good morning your honors my name is joshua carton it's my honor to represent the appellant timothy would i'd like to reserve about three minutes of my time for a vital please watch the clock will do so thank you may i please the court by removing logic from the pretext analysis not analysis the trial court effectively stapled shut the wizard of oz as curtain in this case this case presents nearly the entire catalogue of ways that an employee can prove pretext in order to defeat summary judgment and the trial court erred as both as a matter of law and granting summary judgment and then again by an abuse of discretion in denying our motion to alter or amend the judgment under rules fifty nine and sixty to provide just a smattering of context my client mr wood the nurse in the niek you the neonatal intensive terminating her for a minute they did your honor and then based on a couple of pleas from coworkers it appears that they rescinded that decision to terminate and left her employed not only did they leave her employed she was never drug screened she received multiple disciplines after that investigation and continued to be employed up through the conclusion of discovery in this case despite being arrested for being well at least under the suspicion of impairment with the blood test finding that she had a highly neuro active drug in her bloodstream is that the record i don't that is in the record in the record under the additional statements of fact that my client provided that were not  was was not wrong but second it highlights the hostility that he received from the hospital when he made his reports here's a nurse who was not only suspected of being impaired but can actually ends up having a problem that goes both to the hostility element which is one way a employee can prove pretext and it goes to the disparate treatment aspect where here is a nurse who is accused of impairment turns out to have treatment comes with the measure of policy i'm foresman applied to mr wood versus for example ms liddy the impaired nurse and the nurse who started the i v infiltrate that ultimately resulted allegedly mr woods terminix claiming that it was wrongfully terminated yes you are and if i read this record correctly he was one of the four or five people who were subject to the cutbacks and they were all terminated at the same time in various departments that's correct your honor well how does that support your claim that he was singled out when he was just one of four people who were lawfully terminated presumably in the  the group that was terminated was from a variety of departments mr wood was the only contractor nurse in the nikkei he was the one person in that department who lost his job and the stated reason was that they were having  nurses having to cancel shifts reduce hours and all those things i've proven in the summer for summary judgment purposes that that explanation is unworthy of credence because mr wood was never counsel cancelled he never had his hours reduced in total so to say there was this need to reduce vailable hours that is logically inconsistent when they could have at any point said mr ware we don't need you this week we don't need you for hours and the other three who were terminated apparently you know would justifiably terminated because he ducks and it's they have but when it came to your client that's a different cup of tea that's you that is that is one aspect of my argument there are and it's borne out in a sense by what we included in our rule fifty was terminated in may twenty fifteen and those positions were posted in two years later you haven't seen nov twenty seventh that's correct but the idea here is the timing is at least suspicious but that's just one of the reasons that as an employee may prove pretexts in these cases another option for an employee is to argue that there was a disparate treatment when holding mr wood to a higher standard then the hospital's own infiltrate policy in the infiltrate policy says at certain points when the i v infiltrate leaking fluid in the tissue progresses to a certain point you're supposed to notify your provider no one disagrees that that's the hospital's policy miss harden the decision maker testified that she was holding mr wood to a higher standard than the policy itself but that's not part of the role for termination claim i mean what i don't understand is let's assume that there was a proper reduction in force and he was correctly terminated you claiming that he was not properly terminated but this infiltration is something that happened there after so that if he was properly terminated then how would we assess this issue of that infiltration it seems that it's not really related to that well i had that same question your honor as part of this case and the issue that came up with that is when you have an inconsistent reason for terminations that's another method of proving pretext whether inconsistent or they just additional well the hospital believed it was inconsistent because in the in the email where they decided to correct it they literally say  harden gave him incorrect information regarding the reason behind his dismissal at the time he's told it's a reduction in force the next day he goes and file and applies for another open position within the same hospital suddenly there's a new reason given it says no you're no longer eligible to work here because it's not just a reduction in force it's also this i v infiltrated an incorrect just mean she gave one reason and really there were two reasons then the two reasons that need to be inconsistent for that to be true could it be