this morning is martin versus financial asset management systems and all number seventeen dash one thousand four  may have please the court my name is brandon hornsby and i represent the appellant in this case miss martin there this case presents two main issues for the court to decide upon the st issue is whether the trial court erred by dismissing miss martin's retaliation claims based upon a credibility determined the nd issue that this court has to make has to answer here today is whether the trial court erred by dismissing miss martin's f m l a claims based on the fact that she did not see a health care provider as defined by the f m l a before i turn to those two issues i want to briefly just talk about some of the core facts that i think both parties are going to agree about miss worked for both defendants we have the corporate defendant here and the c e o mr hogan who is the decision maker in two thousand and twelve mr martin made to separate charges of discrimination to the e that are not part of this case but are part of the evidence of this case they were against mr hogan and they just like this case they involve gender and race discrimination in december of two thousand and twelve the claims and the record yes yes there's testimony about that those those cases were settled in december of two thousand and twelve and then in two thousand and fourteen miss martin made another complaint of gender and race discrimination against mr hogan at this time it was internal to the vice president of the corporation during that time that she was she was speaking to the vice president h r she said that she had great anxiety by the way he was treating her as part of this discrimination and that she would need to take medical leave to treat herself specific issue she was concerned about is that she had heart problems and she was worried that her heart problems the anxiety would induce a heart attack or a stroke and that's what she testified to and i'll get to that later two days after she made that complaint she was terminated by mr hogan i think both parties agree about all those facts except opposing counsel is going to tell you that mr hogans testimony is and the h testimony is there was no mention of any discrimination whether it be by race or gender so turning she she testified that she did make those claims she absolutely did unequivocally  so we have to i think we have to credit that testimony of what she says she told the person she complained to absolutely are and i quote but clover requires a little bit more than that right there not there has to be some and we think the fundamental flaw in the trial court's analysis here was that the trial court didn't look at the totality of circumstances how they intertwine with each other instead looked at each inference that the pla presented in isolation but your best evidence that hogan do about this all the arms just a situation that went on well i think the best evidence is number one he knew his complaint before against him number one the st one was there s he knew he knew she had made a complaint before ok number two there was a policy manual that specifically said after a complaint is made in this corporation the alleged perpetrator will be notified before there's an investigation so we think there's an if you add those facts together there's an inference that he should have known we know that by hogans own admission that he met with the vice president of h hogan denies that he had any knowledge there's no question about that and i think what's important and i was thinking about that this morning sense of closure decision i think and i may be dating myself to say you see they know nothing so it's a very very hard for employment plaintiff to ever have a smoking gun or direct evidence it may happen and one in a one thousand cases it's all going to be through entrances and what the court did is that the court court went through the things like that manual she went through the meeting that hogan admitted that he had with bank and said why each piece of that could not be satisfactory for the jury but what the court didn't do is look at the totality and how all those pieces together could make a reasonable jury look at it and say hey if i add one plus one plus one plus one together then maybe i do have discrimination whether what kind of do you have to do you have to show that that he was told that he were do you have to leave open the possibility that he was told that these types of claims have been made or i do you merely have to show that he may have been able to assist him we believe the standard has to be that he he may have known it can't be i mean you have to have an inference that he knew me and known or may have been able to assume i may have been able to i don't think  would probably be enough i think it's got to be strong even we would concede that as be stronger than that but but known would be direct evidence i admit i knew about it almost never going to be able to get that so you're going to have to prove it through  absolutely right do you think that he could do you think that there can be an issue of fact if which we don't do on summary judgment but if one were to fully credit bands testimony that she did not tell him right and let's assume that there's a state of facts where we all know that she affirmatively did not tell him cherry do you still think there could be an issue of fact about whether he knew yes based upon this collective information because it then what you do is turn to his shifting reasons for his decisions in the case and examples would be like he said that he the reason he initially gave for the terminations was failure to me performance standards then he gave another one that said it was deceptive and insubordination so he gave different reasons there he also gave shifting dates hogan said that he testified during the deposition that he made the decision on the twenty six dollars the very day that she complained then in an unemployment hearing he said he did it on the t he also said that he had a shifting explanation he said he made that decision in the unemployment hearing by consulting with the vice president of h r then in his deposition he said he did not consult with the h r so when you add all of this impeachment evidence to all of this circumstantial evidence i think that's why you have to give it to the jury the nd issue and the harder issue for me is the f m l a issue in this particular case the court found that miss martin was not eligible for f m l a protection because she did not go to a health care provider as defined by