six six seven chris dana versus hunter building and we'll hear from hans not heard or ruled on in that was just carried with trial this case had a fully developed motion for summary judgment phase that was considered by judge lee rosenthal she ruled on the motion a twelve page opinion in denied the motion with regard to both claims six weeks later we found ourselves in front of judge hitler and picking a jury in this case and of course is the court knows a judgment as a matter of law should only be granted if the evidence is if the facts and prince's points so strongly in overwhelmingly in movements favor that reasonable jurors could not reach a can contrary conclusion in this case there was significant evidence in favor of the plaintive the non movement would have prohibited summary judgment other than the proximity in time walk us through what you think's the best evidence to show retaliation certainly your honor that in all start if i may with the car's factors the continental coffee that's kind of the easiest way to walk through it and that is not an exhaustive list but i'll start there first of all knowledge of claim by the decision maker the only person who is presented by hunter buildings to testify was the decision maker kevin edmunds he is the person who made all of the decisions with regard to this case from changing the position that mr christie was working in giving him new assignments assessing all of the disciplinary action that happened to me that want to drive him around everywhere that's correct he is the person who picked him up in the morning and drove him home at night in shep shepherded him to his doctor's appointments the expression of a negative attitude toward the injury this is a matter of this is a decision based on credibility that only the jury to decide mr christine states that during those trips mr edmunds expressed a negative attitude toward the injury another witness indicated that when mr edmunds was speaking with her and she asked that mr kristine be allowed to go see a different doctor that mr edmunds told her essentially butt out or i'm going to bring legal action against you there are multiple pieces in the record multiple pieces of testimony which mr edmunds of course denies that indicate a negative attitude next is the failure to adhere to the company's established practices hunter has a five step disciplinary process process progressive disciplinary process that was not followed in this case but they don't have to if they don't of course they have the catch all that says that in a certain circles to as we can deviate from this plan to the extent necessary including going straight to term nation why isn't like yelling at your boss and just get in this like massive five your boss something that you would get fired on it certainly and that happened i can see that that would be something to be fired over him however that is mr christie i am denied that that happened second to the extent that he even got frustrated with his boss and he said that he did not yell but he did express frustration that was after he'd been told that he was being terminated and which also doesn't make it ok to those who you are easily in other words if you believe admins that he was out of control and fireable but if you believe is it do you believe chris time then he was fired and then expressed like why am i being part of frustration but he'd already been fired and he says he didn't shout he just was upset it's cracked on ok again star you're a bit hard to watch it's a credibility issue that's correct i'm moving down to the discriminant discriminatory treatment of the injured worker as compared to others this always feels a bit circular to me were claiming that the dismissal was a discriminatory or a retaliatory act and finally the evidence that the stated reason for discharge was false there isn't significant evidence with regard to this element or that i want to call it an element this point that the reasons that were given throughout this case mor sometimes to a greater degree sometimes to lesser in the beginning on february twentieth two thousand and fifteen determination document that was created in this case indicated a safety violation was a reason for termination later in his ego see statement a position statement mr edmunds double down on that and said that the statement correctly reflected those reasons at trial and in his affidavit in support of summary judgment mr edmunds law let me back up in the affidavit he wants of the bit at trial he explicitly stated that no the reasons for terminations are not in that document that alone is a shifting pretext or least a deviation from their own reasons given that could give rise to an inference that they were fabricating  also if we had mr edmunds discussed of the dangers of injuries to his own job that injuries could adversely affect the clients the number of clients that they could get it could adversely affect his own job in his reporting now initially he tried to say that none of this would affect him he was not responsible for safety whatever happened at the company happened in the worst thing he could do would be not show up for work that was literally his testimony later on he did admit however that these reportable accidents could adversely affect him he also stated that among the elements that create reportable accident are a modification of job duties and time off of work and of course medical treatment we have evidence in the record that indicates that he did everything he could to minimize the medical treatment and certainly to control the medical treatment that he asked mr stein not to miss work even the day after his accident he admits to that and finally he created a job for mr christie mind that he did not run through h r there's no documentation of this he admitted in the record that he did it without the involvement of age are and all of this has the illusion or the impression