construed as an actual terminations or constructive terminations is sufficient to present of the bigger the problem that i have is that your client was told to come back to work didn't come back to or said  hey are you coming back to where and he just didn't show up at it in mean i'm having trouble how would your e qing get to the point saying that he didn't just quit i think it's fair to revisit there is an actual term rationing or constructive termination in that's and also hard to read it is an actual terminations when they were the employer was ready willing and able to let him come back to work i think though that a jury could see the fact that they eliminated his position offered him after not paying him while he was on suspension offering him a different position that differed in material ways from the prior position that a jury could see that as a germination that's how he saw it and that's what he said in this his deposition as i believe i was terminated and i understand you could also and i think probably more appropriately in this case look at it as a constructive termination  adverse employment action which is what you've got to establish for you prime information case because there was no terminations here it was essentially a voluntary resignation of the district court found that the district court did not consider in reaching its conclusion that it was a constructive germination the fact that they stripped him of his supervisory position stripped of his suit my brother in his military i think he just said that in this case at least it wasn't significant enough  he based on the level of supervisory responsibilities as well as the deduction in pain not being was a dollar an hour i think and the district court basically said as a matter of law and the can and and the cases objectively intolerable right and i think the reasonable person would feel forced to resign basically and i don't think the district court got that right i don't think the district court at my reading of the just the court's opinion that it doesn't matter frankly because it's been over a review but my reading of the district court's opinion is they didn't really consider the fact that he was stripped of his supervisor responsibilities they didn't go through the supervisor responsibilities that he had as a lead else you know that what did what were those  actual ability to discipline hire and fire he didn't have it he had the ability he didn't have the ability to hire and fire he supervised he told them the employees and made them comply with company procedures and policies he was part of according to the people who made the decision to terminate him part of the leadership team and it says that in his performance evaluation your value part of the leadership team he had communications with the client there is the sensually one major client for this warehouse them and they contract with cain to to do their logistics were he communicated with the client made sure that the employees complied with company policy he sat in and in a separate area from the employees and so what they did when they took those positions or the supervisor responsibilities away from him is they put him or they would have put him on a level with the people that he had supervised but now maybe i'm missing stanning but i thought he he had some supervisory responsibilities but he was still essentially a forklift operator he was still doing the same thing that his speech his employees that the he supervised was doing he just had some additional responsibilities so in the sense that he was he would continue to do those same responsibilities as a forklift operator he would have continued as a forklift after upper air but he did see supervisory duties as well the assigned work he did training he consider insert company compliance from company policy right and he was part of the leadership team so i don't think the district court didn't consider constructive discharge of the reason for the constructive discharge is the demotion the likely right and that he doesn't pay but even if he hadn't been discharged you could make a separate argument just on adverse employment action of the demotion and the reduction in pay right yes but you haven't on that we're just looking at constructive discharge and whether the circumstances were enough to make it continued employment that the court could consider in deciding that there was a constructive discharge is all of these things happened prior to his germination and what is the evidence of retaliation i thought the demotion was because he had substantiated that he had been rifling through a fellow employees including his supervisor task seems like in this case i think it's reasonable for a jury to decide that it was it was not the suspension and the elimination of his position in the demotion was not in response to that those events occurred in april two thousand and sixteen at the end of april two thousand and sixteen for one with beginning for the other when they were reported to kane supervisory personnel then mr sampson filed his intake questionnaire with the i think that's one of the key pieces of evidence is that it if there is no causal connection between those incidents and this termination of the actual if at least a jury could reasonably interpreted the fact that he filed his intake questionnaire and then as charged discrimination was the reason for the impetus for the suspension plus it's far as looking at it i mean you look at the evidence as a whole because there's a lot here the reason they ga for his elimination of a supervisory responsibilities the demotion the reduction in pay a big three different reasons one is the human resources  personnel said that it was a disciplinary action that it was part of the response to his allegedly having going rifled through people's desks another one of the supervisor said no we eliminated the position because there was the burden shifting analysis that deals with pretext it would be so you'd st have to get over the st hurdle which is that there was an adverse employment action in that he was constructively discharged so claims of discrimination and retaliation and so when they go back and they look at prior incidents as the basis for extermination that's hostility towards his claims when they also give this is after the q b after the intake questionnaire was filed they gave him an a c r on that