there are five minutes for rebuttal please i'm may it please the court my name is doug janney i'm here on behalf of the appellant polish off this is a retaliatory discharge from employment case brought under title seven the rehabilitation act in the family medical leave act michelle was a long time employee of the state of tennessee worked there since one thousand nine hundred nine initially in a career service position and then she was promoted to an executive service  position about six years before she was discharged and the issues in this case are whether she was demoted in retaliation for complaining about race and gender discrimination and discharged for complaining about race and gender discrimination and or for requesting reasonable accommodation in the form of medical leave and or for exercising f m l a leave it's undisputed that she engaged in legally protected activities when she reported race and gender discrimination in a july sixteenth two thousand and ten memorandum to the human rights division and to me to the human resources division and to the civil rights division so undisputed that she suffered the adverse employment actions of number one a demotion with a significant loss in pay and number two a discharge the issue that the apple erases is causation and as the court is aware where there is very close temporal proximity between a protected activity and an adverse action combined with additional evidence that's sufficient to establish a problem a face a case of retaliate retaliation under all three statutes that was done here there's there's close temporal proximity under the law this circuit and at the time shortly after michelle had reported not only her concerns in the department about race and gender discrimination but attached written statements from two african american female employees saying that another employee in the department was using racially derogatory remarks towards them and saying inappropriate things and subjecting them to a hostile work environment she reported these things and then her supervisor when she pressed she said in accordance with the dots policy i want to i response to my complaint and let's divide this into three different areas if we might talk about the demotion then the terminations and then whether c was somehow inoculated from being terminated because she was an f m under nasser you can say that her complaints back in june were the but for cause of her termination when both the extra nl and the internal audit show she had to have been the worst manager in the state of whatever state this is in connection with that intermodal job i say that there was complete and utter mismanagement of her department is is without that is without justification or whatever word you just used that's astounding it's unworthy of credence because if that were the case if she had engaged in this grave misconduct in which they said that she engaged only after she filed a lawsuit two years later why didn't they say anything to her about it at the time that it occurred give her a chance to respond to these allegations just like they did for every other manager who was accused of of violating or having bad audits and things like that it just defies common sense that she that these brave violations of the law and these these great this great misconduct performs proms what happened and the number one they don't tell it when it happens number two the separation the tennessee department of labor separation notice says subject apparently perjury you have to state the reason for the discharge and they didn't do it i don't see anywhere where she actually disputes the results of the internal or the extra audit that i missed that some place yes she does dispute it because they never mentioned anything about it is it's made up you're changing the question you're saying she disputes that that was the cause of her terminations i get i understand your argument doesn't make any sense to me but i understand the argument i'm asking you does she dispute the accuracy of not what they did with it that she dispute the accuracy of the internal in the external audit results if she does she dismisses those are exaggerated she disputes the accuracy of those she disputes that she was responsible for them that that cheri carol another employee in the department would have responsibility for some of the things for which they blamed on ms shaw later on after she filed a lawsuit against him but the most important thing is that good faith bill does the good faith belief rule apply in this sense in this case no sir because if they're not contending they made a mistake that day on believe what happened is that they allege these things and they were required don't have to contend that there was a mistake and they believe that if the admit that there's a mistake the good faith rule says this is why we did it we did it in good faith doesn't really matter whether it's right or wrong so in other words if they did it because of the audit and i just don't see how anybody could say that this audit didn't provide a basis for discharge whether it was her fault or not if they did it because of the audit and if the good faith rule applies then seems to me that's the end of at least the demotion case so i don't want to take up any more time on this you've got my sense so what's the response our response is your honor is that reason is unworthy of credence and it appears that the court there's more than one way to prove pretext you don't just have to prove that the reasons are false you can prove that they did not actually motivate the discharge and all you have to do is present evidence from which had reasonable jury could conclude that those reasons did not actually motivate the discharge now how do we do that because number one they never said anything to her about it at any time before she filed a lawsuit never requires them to do two things your honor number one the tennessee department of labor separation notice which we block quoted in our brief cites that you state under penalty of perjury the reason for the discharge and they didn't utter one word that any reasonable person could understand as being grossly mis performance misfeasance violations the law these things they said number two the e o c the federal a federal government cases which say that that statutory provision that you just cited to us apply when there's a dismissal at will and the employer merely says i no longer want to keep you an explanation but it seems to me if you're dismissed it will you know they say we know longer need you i'm just wondering if that's a statement you know i don't know whether that's a formal requirement that they send something whether the whether the cases of performance and and second when the other was the other seats aren't you do that as an individual