you judge your honors may please the court my name is wilson following our present the plaintiff i want kathryn that or in any manner the statute says that participation in any manner in a title seven investigation causation is the following you said that your client was terminated because she gave documents the reception energies and or persons of what's and she in fact terminated because she took documents from her employer in violation of obvious separated because the she she only did one act no no no i mean she did two things she she took documents five separate files entirely separable in several from the act of using the documents in these various proceedings and then we say in our glover case that you can distinguish of separate acts in that case we talked about the difficulty of limiting activity with respect to testimony and that it was difficult to slice that alone too thin to use a phrase but this seems to me entirely distinct got these two separate acts and no one is suggesting that you can't be honor the distinct inseparable idea that was presented in glover contemplates that there is a separate and distinct act that an employee in his own for example take the case is that glover itself sites in jackson versus state st joseph state hospital the employee filed a charge protected activity and then try to get a coworker to change their statement to the e e o c turton the coworker of the employee was terminated for the second act not for the protected activity of filing that you see charge in the jones if i could just follow on that and build on my colleague's question do you dispute that your client's review of the three files from high point high point jail itself just looking at it violated state law how can that be protected activity oh i'm sorry r i think i misunderstood but that's why i said i got it i thought you were saying four times i thought you were saying that giving the document giving those three files  well even if we couldn't ordinarily sever to lawful acts that go hand in hand how can we give protection to an illegal act going hand in hand with a lawful oh your honor the law states that or this i will have and doesn't it doesn't say that gives an immunity for illegal  state law to the o c was a protected activity despite being illegal but even there the court said there were limits to the so that that definition and ultimately found against the plaintiff that did not it did find its a plaintiff in that case however if i guess the plaintiff on calling causation grounds that were would not follow under this court what's the difference the difference is in that case they found that the they were able to separate out the two the policy violation and the the e e o c participation over this court has stated that that slice is too thinly but we stated it and glover i guess what i'm referring to in the case where it was just too difficult were of you've got a witness testify actually testifying  that it even an illegal matter was protected that's what the that's what i was getting at just i think it's hard to read the title seven to say that protects illegal activity well your honor the activity but of course if you retitle seven is not protecting illegal activity there is no conflict i'm sorry i didn't hear the last part only if title seven does protect illegal activity is there conflict here between state and federal law if title seven doesn't protect illegal activity there is no conflict correct your honor however it is our position lead obviously just d s and ask you a hypothetical one because but your case is there's nothing wrong with the truth of the documents correct yes you're right it would be intrinsically to documents that effectively here the question is which w and yours just to back it up to give to put it all of what we've been discussing in context protect activists are going to ask you a question i'm sorry that you and your opponent spent a good bit of time trying to talking at cross purposes i thought as to what should apply you suggest that this is a direct evidence case they say i've watched this is an indirect evidence case doesn't matter under your theory of the case whether we're talking about direct or at the ply the burden shifting premise of mcdonnell douglas as a matter here case yes your well your honor in the long run i would say now if you analyze it under either you would get to the same result  the direct evidence is in this case because we have a letter explicitly stating that she was terminated for doing these three protected activities except that as i understand the letter was raised on her is on the purpose of doing it but not defendant couches it in terms of their policy rather than the actual tally ation for actually doing what she actually participating that doesn't make any difference in the long run because she was terminated for doing a protect participation activity about instead of taking five files taking all of the files and giving them to the e e o c and saying maybe there have trade secrets in them and in your view that's protected activity yes your honor it is providing evidence to the city as part of an ongoing so you're consistent this issue comes down to if a  defendant can separate out a violation of their own policy from the protected activity when the employee only does the protected activity which violates the policy then an employer employers could potentially wri policies stating that making a discrimination complaint or participating in an ego see investigation is against policy and then when an employee engages in obviously protected activity they can say well we didn't fire them in retaliation for to stop the employee from pursuing title seven claims it's it's neutral it's out there just as a policy that's true your honor however in this situation  it comes in of up and comes into conflict with title stuff which provides broadly that participation activities are in any manner protect your owners never participated in protected participation activity definit fire for because the statute says in any manner and this court has said that it means in any manner defendants cannot fire her that she was fired from her position because she violated and employers policy that she not go into these personal other people is that correct not to go into them but her own purposes for her own purposes and then when asked about authorization without authorization without authorization well i think that i will go back to what your colleague said in his have an employer's policy that the employer sets up and then says a violation of that can't go to evidence can't go to e s c it's that would be contrary to the statute if the policy had said as mr as a point of counsel had indicated that there if the company or any company adopted a policy that says you cannot participate in the e e o c investigation it's an act that w information is not protected on the statute and that's the approach the six circuit has taken that as an approach the seventh circuit has endorsed there's a separate approach that's been taken b e from my point of view this case involves nothing more but the application of what are traditional standard mcdonnell douglas principle to undisputed that will instead of going out of saddam authorized illegal activity now i will tell you in europe that's when the very first question i asked you yes you were not kenyan to illegal activity you said that your client fired this woman because she violated its policy