the f m l a before i talk about that i was want to talk to tell you what the record shows this is the complaint that she said this is her deposition testimony of what she said to the h r director as i told lydia banging the v p of h r i wanted to make sure and she's talking about that day but she made her complaint i wanted i didn't end up in the hospital again i was very lucky in november not having any heart damage not to have a heart attack or stroke or die just like the doctor said and i wanted to make sure that i was taking care of my health making it a priority there is no question that the defendants were on notice that she had it potentially serious health condition so f m l a was triggered at that point the difficulty is  martin like all regular employees look she went to her health insurance pamphlet that was provided by the defendant she picked out a licensed clinical social worker to talk about her anxiety and she went and was treated by that person now after she made that complaint she was terminated two days later there was no interaction about the f m l a with the defendants over a year later when the lawsuits filed they started going through all the details of the f m l a and saying why she didn't comply with the f m l a one of the problems she had is that she really relied upon the company's health insurance ok that would be normal all normal people would do that but the f m l a has very tedious definitions about what a health care provider must be it also has a provision that says if you use your health care plan and they have the authority to make  key question that no we don't she testified that she was that person but my client had no knowledge of that because what happens with the f m l a is when you make that complaint and it's serious enough as hers was the burden shifts to it must shift to the employer and this is our equitable argument here there are federal regulations and we've provided those to the court because i wanted to give an example of how equity would intervene here but an example is twenty nine c and twenty five point three zero six this is a certification provision the defendants could if they didn't think she was seeing some or had a serious injury or a serious health problem they could have sent it to or they're required under law to send it within five days there's nothing in the record that they did that there's a notice provision asked for it either she didn't ask for it but she didn't know that she needed to because she didn't have to the burden once she may put them on notice the burden shifted to the they were on notice that she had potential f m l a a vent once they knew about it that triggered the f m away burden on them where they can send her notice if they didn't think she was doing things right they can say this is why f m l a is denied and they're supposed to do that within five day does she say anything about f m l i she didn't but this court has held that you don't have to use f m l a you don't have to use that trigger word i see that my time is up you can get ok so i think what's very cute key here is the case law says you don't have to use the magic word f m l a the defendant just has to have notice and an excellent case on that is cruz the public  public supermarkets for twenty eight fed rd one thousand three hundred and seventy six and what that the what that the proposition of that case that was was bad for the employee but it did say the word the burden shifting that goes on is that number one the employee has to give notice of a serious health condition so they can reasonably conclude if she had gone in there and said i have a headache that's not enough but she went in there and said i'm having anxiety i'm worried you know i have a heart condition i'm worried i'm going to have a heart attack or stroke i need to take some time off at that point the employer needed to give her notice that they were challenging her health condition at the minute silent child out what does that case say is required for notice by the employer to the employer you know the specific language that it uses is that you in an on going to court it is that you don't have to use the f m l a you don't have to say that but you have to put them that there may be an f m l a qualified health of that you have to basically has to be serious enough it talks about if you have brain it literally talks about if you have brain cancer you can't just go in there and say i have a headache you've got to give them enough information but if you give yes you are well if i guess if you say i have brain cancer got to run is that enough as it is it is the merits of a case and if they're not to share the burden to them to say we don't think you have brain cancer here's a certification and the department of labor issues a five page form that the employee then has to fill out likewise they can say we're denying it because you're not going to a qualified provider the employer has the ability to do that they have to do it within five days of getting that the record has none of that in here and what my argument is to the court on that is if this exact situation happens because employees all around are not going to know that in the employer doesn't do these things doesn't give them notice of what they've done wrong and because my client sort of cured this they're saying well you didn't go to the right person a year later well of course she can't prove a year later because time has gone by they've never get put her on notice but if they follow the law the regulations and she knows within five days she can go to the correct provider and then she would have that ability but isn't isn't the example that judge grant is certainly a type of medical condition that could put an employer on notice that you've got a serious medical issue absolutely stress sort of straddles the line right because everybody undergo some level of stress they do at some point in the job and so stress could be a momentary episodic condition it may be something that's happening on a given day where someone's had a really really bad day and just need take a break for a while or it could be something very right and that wouldn't be enough you have to give more in the testimony in this case is that she was software that the company knew she was suffering from so they are excel aerated hypertension she had a blood pressure of two hundred and seven over one thirty five that's on page two hundred and fifty one of her deposition and that her triggers for this heart condition were anxiety and depression and she testified that when i spoke to bang i spoke