thank you ma'am please the court my name is matt besler i represent appellant susan mom i'd like to reserve three minutes for a rebuttal all right for whatever had happened up until that point on the morning of february twenty first two thousand and fourteen the status quo was that susan mom was keeping her job her supervisors had just told her you're not going to get fired that changed as soon as she complained about the pay disparity between herself and a male coworker and said that she had hired a labor lawyer to sue the township over it there are two central issues for the court the first is whether her complaints were protected activity under either federal law or michigan law or both and the second is whether she produced enough evidence of pretext to let a jury sort this all out on the first question a pretext to protect that activity there's actually a sub issue about the differing standards under federal and michigan law but under either standard what susan mom did in the february twenty one meeting was protected she said that she was tired of being underpaid for all these years in relation to keith locky she said that she was filing a lawsuit about this she said that she had hired a labor attorney to do that in am quote filing a lawsuit about this close quote that that's from her deposition testimony well i was just going to say why is it automatic that if you say you're underpaid relevant to another work or gender that you're bringing gender discrimination claim i mean it's just quite hot i mean my my first reaction is most people that complain about being underpaid not range gender or anything else is just i do more than that person and i'm not appreciated why do we assume that gender discrimination well that might not always be the case if we look at the seek guidance tells us that the question is whether the quote circumstances show that what the point of complaint about quote would reasonably have been interpreted as opposition to employment discrimination that seems to be how schwartz interpreted based on his query to her after her complaint and this court has said what is what is short staffed actually say if you actually say sex discrimination or do you think something else well what he says was have you been sexually abused now that's a little different it is a little different but it would have been rather a non sequitur to to jump to sexual abuse just the same as it would have been to say have you been held up at gunpoint it would it would be a reasonable view of the record to presume that either he said or in the heat of the moment and we know that this was a stressed and emotional meeting where everything happened so  fast he meant or he said sexual harassment and this court has said both and yes the end of lewis first quicker state that employers reaction can be evidence of protected activity it's a reasonable reading of the record to presume that that although he might not have hit the nail on the head he was certainly in the right ballpark with that  implicit complaint are protected comes from the circumstances in which these types of meetings occur they occur in situations where employees are often frazzled and in meetings like this one which are often stressed if we are too stringent with what we protect and what we don't we get to a situation where we don't protect people simply because they lack either the sophistication or the composure to articulate themselves properly at a time when they are fearful or frazzled and that's why the case law and the guidance allows for some play in the joints as to what is implicit but still protected counsel if i well judge there are a couple responses to that first of all it probably goes without saying that it's obvious to everyone in the room keith black is a male but to to your point about the history  when she complained on february twenty first she didn't bring anybody else up including the other three folks that she complained about something like a decade earlier  so so you know those those have to be set aside because the these are jury questions and whether a jury believes she was a good employee or a bad employee and constantly complaining employ those are arguments for foreclosing those are those are questions for a jury to believe or disbelieve with respect to the point about not referencing gender specifically that is true she did not say kate lackey who is a male that is not required though because the e e o c guidance tells us that the question is what the circumstances show how would it have reasonably been interpreted and and there is at least some evidence in the record that that one of the one of the supervisors interpreted it in the realm of of sex there are two cases that support this conclusion the first is from this court that yes the in case and which the court held there was sufficient evidence of protected activity as to two types of claims one at the national origin and two as to religion but there seems to have been no statement made by the about religion and yet the context including the threat of litigation showed that there was enough for a jury to believe that the employer reasonably believed that was the complaint and then the second case is under michigan law we haven't really touched on the different standard the lower standard under michigan law but the seminal macklemore case there was no explicit reference to sex discrimination by the it was enough in that case that the plaintiff might be complaining about quote some type of prohibited bias and the same is true here she might be complaining about some type of prohibited bias from the context and so even if the court were to hold there wasn't quite enough construing the facts in her favor on under title seven michigan law is a different bar it's a lower  bar i'm going back to judge nor since questions like i can't remember these prior complaints of murders were not specifically they were about pay but they want to bout gender discrimination and i write about that that's correct that's correct although it's also true that the fact that she made even related complaints on the same topic or touching on the same topic two years before of course doesn't mean that she necessarily was not complaining  gender discrimination later and you know if we if we talk about the continuum of time the chronology we don't have to look ten years back to get some context if we look for days forward she filed a pay discrimination charge with occurred i i i don't want to guess and be wrong my memory is and i'll look while posing counsel speaks my memory is that her earlier complaint at least the o fire her in fourteen what was their condition at the time of the earlier comply well at least mr schwartz who seems to be one of the driving factors of not the driving factor the township supervisor he was not yet with the township at that point and for philips the clerk and mckinney the treasurer i just don't remember your honor if i ever knew whether yes certainly if those folks weren't there it diminishes any inference that could be made but even if two of the three were it would require a negative inference against her which of which is not the role of the office here today that's correct judge ok question while not being the person it was directed to at the time the mr philips the clerk became the clerk and about two thousand and eight so he was not present or at least he was not the clerk at the time of that two thousand and five two thousand and six prior pay disparity complaint that susan made your honors were asking that the court for the district court's decision to grant summ judgment to the township again number one because her allegations or protected activity is simply too vague under either standard she will just come to me but what what other meaning could i give in to that your honor i don't want to speculate for them but she did mention a labor attorney and in her complaint number three that she filed or i'm sorry that she submitted on february twenty fifth which is if you will she is time for her pay request to complexity of her job and therefore it was it was unclear what she was asking about and as counsel