the plaintiff's favor i fact finder could reasonably infer causation between the plaintiff's statutorily protected activity and the defendant's adverse actions against the plaintiffs of course some summary judgment ms rolls muskie is not tasked to present undisputed facts but i submit to you the following facts in this case are undisputed rosa musky was sexually harassed on the job in july two thousand and twelve she reported that and december tenth two thousand and thirteen  here there is this breakfast between brunton and rodel on december ten twenty thirty mm because i gather a mere not complaining about the firm's initial response to the complaint of sexual harassment they reason why right to left until much later and so what i've been trying to think is what are you arguing that actually right dell has just poisoned bread inten about her i would call it trash talking you know just say she's you know she's not really very good and i had problems with her you know whatever he says in the hopes of brunch and we'll work her career into this kind of indirect revenge and i want to know can if that's the theory how can we reach that theory if you didn't present either a cat's paw argument where brunton is the unwitting conveyor of these views to management at the company or if you're not really complaining that the company has anything to do with what right dell said ok yes so the admission that judge would motions for summary judgment and that order is very specific with respect to what we were allowed to present if we were going to dispute a fact and in response to a proposed finding a fast the judge and the court the district court provide that you may only prevent present data in terry evidence to rebut a fact it says that if you want to make arguments based on the fact the they propose their response to the proposed finding of fact is not that we were trashing her and and riedel told me about the sexual complete crap as it is not even necessary i mean it seems to me he could have poisoned her reputation with brunton without ever mentioning that brun n had made sorry that he had made the sexual harassment complaint agreed and that's our alternative arguments i submit to you that given the timing of this abrupt and negative change towards rosa musky which i think it's important to point out that at least from my reading of baird's briefs and this point i don't think baird is disputing that before this breakfast meeting brunch in a row smokie had a very close collaborative positive professional relationship and that just switched so under your argument what is the statutorily protected activity that you're arguing she was retaliated against for beginning december tenth two thousand and thirteen it goes back to that july twenty twelve report of sexual harassment and if that had if that december tenth two thousand and thirteen breakfast meeting had never occurred we wouldn't be here i would submit that it sort of revived it had brought it back to the forefront but how is baird supposed to know about that i mean we always need to find some reason that supports employer liability that's  janssen and all sorts of cases have been about that and i can certainly see and i guess what you're saying is although you know baird was ok it's first by accepting indirectly and maybe unknowingly retail's account of her it actually in the long run didn't respond appropriately to the complaint or as the district judge thought maybe you're complaining is a form of protection expression we submit your honor that it's both that it relates back to the july two thousand and twelve complaint and that also she then again engaged in further protected activity beginning in january twenty fourth teen and how baird no through a large bar or is barber was a principal key employee reporting directly to the global c e o he was redoubles direct supervisor he was the person to whom rosa mostly made the complaint of harassment and he never follows up when she are our alternative arguments we think there is a very strong set of evidence here that from which a jury could reasonably infer that those two men did discuss that complaint that july two thousand and twelve complain of harassment at that breakfast meeting alternatively if a jury does not believe that there is sufficient evidence that they actually discussed that meeting we believe there is sufficient evidence however that riedel poisoned the well it so to speak and that  the evidence of the january two thousand and fourteen activity that you claim is statutorily protected what was the activity and what's the evidence of it i know there's some evidence that she made statements in february of two thousand and fourteen but i'm not sure what january two thousand and fourteen was there's two types of evidence of that january twenty four thousand protected activity the first is rosen mostly after december tenth two thousand and thirteen is just racking her brain she cannot justif cracked so she went to a large barber inside i believe that alex brunton is treating me negatively and i believe it's related to his practice meeting with retail we submit that that alone bryant barber knew exactly what she was talking about he had perfect information at that point he investigated she knew what retail did to her but we submit further that there is in her declaration she says after the feb eighteenth two thousand and fourteen letter that i received i again told leo thank you your honor and good morning your honors me please the court my name is stephen to tullio one of the attorneys for preserving the illegally of so sheets in this matter the breakfast meeting is key in the case there's no question about that but here's the two most important things to know about the breakfast meeting number one the undisputed evidence is that it was not discussed during that meeting the two people who were present there one said it didn't happen the other couldn't even recall the meeting but the second don't  have you know we have circumstantial evidence i agree with you that the record doesn't in fact include somebody saying yes and we spent five minutes talking about ns ok fine you know so so we have an absence of evidence rather than evidence yes or evidence no but what we do have is circumstantial evidence that this sea change and certainly mr brunton interactions with her takes place immediately after that and we know what her history with mr riccio is and again i'm trying to like reconcile my own mind i think would be extremely easy for something negative to have been said without saying and by the way there  harassment complaint a year and a half ago totally understand the question and the point let's look at the evidence though as well and i think that will answer your question ok because i challenge that this notion that there was a dramatic drastic sudden abrupt change after that breakfast meeting is wrong ok why do i say that there are several reasons i say that first of all an abrupt