to h r that i told her about these things that's not what h r says but that's what she testifies to h r does admit that she said i was having anxiety i needed to take two days off but did you say that she went to a social worker counselor sort of person yes because of the anxiety that's where she wanted to start but is it really fair to see that as notice because if if i were having a heart attack from stress i think i'd had a cardiologist rather than to a social worker has very important as that the counseling piece can be if it's if it's a medical issue where you're fearing for your life wouldn't you when you head to the e r to a cardiologist and perhaps that would have put the company on notice you you may but not everyone does not and you mean there's thousands and thousands of employees and they're not all as educated and they may not realize that and she may have just wanted to address for anxiety so it didn't get that bad she knew she had the condition she knew anxiety was a trigger so she looked at the company insurance plan and she made a decision to go to someone who looked good to her and if the defense had said look you have to go somewhere else she could have curative but they never said that tour and so what we're saying is when that happens you can't dismiss the company the case on summary judgment you cannot use that against the employee if the employer hasn't met their burden thank you or i thank you very much you saved your time for  may please the court i mean as aaron saltzman we represent a pelleas financial asset asset management systems ank and jerry hogan before i get started here as i'd like to address the point the argument that the employer never gave notice and thus is somehow precluded from issues st this morning cannot prevail on her retaliating claims unless she presents evidence that the decision maker jerry hogan actually knew about her protected activity when decided to meet her employment evidence that he could have known is not sufficient we believe that's part of the holding in clover well but both of you are stating it in slightly different ways but the question is whether a reasonable jury could find that he had knowledge that summary judgment right that's correct but i think it might seem he doesn't she doesn't have to prove beyond doubt at summary judgment that he knew you can of course do that if you have a direct evidence case but in a circumstantial evidence case regarding something at like mental state knowledge the issue is did she present enough evidence circumstantial or direct to allow a reasonable jury to find that that's the standard right that's the director but i think it's important to differentiate between two types of evidence one is evidence direct or circumstantial that the decision maker actually knew about protected activity and on the other hand it is circumstantial evidence that the decision maker corrections in that case the plaintiff allen and all of the other african american corrections officers were moved on mass off of a particular cell block the plaintiff allen then filed a grievance over the transfer shortly after filing his grievance all of mr allen and only mr allen was moved back to the original cell block the six circuit a term in that that was sufficient abs circumstantial evidence that the decision maker actually knew about the protected activity grievance that's because the subsequent transfer case the adverse action was the proof of knowledge that that was not the adverse action that was limp i believe the eye for that adverse action was a terminations i'd have to check back on that case was the conduct of the decision maker that was used circumstantially to prove knowledge there was there was conduct that occurred after the fact that activity that showed that at that time prior to the adverse action the decision maker knew about the agreement circumstantially circumstantially yes or on that case he was from the little you've said that case seems to align here because there certainly adverse action after she makes a complaint  says was based on racial and gender based tory motives so and and here you know shakespeare got some things right in his plays and one of the things he said and one of them i forget which one is that the past is prologue and i wonder whether or not there's any relevance to the fact that mr martin had accused mr hogan in the recent relatively recent past of that type of discriminatory activity does that matter at all in the summary judgment calculus i want to address i think there's two points i think you may be asked two questions or just the st one is in the circuit case right now i want to talk about i'm just a case so does it matter at all in the summary judgment calculus that miss martin had accused mr hogan of discriminatory activity within the past couple of years does that matter at all in figuring out whether a reasonable jury could find that he had knowledge that this time around she also complained about o you think that's too far out absolutely your honor absolutely it assumes that anyone is and if it is if your boss discriminates against you on a protected ground fifteen months before doesn't that provide some sort of background context for complaints that you might make against him or her in the future your honor i think a little bit of context for the workplace here is important but it  assume that the decision maker should have inferred that because she fought a charge fifteen months earlier that this complaint after a contentious a contentious meeting was about race sex discrimination or race or sex discrimination i think is just as reason more reasonable to assume that she complained that she would had been treated poorly during the meeting well doesn't mean that it was about a project that i tried to characteristic what about mr hornsby's contention that mr hogan also shifted or changed his reasons for the terminations decision and also had conflicting testimony at the e e o c proceedings and his deposition about the timing of burden which doesn't contain does not require the in florida offer any kind of reason for the termination whatever it is if you think what evidence do you think can legally satisfy a prime of facial burden under clover under clover i believe there has aside from direct evidence obviously if you have the decision maker making an admission that's on record that of course that will get you past summary judgment on the prime  but in a circumstantial evidence case what evidence do you need to show that the decision maker knew that a complaint about discrimination had been made