in play is the court good morning jeff lyon for plaintiff in appellant sorenson good morning so the essential issue in the case is whether or not there's a question of fact as to a cause of connection between mr sorenson's repeated thousand and eight and two thousand and eleven in those four reviews he received an average of three point six five out of four on his review is then in september two thousand and twelve after his november two thousand and eleven complaint to the washington c office he then got a two out of four so that is it's meeting expectations but it's you know a third lower than anything he had got their review in between the september two thousand and twelve review after november two thousand and eleven before the september two thousand and twelve review yeah he was evaluated in i believe it was december of two thousand and eleven and i think the reviews are pretty much usually given in december and not positive and that one was like a three point seven but that's that's a review given by the local office and his complaint was in november of that year to the washington d c office so it's not clear that the local office heard about the washington d c complaint and he had complained earlier in about  lawyer comes in describes the policy and then he openly questions the policy as to whether or not isn't this are you disciplining employees for taking f m l a so can i ask a question you're briefs all talk about the policy the policy as written seems entire it clearly says that these are not to be considered when you're using policy or using shorthand for the practice that the company wasn't actually following the written policy and they were not allowing flag it to the computer automatically issuing a current when they employ sat for three or more or one or more days and the answer was yes and i said well does the computer flag it if it's also answered as an f a day or does it prevent you from issuing occurrence for n f m l a day and the answer was no so the computer was set up so that it would actually just automatically charge an occurrence for the absence and then and so people were getting those occurrences and then we cited two and no one was going back through manually like if the employee came in and said hey that you know i think you've wrongly me down for an occurrence here was that changed if it was brought up verbally and fifteen one of the employees complained i think was patricia dial complained to mr sorenson that she had f m l a day as it had been granted but then they were changed to you something and the district court plane that too numerous positive reviews that were given to him after he started complaining about the policy and concluded that the positive reviews tak together with the fact that he wasn't terminated for another year do not support the inference in other words that the cause of connection is argument is weakened by the fact that there were repeated positive reviews interim how do you respond to that ok well one of the one of the positive reviews was twenty eleven so that's like within a month of when he complains to washington and after the locals have ignored him so i think they're they may not have had time to digest the complain but one of the other reviews the jet the district court pointed to was a september two thousand and twelve evaluation where is his average went down from three point six five over the preceding four years to a to the court pointed to  the twenty twelve review where he met or exceeded goals overall the list of positive feedback enthusiastic about keeping his team well informed exhibits good listening skills that decayed moving teams so overall a positive you know your honor because what matters is the overall number in the very next numbers one out of four and that's in september twenty third team and if you read his actual match rex what his team was actually performing there like in the ninety seventh percentile his scoring and the and the actual performance of his team there like three out of four across the board and he still gets a one this completely unsupported will but the wasn't that when after he'd had the that is that retaliation what they thought they did they didn't seem to be giving him the review because he'd raise the issue you know rightly or wrongly we weren't there obviously but they seem to say look you were disrespectful in how you raise that and i mean there's an inference there that you stand up in an open meeting like that and go after an attorney who really probably isn't familiar with the facts that maybe that's not the right way to approach it and so it doesn't seem unreasonable for me that that he would get a negative review to say look you exercised poor judgment in how you how you raise this issue well i mean the purpose of his job is to do conduct consume you know run this phone bank for customer service for amtrak his job is not to attend a meeting and just absorbed whatever they whatever the ad track attorney says and that was a one a single event that lasted what fifteen minutes or so out of the entire year of performance all his metrics as his actual performance are extremely high i think they were among the highest in the office yes and he's given a one out of four and then if i can just jump over there is there is the question about why didn't he get other good reviews so the twenty fourteen review was was was provided for the first time after so about six rounds of briefing on the motion for summary judgment was not produced in discovery had no bates number on it when everyone knew that the key issue in the case is is this retaliation for a complaint or is a chain of causation broken by a good review in the interim and lo and behold there's this suddenly a review that's unsigned by the plaintiff or his suit by anyone when all the are signed by both of them so you're saying we should consider the twenty fourteen you should consider it as false pretext as as diverse as it wasn't signed and it wasn't produced and it wasn't produced in discovery you say that review very year he's placed on the second performance improvement plan in twenty years and he had received a final warning in september he's put on a