pointed out the supervisor asked you know have you been sexually abused and she said no but i mean i think that means he's unclear what is she talking about why is so what is the problem that is he was asking for clarity and she still didn't provide it think he's right she signed it february twenty fifth the notice of charge that i was looking at that was directed to the township was signed on march fourth two thousand and fourteen well what do you think if they did she also check the little box the gender discrimination she checked the back saying retaliation and sex and equal pay ok with unclear and i would suggest that perhaps that's not the case when you look at what she started doing in the first lies i think had a question sure but you've mentioned the the talk about hiring a labor lawyer that really doesn't lead you down a false path because she wasn't a union employee right you know she wasn't so it couldn't have been a union related point had we do i don't you know i think it's i  point to put the complaints on february twenty first in the context and i think it probably does count against her that she made prior generalized complaints but she threatened to sue before not that i'm aware of by this record your honor doesn't that does not change things a little bit i mean it's one thing to say i'm underpaid i'm not appreciated this job for and why am i not getting more money than others you know actually compare yourself directly to somebody else and then say you're going to soon you've got to that point you've got to link the dots well your rational actor they were uncertain i mean it is unclear what she was suing about other than she felt she should get paid more there was that was the follow up request by the supervisor you know asking her why are you doing this or what what do you mean keep asking for clarification and she she doesn't provide it other than to dispel any who happened to be male i mean post at after the fact she says i believe it was sex discrimination and her e e o c complaint and i wasn't before trying to say the e e o c complaint was on clear  apologize if i misspoke that wasn't my point but during this discussion she's complaining about keith lackey who she's complained about before and as well as others so it wasn't clear that she was saying it's because he's a man it's or anything other than because he's keith lackey because who he is they went back after the conversation and they said ok why do you think she's going to sue what the theory was there g three neutral observers hear this and they go back and say i wonder what she's going to sue about i just don't know where else this would point other than gender discrimination she didn't mention age i mean she didn't mention anything other about keith lackey other than he is keith lackey so again it was unclear they didn't know that that was the purpose of the questions your honor about the sexual abuse or have you been threatened they were they were to the point being again your honor that it was it was unclear based even on the questions that were being asked of mrs ma after she laid this all out she wants ten thousand dollars she wants the i t contractor not to be fired or if all else fails she'd like a severance pay and to call it you know it's call it what it is if there's been a breakdown in  employment relationship those were the things that she has articulated to three of the township supervisors out of nowhere this this lead into this were discussions about discipline related to her job performance discuss all of the discussions in february had focused on that and now there becomes this discussion about paid disparity you know out of nowhere as counsel is you know it's a very fluid situation and as the township officials have indicated it flabbergasted and they immediately became aware that this employment relationship broke down even as ms mom her set herself said during the course of that discussion that thought was not unique to the township she had suggested it herself for those reasons we would request that the court find there was no protected activity it being too vague to just requiring too much guesswork in this in the scope of the pretext your honor there has been some discussions that touch on that and i want to double check my time  here the district court indicated that the township's terminations decision that resulted from their lack of trust or loss of trust culminated after a number of prior instances of misconduct by the plaintiff we agree with that but what do we do about the fact that two days earlier before she threatened to sue they decided to couple days earlier they decided to not fire her and give her a one day suspension after the supervisor was persuaded not to fire her that was centrally his testimony he had wanted to fire her because of her job performance issues ten thousand dollars and you're not going to fire the i t contractor or i'd like a year severance pay and let's just call it quits or or i'm going to sue you and and i'm going to sue you that th township said wait a minute we just disciplined you for one day and you're coming in here making all to made to the to the point where everyone agrees there seems to be a problem here a lot  that surely is protected conduct if it's not  i'm sorry i didn't mean to cut you off even in the fox case that is cited however one of the allegations in that case was the plaintiff said i'm going to sue you there's there was no mention of discrimination in that case but there was  the mention that suit was going to be filed here and that wasn't enough to be protected activity whereas here similar situation there's a claim that that was supposed to signal that that was discrimination or a suit based on discrimination but there was there was nothing tying the two together argument maybe last could tell us where we are ten was just again i see that i have a about two minutes left i'm sure that you have about two and a half minutes left sure unless unless the court has any further questions the township would rely on its women well your honor as you know two thousand he dashed three or the comparable michigan law stands separate from the underlying claim of discrimination and even if she was wrong  that that lackey was paid more because of sex it's still on lawful to fire her for making that good faith allegation what do you know that me well not to put too fine a point out counsel i wouldn't get anything miss mom would be entitled to her her her back pay reinstatement or front page depending on what a court in a jury would roll last last i entitled to recover what she would have lost in terms of pay as a result of the firing under title seven even if she did as to the questions about what other basis would there be for her complaint what other theory and that is sort of the point a jury could look at this and say you know the ockham's razor the most obvious answer is likely to be the correct one she was not a union employee the place it seems that the employer when and where jury might go is that yes she was referring referring to sex discrimination and and in both macklemore under michigan's lower bar and you have the and under title seven a specific reference to gender has not been required the second point is about the prior complaints in my ten seconds left to go back in time several years and look at prior complaints she has made and infer from those what she said in the meeting would be to make a negative inference against her which is not this court's role summary judgment with that my time is up i think the court for extension of consideration we thank you both for your briefing that counsel an argument and it's been of service to the court to have the case presented in that with that i believe we can  travis if you could just see the attorneys disconnect and verify when that's been done one second thank you all the attorneys are off line ok judge givens again i'm just going to hang up from the courtroom and you can confer with judge norse and judge sutton and if you if anyone happens to get disconnected you can press stars ero and travis will come back on the line to help you ok have a good one