against him or her your honor i believe there's two types of circumstantial evidence that we're taught that need to  circumstantial evidence that the when he was transferred back that person did so in response to the grievance on the other hand in clover there was only evidence that this is the decision maker could have known or had the opportunity to learn about the protected activity and that your honor is insufficient what what would be sufficient besides besides direct evidence either testimony from the decision maker that he did now or testimony from someone else that they did tell him is it in your view is there any category of circumstantial evidence that would be sufficient to show that he knew absolutely your honor so going back to the alan case there was an action taken by the decision maker that subsequent transfer back to the original cell block which which was circumstantial evidence that when that transfer was made they knew about the grievance that i'm with just jordan i think i don't want to put words in your mouth but that sounds pretty similar here it sounds like you could say that her was also terminated the plaintiff was also terminated so it was sufficient just that the adverse action be the subsequent activity it shows the show's knowledge then every kid you know temple proxy wants to me alone would be enough to me is not enough let me give a different example i think also cleared up so here's here's my concern if you have a case where everybody is that diametrically opposed to what was said and what was said and if everybody on the plaintiff's side says this happened and everybody on the employers side say this didn't happen when you deny summary judgement ever or do you grant summary judgement for the employer because the employer can the employee can never really contradict what was in somebodies mind direct that the i don't believe that the plaintiff can ever prevail in this type of case so any activity or comment statement from the decision maker after the protected activity but before the subsequent adverse action could be circumstantial evidence that they knew so there is another case that i think it provides a good example of what what i mean by that there's a rd circuit case d n d i believe distributions are cited and actually in a appellant's brief it was the decision of the plaintiffs had gone and filed a charge of discrimination with i believe the state reporting agency and come back to the office and the decision maker when she came out the office made a comment or saying i know where you've been or  something to that effect that's evident when the decision maker later denied and said that's not what i meant by that comment but i don't know i didn't know about your protect activity the court said that's something that's not so you can't make that assertion there is sufficient circumstance or sorry let me rephrase there is sufficient circumstantial evidence to create a genuine issue of material fact that you in fact knew because you made this comment suggesting that you knew not suggesting that you could have known suggesting that unit so that kind of circumstantial didn't and miss martin has no evidence that that she did so to quote the holding one of the passages in clover which she told she told him that there had been a plant right that that much is undisputed reasons either which is sufficient to defeat her of my late claims reason number one she cannot show the healthcare provider ever found that she was unable to perform the functions of her job that that reason goes all completely it much later there are two subsections over the definition for a serious health condition one requires that you see the healthcare provider within seven days of the onset of the period of being capacity at stake i think we can incapacity in treatment  other is the chronic conditions problem which requires that your condition require periodic visits to a health care provider believes the language on so you have to show that your condition required you to visit a health care provider which necessitates that you actually have visited a health care provider twenty nine u s c two thousand six hundred and twelve states an employee's entitled to protected leave for among other reasons a serious health condition that makes the employee able to perform the functions of the definition of that problem thank you right thank you very much like you addressed three points very quickly your honor it's st as to the issue of temple proximity that is a very powerful factor the retaliation claims in this case mr martin was terminated within two days of making her complaint the trial court itself said and i'm quoting what the trial court said the temporal proximity between planas alleged complaint and her term terminations two days would generally be enough to support an inference of cause of connection that was the trial court's very words and then the trial court went through all of the factors that i described to you the nd thing is i want to tell you the facts in our case are much stronger than the ones that are in clover and here are some of the distinguishing facts st of all closure did not involve prior charges of discrimination nd and closure there was not a handbook that required the notice to be given to the perpetrator as there was in this particular case also in clover you didn't have any of the shifting reasons that are in this case but i think the most important factor of all of this is the supreme court's decision and review sanderson plumbing products inc in that case the court revisited the standard for summary judgment and employment cases and essentially what they did the court did is it lightened the plaintiff's burden because the court realize that we were getting to a situation where players could never meet their burden with the way many of the courts were construing the standard and i says suggest to the court reeves was decided in two thousand that if clover were decided under review it may have very well come to a different conclusion but the key standard is what happened is that the court must evaluate as a whole the record as a whole and that's where the totality of circumstances come in and find and find that a reasonable jury could not possibly find in favor of the plaintiff and what the court also said is a prime aphasia case combined with sufficient evidence to find that employers asserted just cation is false may permit the trier of fact conclude that the employer unlawfully discriminated and i think reed gives this court guidance as to how to look at all the totality of the circumstances