performance improvement plan in november and then at december he gets an evaluation that's positive and mentions nothing about a final warning or due to performance improvement plans to know because you didn't raise this argument to your report reply brief up here and i understand you didn't have an opportunity in the district court to respond to that but why didn't you i mean extent that this is a good argument why didn't you raised in your opening brief and is a waived if you didn't well i think it's waived because it's the defense that introduced the  document but you knew it was in the record below i mean that i that's why i have hard time with your argument is you you're trying to claim that well this doesn't exist i mean are you your client denying that he got the review and that oh that was given to him at the time that it said it was  it didn't come up during the litigation so i really don't know if it came up before the district court no because because we had had a back and forth briefing and a hearing on the motion for summary judgment the judge said he wanted more briefing so then we submitted a follow up briefing and then in the reply of the follow up briefing law and this is the first time ever i understand why you didn't address it below i understand that although you could have submitted as a reply but the question is why did you then address it while it was up on appeal but i'm not sure that it's dispositive so i don't want to make more of this than it needs to be but but i don't understand why you didn't bring it up in your opening brief you know i might have ben full by thinking that this is a legitimate documented still legitimate and we didn't think to question it and tell the reply brief came up and you saw what they said in opposition that's all i can conclude i don't remember wh whether his determination could be made that there was no genuine issue of material fact he he mentioned that some sorenson's testimony was self serving it was some corroborated it was unsupported and i thought well so while we've got case law that says man swears to something that's evidence and whether it's persuasive evidence or not it's up to the jury if there is a genuine issue of material fact what i want you to do now is give me a list of things that had a bearing on the result so their material average you've got to tell me where the judge resolves an issue of fact where he shouldn't have the should of left it to the jury like we're sorry instances one thing and the real world witnesses say the other thing and he says well i believe the witnesses because sorenson's testimony is self serving and uncorroborated that sort of thing ok so just on the pretext arguments the reasons for the terminations and the judge determined that sorenson was not credible and in his testimony that he had been doing the right share same ride share data entry with employees knowing about it since two thousand and eight suddenly that was unacceptable in late twenty fifteen was there evidence something that the company knew about that in two thousand  mr sorenson was improperly using the scanner because he allowed subordinate employee to use it guess it scans tickets and then mr sorenson testified that the scanner has a generic username and password labeled on each scanner so everyone can use them and the judge just didn't feel like i guess that was credible where they say we don't know care about what he felt  i think he said that that mr sorenson improperly allowed subordinates to use the scanner and sorensen had said what sergeant did allow other employees to use the scanner because that was the practice and the username and password for using the scanners printed on the scanner so there's no there's no restriction on using the scanner and i don't believe there was any document saying that ok next all right then and i had read a crozier also terminated him for going into the system and approving a place for time off  manually and and the judge has said that mr sergeant self serving testimony that he had been authorized by crozier herself to do that a couple years earlier was not credible but we attached an sorenson says i was told it was ok to approve the time like this crozier says it wasn't and you're fired right ok and then of course the court's seems to be its main point was that and there's no temporal or cause or connection between his complaints and the terminations but sorenson and testified that his complaints you know he had been threatened or charged occurrences for f m l a time and then he was terminated two and a half months after that so the judge thought that was not credible the court but was not credible that mr sorensen was we've taken you over time to finish your question sometimes i left the district court's findings of adverse credibility well yes and that would include this twenty fourteen evaluation that the district court felt broke the chain of causation or contributed to it and there's no good morning r michael gregg your honour's michael greg for pelleas amtrak national passenger rail one corporation and reader crozier i think you forgive me the opportunity to address you today i want to start by just saying that material disagreements on facts and why not try the case but can't pry the case on three judgment so you are no i'll briefly address that so like you can't say well i don't believe sorenson because he's not corroborated and by other things on some of his claims and because they're so was testimony is self serving those are reasons that a jury might choose not to believe sorenson but it doesn't matter it's summary judgment that's my big problem with your case your so let me respond to that your honor so sorenson has the burden of establishing the element of causation and the district court found that he did not establish causation because of the underlying after considering the totality of the circumstances the district court considered the fact that after mr sorenson made complaints about or express his views that the antrax attendance policy was unlawful he received four positive reviews even going through the end of twenty fourteen in addition to the fact that he received positive reviews the