sudden drastic change in the employment setting would be things like  terminations a demotion a cut in pay tracks and it something like you used to be involved in all the planning meetings and yet you are there people aren't giving you the information they would have or somebody  evaluation ok i agree with you thirty one factors were evaluated twenty four of them were evaluated as fair ok and this is really more isn't the greatest cad it's not i agree but look at what they wrote from is real small ski one week later in the letter that the center on december nineteenth it specifically said as we discussed during your performance review in december tenth two thousand and thirteen a skills rating affair reflects an assessment that an employee is performing at their expected level of responsibility in professional expertise if he really wanted to come back and have some sudden or dramatic attack on her there would have probably been a lot more rather than  and then fair and then a box in between and strong so she was assessed as fair and by the way keep in mind that she was assessed fair on a position that she had just been recently promoted to ok and a fair for somebody that is new to a position they were not telling her that she was doing eighty terrible job they were telling her she was doing a fair job there were plenty of positive comments in that evaluation there were also some things that she needed to work on it was constructive criticism so when you look at it from that standpoint how drastic of a change occurred also keep in mind that within a week of that breakfast meeting she received a pay raise and a bonus ok that is not dramatic drastic or  sudden quite to the contrary also the letter that i reference all of us was quite a bit smaller than her prior bonuses less and it was but bonuses a baird are not just based on performance they're also based on company performance in a given year and other factors of that it was considerably it was us that's true the letter that i reference from december nineteenth also and i think this is equally important in regard to this notion that there was some abrupt sudden change it went on to say we appreciate your efforts during two thousand and thirteen and we see you as a capable future contributor to the growth of beard we trust them you will work that you will work with us to prove upon these issues and we look forward to supporting your continued just totally dropped the ball well at the point that in the record shows that in regard to the discussions between mr barber and ms rowe small scale there were discussions but what was discussed was that she felt that she had been treated unfairly because of mr wright bell's friendship with dr brunton but again why why isn't that something that the company would look in to develop the facts at the optimal time to develop them right contemporaneously roughly with when things happen and if it turns out i mean that point she would know you would the company would know everybody would know what prompted this tangible you know th palpable change of brighton's interactions with her she has lots of other examples in her brief about how she's not being told about things she's not going to in appropriate time frame you know why not do that i mean because at some point somebody can feel so alienated that you wind up in this vicious downward cycle which seems to be what happened here i wouldn't necessarily say it was a vicious downward cycle there were issues and there was a period of time again displac or change you know there was a six month period after that evaluation in which there was discussions about some other performance issues that continued and then ultimately when they placed her on that employee improvement plan and keep in mind that when that occurred in early may and employee improvement plan is not necessarily a negative but yeah and it's how many other times and one other time in the company this ever happened the employing prove subsequently your honor this is a first time they had done so it was it was third time they had done it so you know honestly i mean you know she would be within her rights to find this extraordinary act it was extraordinary it hadn't  been a situation that required somebody go on an employee improvement plan or if it was just an h r device that they weren't as familiar with and i would also submit that there were  other i can't say that because it's not in the records all withdraw that but they certainly they had other performance evaluations and issues with people that they talked to but with ms rose most keep the difference was she did not address  the issues the four issues that were raised during that evaluation i'm concerned with the timing here you don't seem to be disputing that treated her differently after that practice meeting i understand you're arguing they don't amount to at first actions yes but you don't seem to be disputing that the way he treated her our their relationship had changed and it's right after that meeting well keep in mind that there is in the record evidence that before that breakfast meeting there were performance issues identified to her so it's not like she had absolutely no issues of that type and then after the  afterwards perhaps but also keep in mind that by the time the employee improvement plan and the terminations came about dr brunton was no longer her supervisor that he changed and he was not involved in the implementation of the p c or the monitoring of it yeah he might occasionally be involved always to the point that he was still assigning some work to her but he was not in control of the piece and he had no involvement in the terminations decision at all the termination situ was made by one individual on a series of facts that were that are undisputed you know during this employee improvement plan ms rolls most ski  spew left the premises in the middle of the afternoon and in prior instances when she had doctor's appointments and other appointments the record is clear that she did go to her supervisor and say i am going to be out of the office during this period of time but then circumstances that directly led to her terminations she did it and i would submit that that also is a legitimate reasonable final straw f that were detrimental to the company or its clients he would have raised them prior that you're an evaluation and yet that's exactly what he did not do but overall i just want to point out that counsel is really getting into issues of facts that i believe are for discussed was a model ski after his terminations and he specifically refused to make that he said there's this breakfast meeting and i'm not going to sit here and say that i didn't talk about it or that a reasonable inference can be made there and for the reasons mentioned your hono we request that the court reversed the granted summary judgment in this case thank you all right thank you very much thank you both counsel for the court will take the case under