possibly but this is summary but they don't seem inconsistent is the thing i mean what is the logical tension between the infiltrate discipline and the reduction in force one allows you to get a job elsewhere  the hospital another one does not what you have a separate claim for that isn't that a different type of lawsuit if in fact he applies for employment and he's rejected you can then raise the issue that that's the reason why who's rejected and not in this particular case just block because they say they came forward there are a lot allegation is oh no that was another reason we had all along never mind that we never told you about it never mind that that we are going to in centrally lie and say we told you in your final phone call it was the i v infiltrators you know that did not come up in the final phone call it came up after this process started he was terminated before that correct correct seems that stands on its own footing he would think so except they made a point of calling him after his rejected job application to say and in the rejected job application was no you're in eligible to work here well that didn't make sense if he was just fired as a reduction of force so they had to have another follow up call with him to say oh wait no you really fired in addition to the the contract reduction in force it's also this other reason well even if they had two reasons i didn't see anything relating seven mr brough skee as soon as they find out that this complaint has been filed with the state board of nursing is immediately announcing that the impaired nurse is going to be going to h r with a complaint of harassment and bullying and so she with the decision makers that she considers mr wood's action of rip of following the reporting policy to be harassment and bully didn't say that but he said that the terrorists will probably complain about that she did very well could your honor but but again on summary judgment the inferences here there are that there is frustration at ms ms team and said oh you shouldn't report someone like that you should just wake her up and ignored you drop your claims against her say she she's your honor thank you very much may please the court your honors my name's eric gallo and i represent the a police in this case the maricopa county special health care district and the individual defendants i'll refer to them collectively as the hospital i want to focus my time on the pretext arguments opposing counsel mr wood have raised a number of issues that i think are inconsistent with the actual record in this case as your honor pointed out in the opening remarks the fact that mr wood reported conduct that he believed might be in danger in a patient at the hospital he did so in april of two thousand and fourteen he was the second person to do that he made the report three days after the alleged sleeping incident which is what he reported he was the second nurse to report that there's no evidence in the record that anything adverse ever happened to that first person to make the initial report  well the issue there is in this team and even if she chided him as he put it in his opening remarks she's telling him look we have to make sure that we're correct on this and we actually have a duty to report policy so there's a sleeping on the job policy and there's a duty to report policy so the fact that the hospital maintains two policies that require a nurse to make a report not only to hospital management but to the arizona border nursing indicates there's no hostility is to steam and was the very one who placed the nurse miss liddy on leave subject to being terminated it was only rescinded as your honor pointed out because the allegation that was made to the patient hotline could not be corroborated as it was with the prior nurse a year or two earlier so she rescinded her termination nonetheless there were write ups and they were told to keep an eye on the sinners they called the nurse in and they asked her about it they documented her file about it they made sure that to watch or they took mr woods reports of this nurse a very seriously there's no evidence to the contrary and later when they find out that they get a subpoena from the arizona border the nursing  and as your honor pointed out there was this nurse that came in that was reported and she made a complaint to a supervisor saying she just received a report from the board of nursing and she wanted to go to h r she is the one that characterized it as harassing as bullying by the southerners might mr wood she wanted to go to h r they made sure that she had the opportunity to do so the two arguments that mr wood advances to try to show pretext are that there was no need for the reduction in force in fact the other argument that events is that the infiltrate policy the i v infiltrate policy was just made up but that the so i understand his reduction of force argument to have an additional component which is that even if the reduction of force was needed it didn't make sense to hire but to fire an independent contractor essentially instead of employee because they could have just reduced his hours and he was less expensive than the other people anyway  do you have a response to the idea that he was a less expensive employee well they did reduces hours they reduced his hours to zero and his hours were guaranteed at forty eight hours a pay period twenty four hours a week guaranteed admitted in the record so he was required to work at least twenty four hours the fact that he had never again he alleges never had prior previously been asked to not take a shift as is irrelevant miss harden