district court found that including plaintiff's own testimony there wasn't a causal connection between his complaints and any adverse action in fact but i'm on that score counsel the temper approximately as a way of so i think you haven't really established causal connection but here you've got somebody who's worked for the company for what was it about two decades without issue and i correct in looking at the record that he's been with the company for two decades without really any issues i your honor for purposes of his term a nation we didn't his first ten years because he was in a completely different position functional role there were some warnings in the light for this company i think eighteen twenty years something like that without any issues twenty eleven he starts to complain and then from there all the way up to his terminations date there were some positive indications are as there ha been in decades past but then the negative reviews started happening so there's a pattern here the district court in its temper approximately and the alice is seems to me to haven't really clearly identifie discuss that pattern of negative action and how that ties in to his proof of the causal connection can you trust that yes you are i think that the court addressed that  complaints the first one was to a supervisor where he opined that they should look at whether or not the attendance policy was unlawful and after that he received a positive review that same year the incidents where where mr wright went but that's my concern right when you have this pattern right to vittie it's a mixed record he got some positive reviews but he also fairly shortly after he first started complaining got some negative reviews so the district court looked at the positive reviews as breaking the causal chain but didn't really address the negative reviews so i should the fact that the negative review started happening shortly after he started complaining is not relevant to analyzing the causal connection it is and i think the district court did address those new order i think the ending that you don't have to show we don't have to conclude that the negative reviews were because he wouldn't shut up about the illegality claimed the only question before us or the district judge is whether a jury could decide that the negative reviews were because he wouldn't shut up about the claim correct your honor so the mere fact that someone complains about something in the workplace doesn't absolve them of any liability for further action so if i complain about something illegal in my workplace i  can't then for example start yelling or cursing at someone so and there's case law saying that the fact that one complains about a particular issue doesn't mean that an employer then can then must ignore everything that the employee does and so in all the instances that we're looking at the discipline for example over riding through a back channel the electronic timekeeping system to approve vacation for employees without authorization that's a specific thing it's a specific act was it alternately why it was terminated right exactly that was then you got issue that looked like a serious reason to fire somebody if he's saying somebodies leave was ok when it wasn't right as i recall he says that even though the written policy said you can't do that crozier told them orally that he could and appellant said that he was authorized to enter the electronic system the workforce management system and amtrak has certain thresholds  staffing they want to make sure that they don't go below a certain threshold so that they have customer service representatives that are available to field calls and the like and if it goes below through a certain threshold they may not have employees and cause obviously disruption in the like so this is a policy that everyone knows the declaration that we submitted of george vogel who is the administer administrator of that system shows that they did an investigation because they didn't know how these thresholds were bypassed he shows that it was through a specific backdoor application that ultimately they had to do some form of forensic investigation to find out that it was in fact mr told him that was ok he said crozier told him but your honor if you look at the shifting explanations mr sorenson said that he was given access to a shared drive and that shared drive gave him authorization to do what he did override the thresholds the shared drive is simply a gunderson my question i'm not asking you wasn't sorenson right i'm asking you wasn't there enough here so a jury should decide whether sorenson's just making the stuff up all the justifications are fake or whether the judge can decide no your honor because i think the court's order specifically can't the for i'm not allowed to differ understood you are let me say to you in the record the specific evidence that shows that this is not an issue of fact of vacation below establish thresholds and he claims that he received an e mail from rita crozier giving him this authority and when you look at the actual email  where one is his testimony was that she would sign the log book when this was before when he first started in the department and twenty fourteen this override occurred in in in two thousand and fifteen like over a year later so when he itself giving him permission to access the shared drive but the log book itself says no such thing the e mail that he sends that he says is proof that he had authority to override  electronic workforce management system but if you look closely at that e mail there is no such thing so all the evidence that particular his oral testimony that that would have provided him the authorization to override but there were other instances as well that the district like discussed where he had a version that didn't appear corroborated and it appeared that  in favor of the company instead of citing it go to the jury for the jury to determine his credibility so your honor so let me just if i could briefly respond to that so in order to show retaliation he first has to show causation if the the elements of a prime if a she claim for retaliation if sorenson first establishes