of brushing his under the rug to avoid a reportable accident all of the is the insistent the mis the insistence that mr christie be at work despite testimony that there was really nothing pressing for him to do none of these things make sense then you have just the the bizarre elements which as judge has you mentioned him driving mr christine to and from  work driving to and from the doctor's appointments showing up at his house on a sunday unannounced these all blend definitely would give rise to an inference that there's something more going on here than a legitimate terminations mr judge not give any reasons for like he would grant the motion later on he would give us an an opportunity to argue when we came back and defense counsel renewed the motion at the end of the trial the judge said ok you've made your record move on to punitive damages and then seemed to  i frankly was caught off guard we moved on to other matters and i came back and said your honor can we have a reason so that we might be able to correct the mistake this is a paraphrase and he asked do you agree that that texas law controls and of course i did i mean he z he didn't mention it and nothing more was mentioned that's where my mind went immediately muted say that but even again into the sars case we have those elements and additional elements to support that in addition to the continental coffee elements we have statistical evidence we have evidence that ten of thirteen employees claiming injury at hunter buildings were terminated within five months of claiming injury and the question that we asked was provide the names of all employees who had claimed injury between two thousand and twelve and two thousand and fifteen we got that information we asked for their dates of higher dates determination if political and what that reflected again is that thirty ten of the thirteen employees did not make it past five months and we also of he handled all of the worker's comp claims and so to that degree just as i was he was in charge of the fire and i don't know that i do know that using his or her sign is an example he did not work under edmunds when he was injured he was brought under into mr edmunds little to purse and department and the determination to fire was then made by admin straight from there so where does the thirteen people come from there in the same department who were wearing the same fist i'm sorry no place there in the same facility was so hunter  number of different facilities and these are all in the  and finally is as the temporal proximity again alone is not enough but we have significant temp temporal proximity in that he was terminated i believe eleven days after the claim was filed fifteen days after the injury itself all of these elements together at the very very least give rise to but allow this to go to a jury and they do not so persuasively weigh in favor of defendant that they would support a judgment as a matter of law and frankly it's a little bit difficult to argue because i feel as though i'm giving a closing argument presenting all of the the evidence in support of the claim that we have but the bottom line is that just you're saying if you read gone to the jury in a jury trial in your favor they would have been able to set that aside from insufficient evidence i absolutely do not believe they would have and again we have not only the continental coffee factors of the sars factors but we have statistical evidence which we seldom have and we have the temporal proximity every every analysis weighs in favor of there being inferences to support the plaintiff's claim in this regard so they grant it again the ip i mentioned in the brief that we would have put that we requested and we're entitled to the opportunity to present additional evidence that actually may be a misstatement i think if judge hitler had provided us with the elements that he felt we had improper we had not sufficiently supported that i would have actually been able to to direct him to evidence that was already in the record at that time i don't believe there was additional evidence that was necessary maybe fixed it before we had to go through this whole thing that's correct your honor and so essentially our argument is that the judgment as a matter of law was improperly granted that there certainly was sufficient evidence for a reasonable jury to find in favor of the pla and it's it's that decision that we twelve entries of employees one is actually listed twice so there are actually eleven employees on the table and the plaintiff is also on there so of those employees three of them are still employed by the company three of them either quit or abandon their jobs and three of them were not terminated until at least at least two months after their injury so that really leaves two employees out of twelve in the last three years that were terrible and i just tell you that as a young lawyer i did all the worker's comp in texas and i have never seen an employer act like this i mean i see as a pretty weird situations with employers but to be picky coming on a sunday and picking him up and  say this is a really weird and that support because of course edwards is going to deny him violating a law that would be a subject his company to civil liability so that's nothing amazing the question is is that true and one thing you look at is this guy acted so strangely so out of me no one like they were best birds and he's trying to help them out even though the guy basically and all of a sudden he's all over him because he's injured why isn't that that plus the tempora proximity plus his comments if we believe you know the evidence in the most favorable to the non movement anough or purchased it or break them up i will put the temporal proximity aside let's talk about this idea of the negative attitude i think that we have to look at it  two things in mind one is that the employee subjective belief that this is