act case essentially involves a sixteen year employee who was an example a performer for federated insurance and never was disciplined prior to his protected conduct which occurred on july seventh were not knowingly false room reckless reckless disregard of the truth and they were implicated violations of law whether they were actual plan or suspected so the reasons accord should he can also demonstrate that the sort of reasons for his termination were pretext for illegal retaliation already dressed to protect the conduct issue the second issue would be the the  adverse actions that were taken against mr scarboro there are three the first was the april fourth that was the warning letter the second was on april thirteenth that was the demotion and the last was determination on april twentieth all these adverse employment causal can connection can be satisfied by evidence of circumstances that justify an inference of retaliatory motive courts also often look to number one the decision makers have knowledge of the protected conduct in this particular case  the decision makers didn't fact have knowledge mr karr and mr pennington had knowledge of all of mr scarborough's reports and when we look at timing here as i mentioned all the adverse actions took place within six weeks approximately six weeks of the first incident of protect the conduct but there's more evidence than just timing and knowledge of the decision makers if we take a look at the other evidence of caus l connection and tell you tory animists so after mr scarboro has a discussion with mr pennington on july seventh mr pennington immediately conducts a secret investigation scarboro learned that in fact johnson was going in the meeting rooms for free and he reported that information to pennington so the first piece of retaliatory animist was pennington's investigation into expenses after the july seventh report now we have the july fourteenth report can i can i ask you the questions about that about the report you raised the freelander case early in your argument now as i understand the district court did not have the benefit of that opinion so so what is your view on how if any the district court erred without having the benefit of the freelander case so the district court didn't fact have the amendment to the statute it took place in two thousand and thirteen district court chose to apply the case law that had developed around the definition of good faith as opposed to the plain language  were scarborough was going with yes pennington knew at that point in time he had been johnston's regional marketing manager and he had and he had approved johnson's fraudulent expense reimbursement requests going  to at least april of two thousand and twelve that's what the discovery shows in this case and understood that given his complicity this type of inquiry may in fact reveal what what he had done which other district marketing managers to do the same thing with pennington knew that that was false because scarborough wasn't involved from the very beginning pennington was involved from the very beginning and none of the other district marketing managers had submitted fraudulent expenses pennington knew that because he reviewed the reports that were generated for the time period from july two thousand and twelve to july two thousand and fourteen interestingly enough those were parameters that demonstrate that he in fact had approved some of these fraudulent expenses and the evidence in fact shows that pennington actually participated in meetings where johnston had arranged for the rooms  part of his out of pocket expense reimbursement claims and so on scarborough brought that up during the meeting and then he talked about in essence a potential tax implications the one tax implication to expenses that that money wasn't money that was actually reimbursement of out of pocket expense it was money that federating gave him and since they gave him that money it was income and there should have been point that's what he said i can't change those facts i mean that was the report and the report still falls within the parameters of the whistleblower act a whole line of interrogation and you know from there there was the august fourth warning letter there was the demotion there was determination i'm going to reserve thirty seconds of my did not engage in protected activity and his conduct did not constitute a report even under friedlander this court need not even address that issue you don't have to decide whether judge frank should have thought about freelander or whether is right or is wrong is because he is intervening misconduct which we submit is undisputed in this in this case decides this ca and so you need to have to think about friedlander and there's three reasons why you don't is in a reading misconduct this court's decision in the case which judge woman just issued last week and the judicial admissions that scarboro made in the missouri case those are three reasons why you should as firm summary judgment counsel talks about mike pennington repeatedly in their briefs and in their comments but it's important to member that was my curt and my current loan who decided to terminate scarborough's employment upon learning that he had called manager christopher terry and told him based on some rumor  so here's here's the intervening misconduct and as it is you know timing doesn't satisfy the standard under under this court's rulings and there's no evidence that other than that my current was the ultimate decision maker in this case and there's no evidence that he had it out for mr scarboro and he had no motive protect freddie johnson and this court has repeatedly ruled that intervening undermines any sort of causal inference so it's important to look at what might courier new and believed at the time and it's important to note that it came from multiple sources came from mike pennington came from freddy johnson it came from came from christopher terry and it came from scarborough himself freddie johnson reported that scarborough knew about the falsified expense report that's garber was complicit and they encourage others to engage in the fraud scarborough knew about the fraudulent expense report it was also engaged in an ethical conduct regarding cruise credits and scarborough was given a warning letter on august fourth making it clear that  any other misconduct and you're going to be fired says you need to understand federated will not tolerate any future circumstances that call into question your integrity violations federated policy or acts of retaliation toward other employees no matter how minor and then in a profound display of poor judgment he calls up freddy johnson's marketing raps and falsely tells him the johnson's going to get fired and then they find that on his disney expense reports that he has falsely submitted expenses contain containing personal items expenses for his family hotel a golf shirt on the company credit card any ultimately writes a check to federa ted for that and then he's demoted on august thirteenth for those reasons but others and i think if you look at any exhibit in the materials you should look at the appendix pages one ninety seven and one ninety eight and