very day that show his hostility towards his claims of discrimination in retaliation so that they're letting him know that if you continues with making complaints he could very likely to be terminated because that's what the a c r say is they don't say because he filed claims but they say if you don't improve your performance then you're going to be terminated well wasn't that about not having a pallet on a truck it was in that's at least what i mean that you're not saying they fabricated that are you we are saying the is far is that you know we are saying that that's fair because that that there was no mix up in the delivery right on judgment so it was in it in our opposition to their motion for summary judgment in their memorandum which is in volume three of the appendix we did make that argument i thought he'd challenge the my understanding was you challenge whether this was actually a form of discipline there was a disagreement about whether this was this was the st step of written discipline or not and i didn't understand the challenge the underlying allegation that there had been a mix up on two different occasions with loading the truck right there is one good disciplining him for that was really because he messed up the truck or because they were angry about is complaint i think that's fair and in the memorandum he during his deposition did claim that it was  i have about a minute forty five if i could reserve please the court name is kathleen ware and i represent the appellee cain is able inc and really this is a case where my client had an employee for example he received well do we look at his suspension or do we look at when the activity occurred for which you suspended him i mean it is kind of odd that they went back and found this rifling through the deaths that had happened some time previously and then disciplined him for it and the deposition testimony in the affidavits below  demonstrate what had happened was coworker named diane combe was sitting at her desk when mr sampson approached her and he was looking for a radio he proceeded to rifle through her desk against her protests she was saying don't do that he continued that occurred she says testified in april of two thousand and sixteen she mentioned it to a coworker  and that was sort of where it stayed they had exchanged that he had done that she mentioned it to a coworker that coworker mr hillary i believe was her name then ok that's now two incidents and so when mr maxwell returned from vacation on jew one she mentioned for the st time i saw mr sampson in your office rifling through your desk and by the way that's not the st time diane complained to me said something about this incident that occurred back in april as well then that incident was reported to human resources when they were in the facility they'd flown out from san francisco when they were in the facility investigating mr sampson's claims of discrimination that's when it was brought up there's something else that has happened you should be aware of that this should be part of the knowledge that you have in your investigation and they asked for the statements or the and it was yes at that time the human trace sources asked for those statements to be made they were in the salt lake city facility it had come to their attention on june th while they were in the facility about those two prior insisted there was two weeks between reporting it to the supervisor whose desk had been gone through an h r being there what happened in those two weeks anything no they didn't take any action in think it was any big deal or mr maxwell conferred with mr curl the other supervisor in the facility and the decision was made to bring that to the attention of the human resources department when they were when they got to the facility yes at the time they they suspended him it was thirty nine dollars days after he had notified mr cooper or ms cooper a thing about the complaint right well he had he had case law that's enough for at least two to look at it carefully isn't that i think that temporal proximity should be examined in this case but i think it should be examined as a whole which is mr again going back to november of two thousand and fifteen is when mr sampson began alleging that there was discrimination in retaliation so it's a full nine months before his suspension and then during but he had march lamed yet to  the employment division right ministration that could investigated that he notified a chart that is correct in april of two thousand and sixteen that he felt like he was being discriminated against that was investigated well it was only a sampson kept restarting the temporal proximity clause a clock in other words he's complained on his written form he's complained in the facility he complained in april of two thousand and sixteen to  investigation was conducted he complained again on may th two thousand and sixteen to a g r an investigation was conducted then on june th two thousand and sixteen he filed his intake form a i mean everything's internally at the company and they can control it through h r in h r investigations once he complains outside of the company to the usa l b it's out of the control of the employer isn't it reasonable that the employer might view that as something you'd be more upset about than the internal i don't think so in this case because he had made so many internal complaints that were being handled very seriously by h r ms cooper mr alfonso were flying in from scranton pennsylvania fining him from california to investigate these claims he had threatened to file with the z he did in fact violate the intake questionnaire not yet his charge of discrimination just the intake questionnaire which is a series of questions and then he notified the  day kane his employer that he has filed the intake questionnaire he notified them again on june th they are aware of his claims they've investigated each and every one of them and they are also aware that he's pursuing a claim with the state agency they are letting that progress but also at the same time not being held hostage by an employee who basically his complaint isn't i was you were making up things you were making up in a c r that i didn't load a palate now he's saying that the racially discriminating against me well he admitted to the errors for example in march but he's saying i can't be disciplined for the because i'm