somehow an negative thing is not really meant to a negative attitude negative attitude is you mark the injury you urge them not to file a report you increase the working conditions that stuff i mean he did he follow the workers and he's probably increasingly tried to you know you moved him into this position a didn't even exist he tried to keep him from he didn't want to take the day aki tried to keep him for medical treatments he was really trying to control this guy so what he was trying to do was maybe not prevent any knowledge of the injury but really trying to minimize injury when he didn't succeed in that he found why isn't that a fair construction of the evidence and a jury could reach go the other way absolutely but why couldn't they go that way because everything that he did was it was kind of consistent with the worker's comp law of the worker's comp law says that one of the policies is to bring workers back as soon as possible sure he encouraged them to come back to work the following day but then when he didn't when mr christan didn't want to he said ok come back on monday you know he did the new job which there is no case that says that you have to run a job through h or anything like that he built a flow mother to a job that he thought at that was he's be put in a position that he's sort of being set up to fail and so again i completely understand a jury could believe mistreatments find very credible find chris stein to be a liar all of that but that's what juries do day in and day out and i'm just mystified why a judge is already going thrust really of this is the real reason why i got fired i think it makes sense for the judge to say that is what the point of really believes that the players actually evidence are actually evidence that has to go to the jury got it right that could never just be dismissed because it's clearly a credibility issue and so what does the jury believe and i'm actually not sure what box this argument fits in but what does it what did the jury believe the jury ruled in our favor on the age claim which means that they believe mr edmunds story more than they believe not heard i heard judge just say ah there's enough evidence here just you know to sing tell us i've said it and sent it in the jury says you know finds no defense that happens every day so again i'm not saying that as a matter of law you but let's talk about this other argument about the shifting reasons ok if you look at the ios east and look at the affidavit in support of the most for summary judgment they are not exactly alike but they are substantially similar they all talk about not not not cooperating with the state investigation they talk about him being in the break room they talk about him being hostile and abusive when he tried to when he tried to to to talk about safety at the end and so you know they really they all cover reasons that are legitimate i think and the fact that he was under the the pressure of cross examination having to choose one or the other i think when with the case law that says the case law that says that  employer's reasons don't have to be perfectly articulated it doesn't mean if you're a little bit sloppy doesn't mean that that's automatically means you're liable for discrimination in the case law even though the i'm the burden shifting and i was just on the play after trial but the idea that you have to have some evidence that it's false and that the real reason was discrimination i think does inform the analysis of these allegedly shifting reasons and they say this the reasons that shift to has to shift toward something that indicates an intent to discriminate just we've got to put them together now and so if it were five years later and it gave a different reason then maybe say ok that that doesn't by itself matter but when you couple that with the weirdness and the tempora proximity in the negative attitude and the moving his job and the all of those other issues the other employees we put all of that together isn't that enough at least to get past the you know to scintilla as or whatever you want to said candy i guess what i mean is it doesn't rise to the level just doesn't even if you take it as truth you apply that analysis that the cases require us to apply and you say wow he thought it was we were the admins came to pick him up and take him but no case says that's wrong and really that's just a subjective belief what's your best case for this type of evidence this type of dispute not being enough to send a circumstantial evidence case to the jury not being enough right that's what y proposition and then the green case green versus law is one ninety nine southwest thirty five fourteen not in the brief apologize stands for two things one is that when you talk about temple proximity it's weeks as opposed to months or years that matters and the second thing it stands for is the idea that one of the things that this is weeks less than two weeks i'm i'm so yes yes i what i meant was putting aside because this because the temp  proximity standing alone is not enough i was really using that to apply to the statistical evidence and weeding out the statistical evidence down to two people instead of instead of whatever the numbers of the players are doing but the other  actually say proximity may establish a causal connection when they are separated by weeks as opposed to months yes so then that would suggest that that by itself may be enough and certainly is a big number which you just need a little  i think we've probably talked about that if i could do just a real fifty motion certainly the record reflects that the district judge didn't allow for any gauge that a lot on the on the elements and the discussion the evidence was there and had had two opportunities to cross examine mr evans and can't conceive of what evidence would have been put in that wasn't already in the record perhaps the just a testable evidence that th e