base number thirteen three five two and an echo carol versus state of ohio department of administrative services oregon is not to exceed fifteen minutes per side misnomer for the and her claims and her appeal against the department of administrative services i'd like to address four issues today first summary judgment standard the cat's paw theory adverse employment action and in the similar situated issue first a summary judgment standard i thought was said very well by judge judy in one of your washburn case where you said that the standard as the facts must be viewed in a light most favorable to the nonmoving party in the facts must be viewed as a whole and that's very important in this case because you cannot cannot look at it in a vacuum in this carol had was an exemplary employee not often do i get to come up here in front of any court and say my client had not a blemish on their record and they she didn't until two thousand and eight and at that time she was accused of threatening to kill someone and dumping them on the head and number one she didn't threaten to kill anyone she didn't use the profanity that was a workplace violence issue because that makes it worse when anyone says workplace violence we've got to take this seriously that's not the case here it wasn't workplace violence she was an accused of workplace violence she was accused of conduct  becoming which she denies she ended up in the n word twenty three hours suspension right yes it wasn't like she was fired or demoted so is the isn't the issue here not what actually happened that is were not the fact finder but what the company's investigation and belief was and that really what we should look at i mean not to decide how hard the  in my point in even bringing that up is that the trial court weighed the evidence which was not the trial court's job to do and the honest belief defense fits right in here because the trial court weighed the evidence the trial court said jase basically said well it really what mr hooker really said that's what really happened here it really it really happened in that's what at the time that this investigation went down the particularized facts were merits a less than three days suspension well for this place if this it didn't just stop at the three day suspension and three day suspension is a lot you have two separate things we have the suspension and then we have the which we will say is a demotion ok i mean you said that's your third point or at least far as i'm concerned i'll accept it as an adverse action of my colleagues but what i'm interested in is number one what evidence reason with respect to both incidents both actions so similar situation legitimate nondiscriminatory reason first of all similarly situated we have mr thomas presented the affidavit saying i went through two years of just complete bad stuff and i told miss schaefer about it the person in charge of a r h r and i told her about it i told everybody about it told bill ticknor about it nobody wanted to do anything about it and so when finally she forced the issue and it actually she even went to miss carroll who went to miss schaefer about it and said this is discrimination and then when what happened after that was they did a investigation of mr thomas subordinates and they all said it was horseplay they believed them they do and invest d all the investigations here all of them at the a a a s does an investigation of miscarriage of subordinates her supervisor said no this didn't happen these people are incompetent they should be fired and they're making it up all her subordinates said no she doesn't act like that she doesn't talk like that and they discarded it all and the court said no we don't believe that the court weighed the evidence wishing the investigators from the decision makers that is what you just told me you're saying the investigators were the same people who did both investigations miss miss schaefer is everything bottlenecks at miss schaefer she's the head of h r and so have there's going to be an issue of the word decision maker because of the disciplinary grid with the state they're going to say they have said that it was director quill and it's a different decision maker but as actually judge blogs points out in the majority opinion in versus ohio department of rehabilitation and corrections in july of two thousand and thirteen which by the way was a female alleging a female legend gender discrimination about female in that case the it they called it the rubber stamp theory and that's what it is cat's paw is synonymous with rubber stamp because that's what happened but the decision maker was influence there was no independent investigation there's absolutely not a hint of an impending independent investigation by director quill in the record because there wasn't one and what happened was miss schaefer handed miss handed miss carroll's investigation to him and she handed mr thomas's investigation to whoever she handed it to your basic theory is that schaefer's the person really doing the discriminating and both incidents he's allowing it to continue i'm saying that there is discrimination going on by the males which is similar to the the bishop frankly she just got tired of hearing about it because nani wasn't going to be quiet anymore she was complaining she was complaining in writing lissa was the acted the same thing about mr thomas and he actually did it he didn't even get fired for having live sex chat online on company on and leaving it on the server i mean he got a twenty to spend so he should've been fired well but we can that's not the beth and that's the problem with similar situated is we get you know she didn't do it but then we're then i'm forced to do an analysis where there's a similar such there's a person that has been accused of similarly situated behavior even though she didn't do it and i have to show