making a complaint of discrimination under the st i thought he was saying maybe i can be disciplined for them but you're only disciplining me because i'm making a complaint it's a talent tory and that's isn't that his argument well and he also disagrees with what level of discipline it is  deny that he made errors and in failing to get a pal in both instances because one of them was his employer ain't and he was responsible for were there two instances where he made there were two incidents the st incident was in march two thousand sixteen a pallet failed to get on the truck headed to georgia the following day a pallet failed to get on a truck headed to pennsylvania he received an a c r for that and then on june t client customer had called and had asked for a response from him and he was very late getting back to didn't get back to them that customer called came to complain they had time is of the essence issue and wanted to address it with mr sampson and he did not get back to him so there was a complaint from a customer can you explain something to me about the fact he gets his annual performance review on march t and it's good to excellent reviews and it's all glowing and two hours later he's presented with the a c r and the counseling does that seem inconsistent to you to there's two reasons for that one the performance review reviewed his performance through the conclusion of two thousand and fifty so to the extent that he received he meets expectations  rating for his performance that accurately reflected his performance that ended in two thousand and fifteen when was created was created in march or was it created at the end of the year and then it just sat on a desk for three months you know i don't know i don't know when that document was created off the top of my head i know that they did they should it was reviewed with him in march rd and was a meets expectations through performance review the errors happened after they had that performance review well that the errors happened after that and of that calendar year but before they met that's right ok yes so those were those i knew about these incidents before they sat down and told him that he's on track and the is the abilities to support our team in a successful relationship i don't know whether those errors were brought to the attention of cain will he got his counseling report the a c r on two hours after his annual review on march t h correct so in his annual review he gets told good to excellent and then two hours later serious problems concerns about the consecutive days where the pallets were not placed on the truck that's right most importantly though it's not in dispute that he made those errors getting the pallets on to the truck and that that was his job and that it was important that all of the shipment for each one of those trucks be loaded and he didn't do that and there's no dispute that he didn't do that so he did receive a counseling report for that was there any evidence that others who acted similarly than other employees other forklift operators didn't who made similar errors fail to get a pallet on the truck didn't get the same type of discipline you know they would have received the same was there any evidence one way or the other about now there was not i'm just wondering how you get to whether you treated him similarly there was no i mean pardon me i didn't mean to go ahead and say there was no evidence that mr sampson was treated to similarly from any other employee we got to per pretext how should we handle the employer multiple bases given for removing the lead acid nation more importantly these are not pretexts shown by that the reason is false and there's no requirement that there just be one reason in this situation in this case there were three reasons and depending on each one of those reasons is consistent st he was suspended without pay for going through the desks he was in a supervisory position that was an ethical compromise of his job duties and so h r felt that a one week without pay suspension would be disciplinary he was also reassigned from the lead forklift operator to just a regular forklift operator that position was actually eliminated but for purposes of of the h r they took that position his pay because he did not he was not qualified given the ethical breach that he had made by rifling through the desks those reasons are entirely consistent with mr maxwell and mr curl who testified that that lead position wasn't justified in the facility because there weren't a number of employees underneath justifying a supervisory position and that position would be eliminated they saw an operational reason for elimination of the position h r saw it as a disciplinary reason they're both consistent so all three of the reasons for his china nation are excuse me all three reasons i think it is important as your honor pointed out that he filed with an administrative agency outside of the company because that seems to be what triggered the most serious action against him is in this is you can and you can actually hang your hat on the participation clause rather than just the opposition clause in this case because you actually by initiating that industry to process started the inaction that could based on participating in a claim of discrimination retaliation with an administrative agency and it is more threatening to the company and so i think a jury could find that they took that action when he notified them that it didn't then filed on june shot across the bow in each case adds to that but i think if you look at this is that is he took his most threatening action and they took their most threatening action that there is it is reasonable to him in for a job not just going back for the year that occurred prior so you could look at this as cain wants you to is there taking action against him based on an error but you could also look at it that they're taking action against him based on his filing a complaint and mr maxwell the supervisor of the the operations center knew about these claims that he had rifle through the desk and chose not to bring it to the attention of anybody chose not to take any action against mr sampson it was only after he farmer's complaint that the your employer took action against you thank you thank you both  arguments the case is submitted and the court will stand in recess until nine o'clock tomorrow morning