misuse the time clock to combine that lunch and break connor surprise also know that amphenol has lax enforcement of great time they don't measure they do not care to measure how much time employees take for break but connors and pat use this excuse to get him in fired at the termination meeting i mean told pratt and the h r director hartmann that the real reason he was being fired was because he was declining over time due to his wife's condition and pride asked him if he had proof of that he also told them that other people took after a break time they didn't even check the three other regular employees that were on his shift in jail department to see if that was true never before and never again has amphenol terminated the employee for simply taking extra break time now i'd like to discuss the court's first error now fisa in false and misleading information is that and you would look at what was their motivation where they were they motivated at least in part by the protected activities to say they are your friend the person who made the decision to fire for the five hundred thousand dollar  you look at is what how did this come to their attention why did they report it why is a adelaida end and using doesn't once is an example but there are many cases in this circuit and other places where there is admitted misconduct that a company might decide is a reason to terminate people and you look at this court and other courts have looked at is this something that typically gets people fired but now you know you're changing you're seeing a factor that we need i think you're saying in my embezzlement example they could fire the person because that's something they always fire someone or correct so you've introduced an element we need to find something in the record that would allow the fact finder to conclude that they would not always is you know jew they would they normally escalate this had the escalated things like this before had they suggested or supported terminations for this type of thing before and the court never even got to pretax in this case because of the legal errors in the first one was saying it had to be false or misleading there's been lots of cases and you know most recently just in may of this year in this court for the last harris case where there was no evidence that there was false or misleading information given there was evidence that the complaints had come from from someone else that they'd been confirmed by a different supervisor the real issue was the coworker had escalated the issue and had suggested a recommended terminations because the pla sensual advances in the room last paris case in this case we have conner's when he saw his own subordinates taking extra break time he never reported it or escalated it to anyone he just told them to knock it off and do that anymore we have we have pat he never even observed whether people that worked for him took extra break time they've never escalated an issue like this before they've never recommended or supported determination for the sake of issue before the same in the kelly vs question and services case also a first circuit case from two thousand and thirteen where there was clear evidence i think undisputed evidence that the plaintiff had been insubordinate but the question was was it a convenient excuse that was used to get the plaintiff fired of course they can fire people for being insubordinate but would they normally have done that in this case and was it motivated by discriminatory animus this test makes sense because someone with a motive can always find an excuse about the protected activity was considered sufficient evidence of malfeasance they also pratt also lead hearing to believe that a recent production error involved in trying to cover something up when he knew that that was not true he was the one who wrote the warning and didn't give that exonerating information to harrington which allegedly she used and considered when she terminated i mean and probably most importantly pratt did not tell harrington that it means misuse of the time clock was other time and that's what really got a rough set while she found out during her deposition because pratt had never told her that that was actually what mr self us permission but then she sort of changed your tune to say well it was sellers fifteen minutes was so you know stealing from the company well even after that when the company looked to compare to this they said the only comparatives are people who misuse the time clock without permission and have permission they've never looked or care whether employees took an extra fifteen minutes of break time never before and never again connors didn't tell pratt that is all reports took an extra break to use in the company statement they gave him when they terminated him that was revised to sign or stand it include the statement that it was approved combine his half hour unpaid lunch time and fifteen minute paid time so it looks like didn't know that when he crafted the first company statement learned and so put it in the final company's date are you saying that harrington never knew that what she didn't understand it became very clear in her deposition and she didn't understand that mr silver had given him permission to punch in and out at a different time then when he left the building she testified that he should have been wanting in and out and getting permission for his supervisor to change his time card and we asked her at the deposition you know did you know that actually mr sullivan had given permission for him to do exactly what he did to combine the lunch break and she did not know that and then she moved on to say well you know fifteen minutes was still really bad and he should be fired which you know is not consistent with anything they've ever done with anyone else at the company ever before or ever again now the court second big error was found that there were condoms were out to get in you fired first of all in stock the court found that when a supervisor informs an employee responsible for terminating employees of alleged misconduct a reasonable jury can infer that he intended that the plaintiff be fired the evidence in this case pratt suggested to harrington that in the end he fired and he wrote up determination paperwork connor never done before wrote up an extraordinarily detailed memo with photos that he never done before in his career pratt was after him and on him to get him to work overtime work neither connors nor pratt went to either i mean or even i mean direct supervisor silva to discuss this issue before they suggested terminat good morning your honor sir jonathan rosenfeld for defendant and for all printed circuits the district court judge mccaffery be properly granted summary judgment on ethanol's motion for summary judgment  because a means claim of f m l a retaliation the court found two very important things first of all that it was undisputed that harrington the decision maker was not aware of  m l the leave which incidentally had taken place three months earlier in there's been a subsequent leave after that it was a non issue and so absent successful invocation of the cat's paw theory there could not be definitely retaliation secondly the judge ruled and found that there were no facts from which the reasonable jury could find retaliatory animists were causation both of which are elements that retaliatory and no evidence in the record if we take the chronology in other words that this whole dustup