that hit was more grievous now the other thing is and more importantly here is that mr thomas comes back he comes back to the exact same but let's go back to what your just said about why she didn't do it but what's the law in this kind of an action can you simply rely on my view is she didn't do it somebody else's is that she did without showing something to undermine the honest belief well i mean that's where we that what you have to focus on well and that's the first part of the argument that she didn't do it and they knew it at the time they were saying they didn't believe it but they said mr albright who there there is a big mr allbery is a person who did a lot of the investigation with miss schaefer very involved and the very involved intimately involved i think was the wording with the investigation which the one where miss carroll was accused of threatening to kill mr hooker mr smith mr albright also the investigator from investigate i guess i don't i don't know that there was another when she yes she's human resources she semen resources for d a s and she had complete control over the investigations regardless of who if there was an additional mr thomas is that accurate i don't i don't i don't know that there's any evidence in the record about who the name of the investigator was for mr thomas it but mr shafer was and there is evidence that  from this shaffer's own testimony that she did that she was involved in that investigation as well and that there was a meeting now in back to the honest belief defense counsel you your you can go on which will be eating up your appellant partially admits responsibility for the bump on the forehead which form the basis of her suspension and also a reassignment with no change in working hours and no change in the appellants one hundred eight thousand dollar annual salary as you can see from the district court's decision there is no evidence of gender discrimination or retaliation here disagreement with decisions taken by an employer is not tantamount to discrimination or retaliation which which seems to be the balance there in this case  turning first to the suspension and touching on some of the issues of already been raised by the panel and although the district court did not reach this issue you can see that the decision by thoroughly researched the argue or adversary seems to say that this schaffer is the bad person in here what what can what's your view on shaffer's role in each of the two investigations or each of the two into the allegations made by mr hooker against miss carol michel for and he found his his job was determine whether or not he should proceed to the disciplinary level if he did not he does not impose discipline or recommend us for as the head of h r oversaw the investigation and as mr albright's boss and then i should also and i should also point out that if you take a look at the brief i found in this matter mr albright testified explicitly that he took into account whether or not mr hooker concocted these allegations of miss against miss carroll in order to save his job explicitly testified to the same thing and schaefer testified we took that into account did we think that she was really conducted the predisposed our investigation if you take a look at his report that investigation earlier you said here in which i'm sorry if you take a look at his hearing report and i apologize your honor it conducts an extensive analysis weighing the credibility of miss carol when the credibility of mr smith who was a witness to this incident when the credibility of mr hucker you actually have a hearing and you have troll min's written decision exactly in shaffer plays no part in that that's an independent decision reached by an independent shaffer was very clear director quote makes an independent decision in every case he takes a look at the allegations the packet all the materials the investigations the predisposed hearing officers report and makes an independent decisions not a rubber stamp  clear on that point turning to the reassign willed opposed to a gave an affidavit or anything he was not ok and so you know you're going to tell us about the thomas investigation that's correct your honor the thomas investigation alison shaffer testified that she initiated the investigation and after uncovering some evidence that investigation this was new york lodged a complaint with the state of ohio are you are you saying that schaefer initiated the investigation before she heard from  was in the attic was allegations from was the act came in actually i believe it came through miss carroll somehow they came to miss shavers attention i believe miss was the act told the o'connor she didn't just wake up one morning and decide to investigate i don't think so and then after she uncovered i believe her quote was some evidence some something was going on here there was a complaint lodged by miss was an act with the stand ohio watchdog this is the name of their website it's the state inspector general's office who conducts tons of administrative investigations into potential wrongdoing in state of ohio agencies it was an independent third party completely disassociated from the how department of administrative services that made the finding made it clear finding that the allegations by mis was the act against mr thomas they describe it as nothing more than office horseplay was the quote and they said that he engaged explicitly found that he engaged in no wrongdoing and that was not people that were not associated even with dia yes not associated d a s they function the higher inspector general enjoys great autonomy and i can assure you that they routinely issue decisions critical of the state and have no no interest in issuing a flowery opinion supporting state activities but then as as a result of everybody poking around i take it then they found thomas's sexual