but if you know anything about h r h r tells their employers the people that work for them don't give reasons in connection with at will employees are you familiar that's the advice you get from h r that there's no evidence that that was the case i'm not saying that here you want to make this sweeping statement about if i if it was me this is what i would do i'm just suggesting to you as long as we're outside the record here that that is not what h r advises people to do i think it varies i would think telling the truth is the best thing and he specifically requested this employer state the reason for the discharge how do we get how do you get around that this is the problem we get when all of a sudden we're saying you know what you think or what i think when there's no support for what either of us are saying on the record so let's just sort of confine ourselves to the record ok at well a recent let's do that this reason is unworthy of credence because a reasonable jury can find that if he's if she in fact engage in these grave allegations of misconduct and poor performance that they would have stated it to her when it happened that they would have stated on the separation notice that and most importantly that they would have said it in response to the e e o c charge they said nothing of sort moreover they said the opposite they said the opposite when they demoted her they say they commended her for a job well done and that's in the minutes of the meeting commended her for a job well done quote unquote this happens the day after the first audit results came in why did she think that she has moved out of the one job and parked in the other job at that day because just like she complained on january twenty sixth two thousand she felt like she was being retaliated against for having complained about race and gender discrimination have a darn thing to do with it she didn't know anything about the audit they never told her anything about this audit gave her a chance to respond any of the allegations and it was nonexistent before two years before this lawsuit and it still isn't finished the audit is still going on i still there auditing her department and internal department while she's there and she didn't know anything about even an ongoing audit she didn't know about the audit she did know about the results of any audit they never told her about to ask you about the results you say she didn't know anything about it so now i'm asking you she didn't even know there was an audit ongoing she may have known that there was an audit just by being in the part i'm not sure if the record has evidence of that but i do know that she didn't know about the results of any audit was never told about any results and never given the opportunity to respond might be true you made some statements about not being able to read like other people who were being on they did and not  being made another statement now this you didn't present any evidence of that right your case did not depend on being treated differently from someone similarly situated right there was not specific and it said there is there was evidence michel testify that other managers when audits came in was given were given the opportunity to respond audits that's just the practice there when an audit comes in the manager came anybody do you know anybody similarly situated cherie carol would be the only person she named they got an opportunity to receive any evidence put into the record as whether she was similarly situated in other words same supervisor same results of the to do we know anything about the job carpenter was the supervisor about them and she took michelle's position when michele was demoted and they were in the same department and then what and then and then michelle was demoted and then ms carol took over and i think the main thing is here is this reason did it there is evidence there is substantial material evidence that this reason did not actually motivate the discharge i understand what you're saying but you're relying on the fact that they didn't there are certainly cases that say if you give a different reason at the time then that's evidence of under the right circumstances it can be evidence of pretext they understand you're relying on those cases but i'm trying to find out if you're also saying that she was treated differently from similarly situated we are saying that there is some evidence that based on the shah's testimony that other managers got an opportunity to respond and sharon carroll is one of them but by far and away by far our strongest argument this her court thought that you had to prove that the reason was false that's discharge ok so let me ask you question i understand what you say you have somebody the other thing that you're saying is that you are you saying that you d findings of the audit she said she'd disputed that they were after after the lawsuit was filed that there exaggerated that she wasn't responsible for them that joe carpenter was responsible for them he was the manager of the division that sherry carroll was responsible for some of these but let's just say we do dispute it but let's just say even if we didn't you can still prove prevailed and so you have a situation where there is an audit that finds forget about dishonesty or misconduct they did just fine mismanagement that things weren't nobody was watching the store and she's the manager so hypothetically why wouldn't they have removed her from that position why wouldn't have demoted or put her someplace else if she's not capable of managing the department if they had because they had other motives but instead of giving her a chance to respond to the audit findings to talk about them and explain give an explanation for why she allegedly didn't manage something properly they demoted her and in retaliation for her prior complaints and her complaints were shortly before the adverse actions now another important point is they  demoted her for that reason and then for three or three to four months she was performing an executive administrative assistant job and it's undisputed that her performance was satisfactory an acceptable in that job at all absent reports came in during that period right but the such reports didn't say anything that the initial refined final report didn't say the initial final report that they received on january seventh two thousand and eleven before she requested a sense to take action after three reports when you don't take it after one name right terminator three weeks after she get they get the x journal out of which confirms the internal audit now with a terminator for something for which they had already demoted her and dr pepper and car pay the she'd already been demoted another words you do a terrible job at least that's what the employer says in one job