council refers to might be part of it but that evidence if that evidence goes into the record that we have argument about that and in our position is that that doesn't prove anything and so what could what could have been done what would have been done to allow to open the records to allow something to be different yes our position is well it wasn't perfectly done by the district court what did happen was both parties were aware of the elements both parties were aware of the arguments  was fully heard on the matter i had all the opportunity to put forward his case and that the mere fact of it but if i know what my case is about and the judge comes out some different way how my supposed to know what the judges think it mean that's the reason why judges give reasons i know what i think that and i was agree when i was a lawyer the judge you know was agree with what i thought so i needed to be informed of what the judge thought and here she's mystified frankly some i as to what the judge was thinking so it would be nice to know  was not your fault but you know i got i guess i can understand that you are except to say that perhaps the argument is that where's the harm what could she have done without the record is fully developed from their perspective and there's nothing that they're claiming they didn't get into the record and so that's our kind of position on the you know we recognize that the that the court did not do the best job of laying out its reasons i guess i want to address quickly i don't know whether the court is interested or that the two factors that we discuss i can briefly address and one is this idea of fair follow policies this progressive discipline policy is not mandatory it provides for the application of the discretion that says a progressive disciplines not a right there's no evidence at all that that factors met the part about other similarly situated employees being discriminated against there is no evidence at all of it any other employee who you know was a injured and b any other employee does so there's no comparative evidence put in the case at all so those two factors in our view are not met all the issues here are factor i mean you've got your temper approximately which we have to deal with and then we have the other two factors which i think are the negative attitude and the you know the evidence that the reason this falls and you for those reasons are if you go over knowledge of claim by the decision maker we can see that that's another one of those that the courts have said  start with the using the scaffolding without having without being trying to do so in having failed to perform a job safety and analysis we asked for any information regarding other people who had been disciplined or terminated in those  not we did not receive any information we assume that there was no one with regard to someone going simply just going crazy on mr evans i don't know what else to call it just losing his temper to the degree that's described  certainly i can imagine that that would be a rare occurrence and i would understand that there was if there was no one else however that was not even addressed in the request either and remember that that was a reason for tom nation that only came subsequent was it an absolute requirement that you show that someone else who is fired or not fired having done the same thing but wasn't injured i mean isn't that just one aspect of proving any kind of discrimination retaliation this whole area it is defendants focus so with such laser focused message focused laser focus on the comparatives that we always ask for that as an element the absence of compared or as of course does not defeat a claim and it is only one way of showing discrimination what about his argument that you didn't show you know you have these statistics about all these people being fired within a certain amount of time of their injury but you didn't show us anything about that how do you respond to that and first of all i would like to thank mr conan but for correcting me one person is listed twice so including plan of their twelve but we asked for again the people who had been who had reported injury between the two thousand and twelve and two thousand and fifteen we got that information we got the information with regard to determination in in our estimation that told the story if there was more to that story that was certainly within the defendant's rights to present at trial or elsewhere in response to summary judgment or through discovery responses we got no information on that and as a result we certainly didn't go looking for it we didn't know that there was any more to that story as so if there was a failure of that information we would submit that was on defendants if it would have been good for them with regard to why the judge at a civil case the absence of it is not inconceivable that the jury after having heard an entire trial in which we opened and discussed throughout the the presentation of evidence about workers comp retaliation and how these two occurred simultaneously how all of the trouble at work started after a worker's comp discrimination claim and then the jury is presented with a jury charge that mentions only age discrimination might think wait a minute we think that either concurrently or alone it was some other triggering factor now both of them you have to prove that they were determining factors in the cane coincide but it's not inconceivable that they would find against on the age discrimination claim in foreign workers compensation more importantly even informally we did not get to speak with the jury so we have no idea what they were thinking when they were back there but the bottom line is that in this case there was sufficient evidence presented to the jury at the very least to defeat judgment as a matter of law into law this case to be presented to the jury thank you i think we should all be arguments and this