activities on the computer that's correct and he doesn't he didn't dispute engaging in that obviously that's a something you should be doing at work and he was and he received a discipline which is the maximum discipline permissible under the grid the last step before terminations he had an unblemished record before before this sex  like you know all this other stuff was going on with the suspension other tensions in the office and so then they just decided to give her a lesser job too well i would say it's not a lot to deal with i understand what's going on know i what is going on is injured share came in as the chief information officer for the office of information technology within d a s with him when he brought with him unless this is clear everyone's testified to this he brought with him this concept of i i till which is information technology infrastructure library he brought that idea and concept with him he wanted to implement it at d a s as a high level officer that certainly has profited as soon as he had been a d a s only a few months when he when he arrived i believe miss carroll was still on administrative leave as a result of the allegations in the pending investigation he inherited what he describes as a troubled team that miss caroline and i don't think there's if you take a look at the record i don't think there's any dispute that that he inherited a team that was a troubled team he articulated three reasons for this action for this reassignment he wanted to correct he wanted to address the dissension within the team that was colonel led he had the need to fill two email engineer positions in another department and he wanted to put a manager in the eye to position that he brought with them to the agency importantly as this court well knows lateral transfers ordinarily are not adverse employment actions unless there is something other than a change in work hours which is not a change here there is no change in pay here you have talking about for title seven purposes or for retaliation purposes well or for for discrimination or for the test is different for a tally asian is obviously the under burlington the test for an adverse employment action is slightly different this is a lower lower standard i'll concede that of course know it might be a different outcome depending on when we have a retaliation where you where if you're retaliating you give them a job where they have a lot less responsibility but just getting the same well that's understand your point but i would i would then come back with that is that it's crystal clear here that andrew share was the decision maker with respect to the reassignment and he explicitly testified he had no not he was new to the agency he had no knowledge of miss carroll's prior complaints  discrimination or retaliation that is black letter six circuit case law that if you if the decision maker had the relevant decision maker not merely some agent of the defendant must possess knowledge of the plaintiff's protected activity share testified he had employee on the forehead threatening to kill them the trouble was not discrimination oh wait a minute did he know about i thought you were going to say that the trouble was there was dissension the trouble is the use of the people but but what the source of that dissension was was not known to him or is that wrong because he knew about the the previous suspension in the previous incident when he came on board the suspension had not been issued yet when he came on board i believe mr carroll was on ministry of leave in the in the discipline was forthcoming he didn't know of the appellant's protected activity he did not that he testified to that miss carroll said of the protected activity and of course the incident itself wouldn't have been protected activity or not now it's not protected it's not a complaint of discrimination or a towel she complained about the investigation itself did she not at some point she she complained that the investigation itself was if you take a look at the six thirty cases if you possess no knowledge he testified the first time i had knowledge that miscarriage was complaining of retaliation or discrimination is when she sent an e mail out announcing a lawsuit a lawsuit of claims about two months after her reassignment was after the resign after her reassignment he said that's the first time i've ever heard of nani carol complaining of discrimination or retaliation is when she sent this e mail outs a high level people within s announcing a lawsuit she had filed and promising to file a federal lawsuit he said that's the first time i heard of it the same person who recommended the appellant for the ideal position an individual by the name of stuart davis testified to the exact same thing he said i worked in a different ok but a sort of sort of go back even if we're talking about pretext i guess you would argue that if it was a pretext like that's not even a pretext because he says he was trying to solve the trouble as well as to fill his organization chart i mean he writes it wasn't purely to make the organization chart come out the way he wanted well i mean he and he had some reasons or says he does to do that but he also took into account that it would potentially solve some of the interpersonal problems is that fair i think that's fair but of course solving interpersonal problems as a district court clearly found is is a perfectly acceptable way of handling interpersonal problems he said essentially separate the parties and the fact that in the district court was clear i think it said this on a couple of different occasions that while the appellant may disagree with the manner in which the happily handled the situation nonetheless if they had legitimate business reasons for making the decisions that they did in the us it's not discrimination retaliation again i would point to the the record is