they park or in another job there while they're waiting the results of these two audits and then they can't terminator from that job because she's doing a good job and that job that's the that's the essence of your argument well to reasonable jury could find that they wish if she's performing acceptably and doing a good job in that exact administrative assistant job why did then there continue doing that job she was no longer even in the multi modal division no longer had any management responsibilities and they had already did the punishment had already been inflicted they had already demoted her and substantially we understand your position and your time is up but i'd like to ask about nicholson did they ever and do an investigation they did and they found and it's undisputed that his allegations were completely no not his allegations her allegations against him now they never invent they had a duty to investigate interest to provide a response and they never did either to address the f m l a and in particular if if you assume which which you don't but if you assume that a company is moving towards a position where discharge is appropriate we got one report but we wait but when we get three reports then the then the decision is made if you have that type of situation is it does the m l a preclude you from firing that person well they happen to be on extended  leave i'm sorry your honor does the f ok you're on f and the developments are moving towards a position where the company is going to fire somebody and they finally mature while the person is on f m l a leave do they have to wait and wait till the person  if there's reasons well i think you have to look at the job from which the person took i'm asking the simple question you don't have much time if it mature in the abstract situation that i described can you fire him while they're on  hand because you can say that there was so you can go through the kind of analysis we've been going through but i'm i'm just wondering whether there's if you lose on some of these other issues whether you can still win on your f m l a leave issue just because they happen to do it while they're on f m l a leave that's what i'm wondering whether that that's the case or not and if you have support you know our position on that is that there was and that they have no legitimate nondiscriminatory reason for firing her from a position from which i undisputed that she was performing acceptably in satisfactory the position from which she took the lead so it's not really any different from the arguments you're making with respect to the other claims which is that they didn't have a basis for firing her that that was not i was trying to she was trying to tease out whether you had a kind of an independent free standing claim based on the fact that you happen to be on f m l a leave when they fire yeah it was just a job the job restoration requirement that if employed takes  restore the same or equivalent job position upon their time to return if you had a reason to fire her to begin with independent of being on a film and i know you claim that that's another reason i get that but assuming that they had a right to even under your theory she goes on f l f m l a leave you say they can't fire in the meantime they have to they have to wait for her to come back and restore to that position can they fire her that day that she comes back assuming that that the reasons did then even if you are right that she had the right to return to the job before she got fired how can she prove any damages if if in that instance she would have been fired the day she came back anyway it's just a question of their motivation it was that the real actual motivation for the discharge i understand what you're saying there's you about damages you answer about motivation i'm sorry your honor i just i didn't understand there were much thank you thank you  may please the court my name is jay ballard i'm from the tennessee attorney general's office in nashville tennessee we represent the department of transportation in the saxon and of course we respectfully request that this court affirmed the decision of the district court which granted summary judgment in favor of the department and dismissed or denied partial summary judgment on behalf of the shaw the district court maybe you can help me the cases certainly say that you can prove pretext by showing that there are shifting reasons for the action you have a situation where the easiest thing in the world would have been to say you have to say misconduct mean mismanagement we have audits there's indications that the department isn't being run well they have opportunity after opportunity to just simply say that and you never hear this reason in till she brings the action that so why is that not enough and my second question is how on earth do you explain never doing an investigation about this guy where you have three people talking about his his conduct if she's following up to the civil rights division she tells them no this is a complaint and they just ignore so i goes in my two questions yes your honor with regard to shifting justifications your honor is obviously correct when preterit shifting justification can be pretext in this instance there was no shifting justification the original response that was given to the plaintiffs ms shabazz as to why she was being removed and i'm  for talking about terminations removal i just kind of i guess i'll just talk about the termination at this point the reason that she was being removed was because the executive service term had ended now it is certainly true that executive service it is at the whim of the executive and you stay in that position until the executive deems otherwise there is evidence on the record as ms lindvall the h r director states when you fire an executive service employee you use the language expiration of term that's the term of art that they use it's done for executive service employees across the board because there's no requirement as justice mckeag pointed out earlier there's no justice i'm sorry judge someone go the employer is not required to give a reason it in that will employment that was the case here so they didn't give a reason the audit had just come out on on nov third she was removed on november fourth  was fairly obvious why that was happening then when you move for work mode it on the yes you're on i've apologized again she was demoted on november fourth when she was ultimately terminated on march that he wasn't told why he was demoted they didn't they what did they tell of the testimony from her supervisor is that he said the department was in turmoil she'd given a good effort but that they needed to go a different direction and they were going to reorganize that's what she was told also if you look back at what