these are the talking points that might occur had when he had the conversation with mr scarboro around his demotion and he talks about as in the past so we talked about in the past you tried to take for your own use miles for a flight as a d m you turned in expenses for family when covering an arm's function and as an r m m you removed twenty five thousand dollars in fixtures from a house federated was buying out from you and at that point he says i was willing to push reset so there's there's a lot of stuff going on well before this question scarborough's integrity his of judge frank didn't reach that issue because he found that there was not a report so that issue was not addressed by the district court in other words you're asking us to rely on a ground for affirmative never dress code just correct correct and you are authorized to do that and on what theory that you're indisputably correct in your position i'm sorry are you arguing that there is no question of fact for a jury is there anything that you've told us is actually the truth correct yeah in terms of intervening conduct when you look at the raised it was it was extensively briefed everything that you have before us was presented to the district court and that is to court because it's out there was nothing there that there was no no report so he didn't even get to to establish that there was pretext for the for his his conduct because because we've raised a legitimate nondiscriminatory reasons on why he got fired all of his interview  but maybe not now as the jury may be that i thought this is sort of a plot to get back because of the complaints about pennington's collusion with johnson who is no longer with company the the undisputed facts are that mike curry was the decision maker there covering up the misconduct on johnson's part and that's why it's important that we talked about that it came from multiple sources it came from freddie johnson it came from braxton weaver and it came from mr scarborough himself who recorded this conversation with christopher terry the precipitated his terminations there's no factual dispute about the conversation that mr scarboro had with mr verse or whatever you know they're angry outbursts as you look at his talking points he talks about his being re outbursts he talks about his conduct in demeanor he talks about the cruise card guests he talks about booking flights he talks about the reimbursement so a multitude of things that have nothing to do with freddie johnson have nothing to do with mike pennington and the final precipitating event was mr scarborough's call to christopher terry saying you're about to get fired which was false which move rumor gossiping and right the purpose for the discuss the purpose for reporting the alleged violation and and wouldn't whether or not it was part of your duties in your job position your employment position would that go to your purpose or your intent i think you can parse it different from that because when you look at it friedlander what they were saying is we are defining what good faith is they didn't when you look at what he's reporting he's basically reporting he has a dispute with management over personnel matter you know it's not the kind of thing where you typically have in a whistleblower case where it's you know i think  you're cheating the government or you're discriminating against me because of my age or whatever it is it's not that kind of report so it's these kind of amorphous kind of offhand comments that he makes that they really don't fit within the report structure when you look at how that statute is is constructed but again you don't need to get into that because we believe that the the record here is so clear on the causation issue undisputed over which a supervisor was reportedly very angry three weeks later the plaintiff was fired but the court found in your honor found that that the plaintiff had displayed a lack of professionalism much like mr sc made statements that caused plant engineering ploys to question their job security exactly what mr scarboro did in this case discussed private employee information the presence of others exactly what mr scarborough did and also threaten to retaliate against one of his accuse doing i'm going to get that film the blank for complaining h r and we have we have conversations recorded in here where mr scarborough is making the same kind of threatening comments about mr pennington saying i'm going to get this guy i'm going to find a way to to show him and using all sorts of very fall language talking about mr pennington and in the murder case the plain of denied all those allegations of all those intervening misconduct up key question is not whether the stated basis for terminations actually occurred but whether the fed it believed it occurred and then went on to rule and affirm summary judgment this case is virtually identical to the murder case and then to would you have to look at the missouri case that mr scarboro filed and that's from our appendix at sixteen and allegations in the complaint are binding admissions and if the court is wondering why scarborough was warned was demoted are also really fired you only have to look at the representations that were in his missouri complaint he says that the statements by pennington by b wasn't verified complaint he has made these allegations in this missouri case that his determination was caused by the comments by mr pennington mr weaver and mr johnson and i think that eliminates any so we believe that intervening this conduct which is abundantly clear from this record which parallels very closely this court's decision in murder and just last week and based on mr admissions judicial admissions in his missouri lawsuit saying that his termination was caused by what he claims were defamatory statements by these other individuals and understanding was my kirk who made the decision based on the comments that mr scarboro made to christopher terry which had nothing to do with pennington or anybody else that causes termination and nothing to do with his alleged protective conduct list or other questions at you charges on his credit card which is the same as mr karr or any other federal employee employee federate employee should do he didn't engage an angry outbursts and then we had the conversation with christopher cherry i didn't quite go down the way  counsel represented it but this was a private conversation out of concern for a friend of his mr terry reached out to a mentor who then got in touch with mr karr and when mr  karr told mr scarboro he was terminated or not when he told me was germany but when he testified he said the conversation with jerry was the straw that broke the camel's back which of course then implies that all the other reasons that that occurred hard on the heels of protected that david in this case particularly when juxtaposed with mr hudson's previously strong employment record is significant evidence that what happened here was more than just coincidence goes  they rely upon for purposes of terminating mr scarboro because they're a fact to speak with respect each and every one of those there was a phone call to christopher terry trouble trivial matter is what we contend but