overflowing with evidence that clearly this team was was a troubled one it's not going particularly well let me just take you back to one factual question after this hearing by what's his name true lumen roman did he make a recommendation a finding he made a recommendation that the risk just cause for discipline of any particular discipline i believe if you take a look at his report underneath the box resigns his name it says three day three days and then they reduced it so as not to are essential but i think as you can see when the inspector general becomes involved it's hard to attribute any sort of animus to the department we have an independent third party conducting the investigation touching briefly on the cat because this is how the a palin is attempting to bridge the gap between these different decision makers again they've identified allison shaffer although this that she was named in the in the district court briefing but it was not  fully developed below but the fact that miss schaefer has a thirty year employee of d a s did not feel she had been discriminated against on the basis of her gender does not mean that she's dubious of any and all complaints of gender lodged by females that's an extrapolation that's not not supported by the record she never testified that she was dubious of complaints of janitors from a nation by other females she just felt as though she'd never been discriminated against if you take a look in for instance should she she can't serve as the cat's paw in this theory for the simple reason that she did not possess the requisite discriminatory animists of anti female for instance as you would see in stop the proctor hospital which is the supreme court case issued in two thousand and eleven that sort of clarified crystallized the catspaw theory there that was a usera case in the anti military animists and that case was overwhelming you had instances in which the two supervisors who served as the as the catspaws were making anti military comments were saying that the individual the plaintiff was taking all sorts of leave to attend to reserv and we just can't leave common sense at the door here to say that women don't discriminate against women is ridiculous they're the worst is mary fact i can say that i'm a woman i know but say it's not p c that's right but i don't know if the issue here they have all these investigations that all are based on d a s investigations the i g report adopted they the state always does this they have this big when and all these mirrors and smoke and they and they change it as they go through and that's how they get through their own rules and if we allow that to happen in this case we've got number one d s is just going to continue to be riddled with gender discrimination because allison shaffer said hey i don't i never felt like any of the women that complained her were discriminated against based on gender but importantly here i want to make two quick points and that is number one miss carol's own supervisor mr pennington said when he came on everybody talk bad about her and told her all these things that she was a challenge and how she did this and she did that was to share it was two months after but cher knew about it cher knew about everything because all of the men talked all the men talked in in the bishop case that i cited earlier that were on the panel for did blog that said although in most title seven retaliation cases the employer will be able to produce direct evidence that decisionmaking officials will not be able to do the protect activity direct evidence is not required but based on what pennington said when he came in his supervisor her supervisor based on the fact that pennington said i tried numerous times to tell share that she was not a bad person as soon as he came on and he gave them the hand again money and he didn't want to hear about it because he had been told and then they all sit down and lo and behold it comes to them to put nani carol into this hole  position so that so that it will take care of the dissension but they're talking about your state all the men talked they talk about we were against her because she's a woman or we have bad feelings about her because she's a problem is there testimony depositions or whatever you what are you relying on when you say all the men talk to mr pennington's testimony in  stick to pennington what tell me exactly what pennington says were getting to where i should look for it in the record pennington's it is cited in in our brief that pennington said that had she been a man it came everything whether it was a decision making for her position where she was actually a productive piece of us and that position as a manager whether it was getting a stapler or an employee or whatever it was always a problem she had to jump through or move more ho to get what she needed or get her job done than the men did and that she said miss carol you know where you stand with her and which it can be a good thing in if you're turning sometimes might be a bad thing but jus that she she she says when i want to she says it respectfully though and the men didn't want to hear it mr pennington said it his he said that this was discrimination he was that this was retaliation he said he was retaliated against for standing up to it he wrote it his email i'm getting this bad evaluation because i stood up and i will not continue this discrimination and down from sure right or only has a different view of certain things than sure well yeah because he works with her every day he's there he knows what's going on all the people doing sure has only been listening to everybody else including michelle for all these extremist reports and none of your time's expired man may i just conclude your honor by saying that you know there's so much weighing the evidence the credibility it a reasonable jury could find not even that th