happened prior to what i want to get to your good to your questions your honor i want to jump around with regard is shifting justification still the other responses that were given were consistent in saying essentially she was fired her term expires that's what they kept saying ok you're absolutely right that when you have an at will employee you don't have to give a reason but when you have an allegation of an improper purpose and then you are put to the test of of coming up with a proper purpose so it's one thing to say term expired when you're just firing her but when the ego thief says why was he fired then you're expected to tell the reason because they're saying there's an allegation that she was fired for an improper purpose now tell us why she was fired you don't respond expiration of contract at that point there you go if you're in the e e o c filing however there was documentation that they said the audit was the reason it's the last exhibit when you look at mr carpenter's deposition it's the last exhibit when you look at the wood a deposition where they mention that the its were reason for the term for the demotion i believe is the way it's put at that time so there is evidence in the record that that was their thinking and with regard to the other times they were not required to say anything and they they didn't they just simply said she was terminated as a matter of fact what the human or excuse me the believe it was a human rights director said is they don't want to mess up unemployment unnecessarily if it's a mismanagement issue they don't want to say that they were terminated for some horrific reason and they can't get unemployment that's what she said in her deposition with regarding regarding the investigation that was not conducted there in the testimony was that there had been two human resource investigations of that division ongoing prior there was an investigation of mr nicholson's complaints that was ongoing the individuals who ultimately complained and the others who complained about ms nicholson were interviewed during that process and it didn't come up it was they didn't say anything about mr nicholson at that time it was only some time afterwards that they made their complaints now perhaps those that investigation should have been conducted she was trying to say clearly that there was a complaint being made however that doesn't imply that there was retaliation it's a separate issue whether they messed up in failing to conduct it but as a comment to tell her little yes your honor and at that time what she was saying was she was asking for two things one the bernie nicholson report had just come out that was stating that mr nicholson clint mr nicholson's claims were not valid she wanted a copy of that she admits that's part of what she was asking for the other thing was she was saying where's this investigation the testimony of mr carpenter who she was making this request of was is that he thought an investigation was being in fact conducted so one can infer and i think reasonably infer when he says leave it alone he's saying it's being done i'm not i'm not giving you a copy of the report and the investigation is being conducted that you wanted his testimony was he thought that was happening now whether that was obviously that was in  but that's his testimony his belief and there's nothing in the record to suggest that that was not in fact what he thought was happening so the that would be why he would say leave it alone and frankly statement leave it alone is not leave it alone or else i'm going to get you i've had enough of this we're going to it's simply step step back a little bit but it wasn't anything there's nothing sinister in the fact that the audit came out the same day he removed her on november fourth from that position i think it's it's the record is fairly clear what the motivating factor was there the audit was significant as your honour's have pointed out  there were numerous problems that that she had engaged in what he is ok now he's removed or she's in a different position she no longer has these responsibilities he's doing a decent job he's a long t in the final internal audit came out that confirmed the reasons that were presented in november on november third then on she knew where is pardon me january twenty six the federal government came in the office of the inspector general and seized her computer that was in keeping with their investigation there was no indication that is going to happen mr carpenter didn't know michelle didn't know they just came in and took what they needed to take for their investigation they only took her computer so that it just happened then six business for me and that was only six business well with the doesn't matter she then on feb seventeenth of two thousand eleven the comptroller audit came out on the comptroller of course as an independent entity and goes through and it makes these examinations and had these findings that we've had that are that are in the record and there's there's really no dispute that the said the final audit came out twelve business days later she was term that's all it took her mr card there was no big delay no nothing there and what procedure was what happened in th is mr carpenter says that he spoke with the commissioner and the commissioner approve the termination and then she was notified and removed from that position and the f m l a of course does not grant additional rights as far as retaining your job if you are seated at your if you're at home and you could be fired for a reason you can still be fired if you're a city the interference if i understand correctly does change the birth i mean you no longer he starts off as an at will employee they can fire her for any reason but in a legal reason under the interference claim she's no longer not will employees she has a right to come back to that job  the burdens on you to show that you had that the that you effectively had a good reason for not letting her and i mean doesn't that change i gree your honor the burden may be changed in that instance however i think that the reasons are still significant enough that they warrant terminations and i think certainly the case law supports a she can be terminated while hell why do we go let let's look back again you have somebody that is performing in a higher job and the only thing that has been mismanagement not misconduct now she's demoted to a different job where she's no longer responsible for management she responds to him she's doing a fine job and that goes on  you fire her from that white why did she why is she not permitted to return to that job she was not permitted to return to that job your honor because of the weight of what had come for was coming  forward as i as we were discussing a little bit earlier you get an an