when she was tasked with looking at the departments that she managed which of the five departments in which those five employees were were riffed there's no disputing this record that she looked at the census data that she looked at the over staffing needs of the number of hours that were given and she determined the proper amount of hours that needed to fill those patient needs she made those determinations that is not even disputed what is disputed is mr wood says well it shouldn't have been me was he the only independent contractor he was the only pool nurse in her department so she had five departments that she managed among the very large hospital and they were all women's needs and patient they were full time equivalents so if you keep mr wood you're going to have to find a way to reduce hours from somebody else who is a full time equivalent who is being paid benefits who does get paid time off who is contributing to the state retirement system all of those things you would have to then take the hours that you would give mr wood and and take those hours away from somebody else who has a full time equivalent of getting paid all those benefits so the argument that it's not a cost savings is just basically legal arguments no factual basis to it at all there's no facts in the record and in fact everything about the riff was admitted it's just you should have selected me the ip infiltrate policy is very similar to that mr wood admits that in may there was an i v infiltrate he took over from a prior nurse and the baby that he was caring for had an i v infiltrate he claims he reported that in a timely way in accordance with the policy miss harden who was asked to investigate it determine that he didn't the record is replete with the e mails where she's investigated or she's interviewed the doctor she interviewed the other nurses on staff including m who was the primary nurse dealing with mr wood and determine that he didn't report it in time that's the only issue he takes with this issue he recognizes there was a infiltrate and he recognizes that his behavior to  supervisor mr brodsky was inappropriate he said to her actually to the supervisor after speaking with her she acted like a battered spouse she came in and she micromanage my process she told me to move my computer we were trying to get the baby ready to transport to a specialty hospital it would you know you know a lot of facts the more facts you dog you the more you come closer to the line of maybe we should let the jury so they're all out but what i'm curious about she claims that nobody else was so cool discriminated against because of the infiltration situation that any of the people who will be disciplined because of that was she the only one let me address that question because first of all the facts that i just articulated for infiltrate she says i don't know i have no personal knowledge of that was there discovery about this question i don't really understand why we don't have an answer that's better than that one deposition question did they ask you to produce any documents about i v infiltrate errors yes the fact that she doesn't know if anyone else was fired doesn't mean no one else was fired she wasn't the thirty six representative for the hospital she wasn't the corporate representative she was an individual defendant s me but it seems that all we have in this record is that he she was the only hasn't developed the record on that at all there's no record evidence that she that he was the only one terminated for an i v infiltrator that miss carden set it up a session she said yes people have been fired for violating policy and then he said all how many others and she said i don't know and then you guys are talking about the reporting of the failure to report right now that's not the actual occurrence of that right and that's another issue that i think needs to be addressed the violation was the timely failure of mr wood to report infiltrate not causing infiltrate so when he raises issues and says well it was the other nurse before me that caused it is completely a red herring he wasn't terminated for causing an i v infiltrate but as a testament to discovery about other incidents of not reporting i v infiltrates that would have been analogous and you're saying that whatever happened with that it's not in the record here it's not in the record here i also  force stayed in place well there's no record evidence of that developed by the plaintiff but the there's nothing we have about that yeah there's nothing in the record about what took place after that now that the  the issue was mr harding looked in january and february of twenty fifteen as to the needs of her departments and at that time determined what the patient volumes would be and so forth she made a recommendation already made the recommendation i think in february it was acted upon in they will the four people that's greater than the recommendation was made in and then acted upon as having if the recommendation was made correct another thing that happened after the terminations was this issue that mr carden raised about the arrest of the centers mr wood is intent on being right he wants to say look i made a report that a nurse was impaired as was his duty under the policy and his contract and i was right well the fact that he's right is not material to this question the question is has he proffered evidence that undermines the hospital's reasonable good faith belief that he did violate policy to the e mail exchange where they're trying to figure out how did to provide him with the reason for why he was fired well there's a