didn't start until after he found that he was that the fellow was going to decline even more over time and then if you take his statement that upon learning that he was disappointed and then undertook this activity with a lot of vigor and innocent explanations for all of that but also without incident in march he comes back from that leave and immediately wants to take and does take another leave personal leave that personal leave had to be approved and in that meeting mr  following point i understand the theory he has this conversation about yet another need with this guy and they kind of reach a deal that he says well you have enough to do a lot of overtime and you get back we're not happy about this he didn't come back and definitely and when that was done in the end of march he returned he never was on another f m l a leaf in order for there to be a familiar leave it would have had to have been mended tory it was not mandatory i mean mid that there was only one mandatory requirement of over time in the whole time that he was there it wasn't this this time  full time in his part of mr means job description that he's supposed to assist in facilitating staffing for overtime he also agreed in the april five meeting in which he wanted to take an additional three and a half weeks of leave during it incredibly busy time for the company its requirements had increased by forty percent he said that he would help out with overtime when he came back and because of that it was not unreasonable or unusual that mr pratt when he came back and look at the company was very busy and especially on second shift where he was the group leader that he would ask him to work overtime however the overtime issue canard in this case because as you see from the terminations document over time had nothing to do with it that was not the issue at all and we have an intervening event a very important intervening event which was the tip that was initially provided not by connor's and not by pratt but it was provided by two employees who were drilling operators on mr amine shift and he was supposed to be leading them and they were upset that he would leave and be gone for an extended period of time when they were working very hard for this just another way of saying you know they were upset because he wasn't here when he was supposed to be working had nothing to do with with f m l a it had to do with the fact that they learned that he was cheating on his time card they told cards connor's then felt it  the timing is that's when they got the tip so he passes it on took two cars and congress passes it on to harrington and i would submit to you that if pratt not pass that on that that this person had been cheating the company and it turned out he'd been cheating the company for two years the disciplinary action would have happened to pratt this was something he's a he's a manager it's incumbent upon him to bring that up the chain of command taking any extra time that it in order for there to be knowledge and retaliatory animus which is what you need for retaliation they would have had to know that there was a comparative or they were not aware of any  time that they terminated in fact they didn't find out anything until this lawsuit and then when they they did an investigation subsequently and they terminated somebody because of that also install that the key aspect is did that influence the decision that was made by the decision maker and that's why you need some sort of concealment of a fact some from the statement something that did because if you simply have somebody reporting truthful information which is what happened carter's got a tip he reported it to crack crack reported it to harrington and harrington then did her own investigation went back through two years of records and found that in fact the tip was had given him permission for at least half of what he was doing the combining of unpaid and lunchtime unpaid well that's not true because after the first draft of the terminations water  two points on that your honor first harrington testified consistently and truthfully that her basis for terminations was the fact that i mean had stole one for two years that he had been paid for relevant respects mr silva did not steal from the company for two years mr silver did was he was being a nice guy and when mr i mean i asked him if he could combine his thirty minute unpaid break fact means testimony and we've done the comparison on page fifteen of our brief was that if you purpose is a summary judgment you take this is true mr silver said that you can combine and take more time top of that to make it up when you work so you could combine your lunch your lunch break and and the the fifteen minute break but you then have to make it up as the district court found and it's a disputed mr me never made up that work done now on its face that is ridiculous i was so who you could work two hours and get paid for eight but as long as you feel you've got your worked on that's ok but again we have to go based on what was mr mintz testimony he would have liked his testimony to be if i got my work done that's what they put in their brief but that's not what the court found and that's not what is testimony because his testimony is that he would make the time similarly situated to mr armey and incidentally prior to this time the company never had a situation like this so it wasn't like they had something else to go on they were free to make a determination that somebody who had stole you just like to clarify on the air and the way over time issue we called it informal because that's how the company allowed mr me to extend his ethanol a leaf but under the case law and the regulations it's  plain english request how does he how does he ask for half a mile a week he doesn't have to mention f m away he doesn't have to do paperwork at the company doesn't always require that which they didn't hear on so was a plain english request to be declining over time for the very same reasons that he'd done the formal requests for half in the lightly secondly the court and opposing counsel have ignored the the testimony of mr i mean that he stated several times that he was given permission by mr silva to have lunch with his wife and take a few minutes actually if you got the worked on the court took one isolated statement where opposing counsel pushed him to say time instead of work he said enough because as i understand it there's no evidence that he animists either silva or harrington so the problem that we have in this case is they they're refusing to recognize the real comparison the case so the real compar they fed her misleading information in some way and while they always left out the fact that she didn't know herself she left out the fact that there was widespread lax enforcement of the break time policy and we know we have record evidence not just mr amines testimony we have the time clock records of even one of the people who allegedly raised the tip so conor's regularly took fifteen minutes of extra break time so and this to me raises it to this terminations meeting now if we go back to the embezzl example if you're firing someone for embezzlement and that person says you know other people at this company have been embezzling wouldn't you look if you cared if that's a reason attorney would you look to see if other people were investing they didn't care about the extra fifteen minutes that was with mr pratt at that meeting that shows didn't care thank you