independent audit from a third party saying this is every bit as bad if not worse than what was previously reported the federal government seizes her computer these are things that at some point because form a critical mass that we just they seize her computer but they do not find wrongdoing they find mismanagement yes your honor the testimony of mr carpenter who was the the one who recommended the termination essentially was that that was that had reached a critical mass mr jenny harrison is mr michel on her brief says things it was just time it was it was a flippant decision almost the way it's portrayed in in the brief for instance they quote my decision to let her service expire didn't need her services any longer just my decision but that's not the entire quote he goes on to say based on all the results that were coming back from the division that was under her control at that time during the time period they're investigating he also says he didn't feel like her services were need any longer especially with the ongoing investigations that he had had us t dot he had the f d a the state comptroller all of them already reporting significant findings not yet a fraud but of mismanagement and also noncompliance with congressional law and while she was in a different position there is an expectation i would submit to the court and state government if you have someone who has caused this much turmoil in a position that at some point is just time to let them go along was she in the demoted position she was in the demoted position your honor from november seventh i believe of two thousand ten until may be march eighth of two thousand and eleven when she was ready to leave on february twenty sixth yes your honor and she was also on leave and other times including january tenth through january fifteenth she the basically almost three months i think that's right your honor she was she left for the week of january so tenth right after the comptroller's report came out your own are it's it's unclear how much she knew about it in the record she had to know about it was going on of her division and it's i would also like to point out that it is not the policy of the state of tennessee that managers get an opportunity to review all the audits and then take action that's obviously audits are supposed to be instructive they do go to the department so that so that decisions can be made to resolve those issues and they did they went to mr carpenter and his decision was based on the audit she needs to be removed so they it was passed down to the extent that it needed to be but there's there's just no proof in the record that all managers get to get to deal with these these kinds of issues and i'm sorry i'm out of time shy continue your honor or if i answered no thank you thank you y minutes there's a point i needed to clarify your honour's and when judge white mentioned to mr ballard that once a plaintiff files an ego see charge then you are expected to state the real reason for the discharge mr ballard had mentioned  somewhere in the sea response that there that they did mention the audit with respect to the demotion but with respect to the discharge they never said anything about the audit or about any performance in fact what they said in this is  page id numbers nine thirty four and nine thirty five in the record this is what they responded to the o c she was not accused of any violation of any work rules policies or laws wishes to reiterate that ms shaw's employment due to the expiration of her term as an executive service employee she was not accused of any disciplinary fences she was not charged with any offense her point merely expired if ever there was a gym and she wasn't accused of anything right and nor all that language falls away because it's all true so the only thing that's arguably inconsistent is that she was fired because her terminations expired because her term expired right now the only part of that it's true but as far as having performance issues and i mean a reasonable you could infer that they didn't say anything about poor performance or mismanagement or i'm just asking whether it conflicts or whether it's just omits there's nothing in there that that's not true their dissent is not accused of any violation of any work rules policies or laws yeah i don't see how mismanagement means you violate the law or mismanagement would mean you violate work rules i mean there are rules in place that you have  to follow it's not dead on but from that from that evidence or surely they would have said poor performance or gross mismanagement they didn't say anything of the sort and from that and from  that evidence that creates a genuine issue of material fact about the legitimacy of this reason also as far as other managers getting to review audit findings there is a citation in our brief i was i couldn't find the pinpoint site but cammy davenport  respect or she equivalent to carpenter now she's a department head like light shot she reports to a commissioner she similarly situated she's a manager of a department because his answer is correct or incorrect was well it went to carpenter carpenter sure carpenter could respond but not so that's that is that the same or is that different than the person you're referring to i'm saying that ms woodell is like miss shah in that she managed a department and findings came to her commissioner about things that were going on in the civil rights department i'm not doing in investigations they're not doing investigations is in the record and she got an opportunity to respond to that findings so going back to judge white's question  earlier she asked you several different times are you making a claim of disparate treatment and every time you answered well this there's some evidence in the record of disparate treatment but you never ever answered and you're not answering right now did you actually make that claim so i'm not asking whether there is or isn't evidence that you can point to i'm asking is that the basis a basis of your claim here and is that in the complaint yes it is so you've made a disparate treatment  your you what i in the complaint ok if let me make sure i understand the question absolutely we are absolutely continuing claiming that she was treated differently in these various respects than some other state employee yes that she was that that that disparate treatment is further evidence of retaliation that she didn't get a chance to respond audit finas like other managers did see this is where we continue to talk around each other saying that there is disparate treatment as evidence of retaliation that's just simply stating a retaliation claim ok we're asking you are you making a separate independent independence wrong or are you making a separate disparate treatment claim a separate claim not