couple of emails in the record the one e mail that he's referring to is one from human resources giving a report to the other human resource department and she noted that miss harden when she told mr wood about his termination didn't give him both reasons she gave him one reason there's another email in the record that shows why she actually discusses that with a start lower to determine should we give him both reasons or not let's just stick with the refreeze and because that's easier and will otherwise be here for hours talking with him about it that is actually her statement in her e mail so him the reason you were reduced in force and that's that he then applies i guess the same day as to what he submitted to the record he applies for another job in another department and claims he was told by a recruiter that he was  ineligible it was at that point then when the hospital said we need to give him all of the reasons human resources says we can't just give him the one reason we need to give him the two reasons both of them and the infiltrate which happened two weeks prior to the that's pure speculation i don't know what the needs of the hospital are or or anything of that nature and he hasn't replied sense so it's not part of of this appellate record let me address one last final point in the first amendment context mr would contend that his reporting of this other nurse was protected activity under the first amendment it wasn't the case law is very clear that when it's it is part of your official duties that you have to make a report and you do as part of your duties it is not protected speech so i thought that maybe the protected aspect here though was that he not only said that mr libby was impaired or sleeping but that the supervisors didn't respond appropriately and it was that supervisor part that it wasn't clear to me he really had to report to avalon or however as i understand it included not only something about libby being sleeping or impaired but also that the supervisors had not adequately addressed the issue that was misleading statement and slitty informed  not a word it raised issues such as this other nurse is impaired she looks like she has some kind of substance abuse issues she's she's stalking me things of that nature not once does he raise an issue that even arguably ledge is a violation of arizona law for the arizona employment protection act claim but it relates soley to his personal dispute about her and her allegedly being impaired and being unsafe is a nurse do we have the actual ab on complaint or only the e mail about it or the e mails about it i don't know if mr carden put that in part of his record or not i don't believe he did i believe  all we have is just the e mail discussion about the complaint so you're just representing to us that it doesn't include anything about the supervisors that's correct i don't believe mr pardon i'm sure will correct me if i'm wrong but it doesn't refer to anything about the supervisors there is the one e mail that takes place i believe in october where ms liddy comes in and makes a report to the supervisor about the board complaint and she's the one that says he's trying to drag management into all of this as unable or some words to that effect she's very upset obviously by what her coworker has done and she's reporting that to her supervisor and she wants to speak to human resources about that and they're just helping her to do that if she wants to do that at some point all they're doing i have something from you from your i think it's in the short time that i have left and like to respond to a couple of points mr down made number one in the summary judgment context where a low bar is generally required to prove pretax all i am supposed to do is to suggest to this court that either a discriminatory motive more likely than not resulted in the terminations or that the proffered explanations are unworthy of credence when this court has repeatedly written that retaliate to retaliate hers don't often advertise their reasons for retaliating they've learned the system they learned if you wait a little while you can you can disguise your italian tory motive and the court has said frequently the proximity is not enough by itself but in this case where we have challenged the accuracy and the veracity of both of the reasons given the grid duction in force making no logical sense there being no documentation of that reduction in force miss harden i asked her is there any documentation that you know of for the reason for the reduction in force and she says no that's our first work out of her mouth and then she says we were told not to keep the records of that decision in the files so the recommendation was made in february and it wasn't acted upon until may for my sense of pretextual i find it intriguing your honor that from september to may is nine months this court has said three date months is the inferential time where we can look at temporal proximity if the decisions made in february hey we're spending too much money on nurses why wait ninety more days to fire mr wood well that's another reason why their explanation is and where it wasn't as he that was fired this involved four or five other treated exactly the same recommendation made february much of what you complained about happened between february and may including the infiltration situation i don't see that scholarly in correct your hon that and if you heard from mr diallo he said mr wood wasn't the only employee in this department that was terminated the others came from other departments where mr wood didn't work i sat at my time is up