a prime official claim then the burden shifts to amtrak to show that its actions employer it's pretax it's pretext for discrimination it wasn't the real reason in the case law says that disapproving or saying or mis or characterizing or disagreeing with the company's position or saying that didn't happen that is not sufficient to overcome pretax and i can see in their community about some testimony that i have trouble understanding it because all the internal amtrak jargon and stuff so i may completely upgraded my you got the f m account to include the privilege and then again in late august early september she instructed both peggy and i to engage in that activity and i think but i'm not sure that he's talking about the activity that we're talking about  what you call the back door that stuff at and in august of two thousand and fifteen she did what she instructed peggy and i did take waitlist requests as what they're called and approved additional vacation time for  instructed to do at authority to enter workforce management to override and i think enter workforce management is the back door you're talking about to override vacation thresholds on your own that isn't what i did so what they did do i approve waitlists requests for employees in the customer service the park and you did it by signing on to work face management right that's the back door correct and you approved vacation days even though they exceeded the threshold and title men and he says as i was instructed why isn't that enough to set up a genuine issue of fact on whether he did or did not have authority to do what he did on the vacation days you because the amtrak has a specific as we submitted in our in before the district court there are only about fifteen individuals in in the company and they're all in the timekeeping department that have the author forty to enter the system through a computer and approved vacation below the certain threshold such this may be all wrong i mean it may be that impractical heartily and scrawly and properly disapproves of this sort of thing but if his boss tells him it's ok and it seems like that would still enable him to say i didn't know i was doing anything wrong because often the office practice differs from what the book says you are and if you if you look at the declarations peggy beveridge diane pitts reader crozier supervisors have authority to make to submit to make a request to the timekeeping department that the thresholds be reconsidered in a particular circumstances and then management has a discussion and they determine whether or not on a particular day the ok so they're all saying no no no we follow the book well from what rac washington but he's saying they told me to do some that it's not by the book but that's the office practice that they approve but the e mail the e mail that he points to that says he has that authority is an e mail from reader crozier at which he says they talked to him they said words the e mail the e mail looks like failed corroboration but the words that's still evidence under rule fifty six right when and there's a what he's referencing your honor is approving supervisors can make a request to prove vacation below the threshold but entering the system entering amtrak's electronic system through a backdoor application that no one really has only a minister administrator donna has access to amtrak booklet stipulate that he shouldn't have done it if he'd been following the book of regulations from washington but the point is so once one's at the pretext stage and there's case law that's that swirly on this that says if the pretext stage disagreeing with the employer's position or reasoning is not adequate to overcome pretext you have to then present evidence that no the the this isn't just a disagreement case case he didn't just disagree he kept talking and basically they kept telling him or s shop right but in response to his in other words at the applicable standard the employer amtrak comes forward with a legitimate nondiscriminatory reason for its actions and b base its actions are legitimate nondiscriminatory then the plaintiffs has to come forward and i think what such kleinfeld is saying is that he came forward with his own under oath testimony and whether that creates a trial issue i think that's  is well established that district court need not find a genuine issue of fact if it's based on uncorroborated self serving testimony for example your honor if i we caught your eye if i say to a if i work at a bank and i say that i have authority to wire going to someone's a customer's accounts and withdraw money my statement in of itself is not it's not it can be rejected by a court because it's self serving on corroborated evidence and to overcome pretext you have to come come forward with substantial and specific and direct evidence so right here over time thank you very much for your argument and i think your overtime as well but we've taken counsel well over time so let me put a minute on the clock and give you the last work here a thousand and two which is an e mail of april twenty one twenty fifteen mr sorenson is confronted with an issue or another employee has given a  sorenson was sent to peggy beverage one of the other managers and copied to read a crozier cerate a crozier didn't come back and say hey what are you talking about you can't authorize you know any any personal time off so you know that would be evidence that he did have the authority to do any copies as boss on it and that's in just a few months before his terminated and then briefly he did testify regarding this issue of when was this twenty fourteen evaluation when did it come to existence mr sorenson testified that in the summer of two thousand and fifteen he complained to crozier that the only the only performance evaluation in his online employee profile that other managers look to did that side whether or not someone gets a promotion was what was it was the two thousand and thirteen evaluation where he was given a one out of four so the twenty fourteen evaluation was not in his online profile in twenty fifth as of twenty fifteen doesn't arise until the reply reply in the supplemental briefing