not illegal activity but if the policy of the employer i that's what i believe i correct in said anne and state law because that  position or is it not it is about that that she violated state law and the policies on competence just the policy if it was just your firing be justified yes it was ok well explain to me how you would do that under lawful because well the point on the laughlin is is that even though they and or your in that case in the court had saved her employer's trust by copying confidential material and sending it to an outside party yes immunize insubordinate disruptive or non productive behavior at work right and the behavior here was violating the policies on confidentiality long established policies policies which apply across the board but if all the people have done the same thing then she could then show that pretext that other people are treated differently that would be valid evidence of showing right and that was standing at the accessing was a violation valise of a policy or even the law correct that would be correct ok that would be correct if she could but she has just this avowed entirely that she has any such at and that's based on the facts of this case doesn't based on the facts as a  perhaps unique facts where the end a vigil miss glover actually represented with a sound was employed by a south carolina law enforcement agency known as sled but she was called to testify in connection with a lawsuit in south dakota back at a time when she worked with the u s marshal's office and what happened was during the course of that testimony which had nothing to do with slab she apparently made very disparaging remarks about marshall accusingly any number of things which the court said by any standard was probably on ray's right but i guess the point is it seems to me that in that case it would have been not too difficult to sever those kinds of  from the bulk of her testimony which was relevant to the claim and yet the court said we're not going to do that the court said it was virtually impossible to do because what they what happened was the marshal apologize that that that doesn't matter when really i mean you can make an argument that a cold blooded decision is war damaging or more evidence of title seven but elation anywhere it does not show that she was that treated any different than anyone else but what i would sit down to say about the glover case your honor is that in that case the south carolina law enforcement agency got complaint from the marshal service and the south carolina law enforcement agency acknowledge that one of the reasons that she she was terminated was because of the exercise of poor judgment in how she handled herself in the deposition but they that's what the court said we can't separate out and parse her deposition testimony the court in the lobby went on to say and sided with approval that there are other places here about that she was discharged because she talked about this to somebody what if what if she had a photographic memory and simply memorize the contents of these files and then testified to those contents in go with the hypothetically you were given she has a photographic memory a photographic memory if she were to disclose confidential information in those files that would be an unauthorized disclosure  court but i think it is instructive for that is virtually a sign that was decided by the tenth circuit which did look at the circumstance and they circumstances where this the said yes the disclosure of confidential information and violation of policies and violation in that case of state law and in and that case because it was medical records themselves in point to agencies and persons who had the right to know or need to know basis so don't have to balance that with you always have a motive to have that reason and enforce it because a hot day i can fire you retaliation floor let's see what what is connected what sinews what bones and muscles and vessels and those things are there that get to the purpose of title seven and eight and that's where we say that that's the plaintiff has the burden in this case to demonstrate that the reasons given were false and the wage she proves discrimination or retaliation this case is the same way she would prove retaliation of discrimination in any case she has an opportunity to challenge the reasons given she has or opportunity to say that there are other people who did the sign thing and were not treated the sign and there's no evidence of that in this case if my summarize your honor the this case i a straight forward application of title seven not donald douglas standards the facts are not disputed this is not a direct evidence case and the  eastern shore is left to the plaintiff's discretion whether to proceed by direct and indirect evidence or by means of the mcdonnell douglas burden shifting framework all this evidence or all of this talk about disproving the lawyers legitimate reason is unnecessary because the defendant also misapplies the distinct inseparable concept of glauber distinct inseparable means that there is a different act that the employee engaged in i went through in my in my primary case jackson this case there was a single act that both violated the policy and was a protected activity to the extent that that and that that that that act by also violated state law again under the supremacy clause when federal law says that it bars terminations for participation activity in the state law says that you can't take the documents federal law has to prevail when those two conflict his deposition in this fashion would be to slice things much too thinly in essence the employers argument is an attempt to bring through the back door of the reason of this requirement that title seven test for title seven testimony that we have our human jacked up and your honest picked up on this that the disclosure itself would have to be made even if she did not provide the documents having to distinguish between one kind of disclosure and other kind of disclosure is slicing too thinly this is the main problem with the finance argument assertions were in clover again to quote reading a reason this test interest i know for a is participation clause would do violence to the text of that provision and would undermine the objectives of title seven the plain language of the participation made in good faith however to that point whatever was describing was a a fairly common practice of employees feeling their their time coming for doing something else or filing it needing a e e o c complaint and then doing something that as you can see policy thinking if they're a new employee is not immune just because they file in a year c charge from violating policies or however i get that i guess what troubles me about this case and i understand that it's difficult to analyze this in the context of not having a reasonable standard but i asked you earlier whether there was a process or proper process that your client should gone through to receive and obtain these documents and i think there was i think there was a subpoena process as you could have engaged then and i guess your response to me is going to be all of that doesn't mean that her method was on reasonable per se but that's the problem with these kinds of cases you say on the other hand that an employee can't is not completely immunize but where do we draw the line and you say a lot you answer where do we draw the line good faith your honor she's