that has a orchestra quality band as part of the show my client was hired as a child but she also they have a if you look at the stage of love the band is actually down below it's up above on the right during the show some of the members go down and actually perform on the stage so she also was a singer and she would walk back and forth with her cello as part of the show so she actually had three roles in the show the claim here is is those two claims first is that she was terminated because she was injured on the job and the second plane was she was terminated because her age and i'd like to go through both of those with respect to the injur charge that she was doing i gather that there were several people in the end terminated not limited your client was not charged in that meeting that she was faking her injury they didn't name the people but the only three of them of the charge was th people were abusing the backup system thought the three people who were using the backup system at the time were three people who have been injured now abusing the backup system doesn't necessarily mean more precisely that you're faking an injury was their statement of faking an injury in any of the evidence here made comments about people faking injuries and that's in the record but that's where they're not but that earlier meeting about abusing you know there's no evidence that there was talk of faking injuries at that time but they were upset and the three people who were using the system were in fact injured on the job and there was comments about you're abusing the system you don't have to do that you should be down there playing and not doing things that other thing is and this is the final comment about the three three people were involved in the terminations this ballinger who actually worked there in las vegas and ran the show and there were two musical directors outside consultants who claimed to be consulted with there's a memo from one of those consultants referring back to the fact that there was only this three week window when she didn't play during the the tire time she was there over a year she played everything no problems but just the one three week period now the last thing that's important is that she did file a worker because obviously the only evidence we've got when she says she thinks she was fired because she didn't play is that the sequence of events because obviously they're not going to say we hired her because she fireworks complainers or every live person says that's not the should be protected not just the technical side of the piece of paper saying i'm injured it's the protected conduct is the fact that these statutes provide that if you are injured then you don't have to work on certain days because of that injury so your protection goes beyond just the the claim that is protected but but it also is broader talks about the liberally construing in the fact that people shouldn't have to choose between working and not working to keep their job so if you look at the language  talks of bigger claims and then if you look at other states like kansas which has a very similar statute in very similar cases they've actually got it looked at this issue more specifically but in my opinion there's no reason to distinguish between just the technical by the claim which you want to can but if you're subsequent to that there's a couple days you can't work you should be able to fire them because they didn't work because they were injured now if they said you know you're just not here enough to be able to work and that's one of the reasons we're question of fact secondly if you look at the timing there she files the claim in early march she's has this three week period where she doesn't play the cello there's a meeting held right after that period where the director complains that you guys are abusing the backup systems doesn't talk about her not being able to come out of the walk around or whatever else doesn't talk about that chemistry with a bentley or talks about the fact that people are abusing the system and then giving seems to work i mean she's not failing to play any longer right and then some months later she's terminated right i have trouble making the connection between a figure to play in march and determination that happened some months later after she so to me that's very close proximity and then there's the memo after the fact by one of the three people they claim fired her and that medal basically says i don't know why the fire her but if we're going to do it it's because i heard that she wasn't able to work perform and the only time she was unable to perform was back in this three week period in march  the mixed motives of what you do is it's a because of was this the factor that made the difference i mean it could be other things out there is just not it had the task to be of the factor that was over the top  day seven days a week so it is it's a strenuous job but again there's no like the long term history of any absentee problems or anything like that so ok with respect to the other issue which is  pretext the bandleader before my client was actually brought on knew she had been hired and made very disparaging comments and mimicked her walked around he wasn't a decision maker because he got can well that's that's the that's the problem with that backlight on his judgment and they're get rid of him well but the basic was that she couldn't get along with him he was a poor leader and she wouldn't follow and i guess my problem is that if the one is about the not be able to work the other one is that there was this conflict between my client and some of the other people in the band leader and if he doesn't like i said this to her because of her age then that's a just come out and involved and other it is they actually they have a very elaborate program and in the program they literally have everybody's date of birth and it's a very young cast and so we're just looking at that going through the program looking at the economic benefits and in fact it's not actually here you really are no disputed issues in fact and we believe that the court below did appropriately grant summary judgment in response to some of the comments that were made a moment ago on this ground filed her worker's compensation claim in january of two thousand and three that was six months approximately prior to her terminations serve display has no hostility as shown in the record for anyone who files a worker's compensation claim there are a number of people given the nature of their business operation who have filed claims many of them have filed multiple claims and many of them position that nevada law does not extend the protection against retaliatory discharge to being injured element that's correct are you accepting as a factual proposition for purposes summary judgment that plaintiff was theory to discharge for being injured as that we do have a factual dispute well i disagree with that only from the standpoint there were multiple reasons asserted based upon the conduct of miss brown that precipitated entitled to receive sixty six in two thirds of their pay according to circus allays internal policies circle makes up the difference between sixty six and two thirds and seventy five percent so injured employees like mr brown actually receive more favorable benefits under circs own internal policy and in fact that shows very significantly in my view a lack of the enemy or predisposition against anyone who files a worker's compensation claim when you look at it from a temporal proximity standpoint as well we're talking about a six month period of time whereby the ms brown's own admission she was only incapacitated for a very short period of time we don't believe me speak for a moment about this march two thousand and three meeting that my opponent has reference there was that this is the court pointed out no reference to any specific individual about seeking an injury or being injured what there were were multiple concerns being addressed to the band as a whole which included ms brown in her colleagues that they were doing things that were inconsistent with management's direction for example there were playing of the performance and if you were injured which was not sped but implicit was that either you use the entire backup system or you play live he didn't think that overtly but clearly in his rochelle what was happening and what the concern was is that at certain intervals in the show she would actually play live and other intervals she would use the recording and the sound department which had to during this three week period when she was sufficiently incapacitated that she was not playing are you telling me that she was playing some times during this three week period it's my understanding that she chose in certain respects to play a during the not from the standpoint of other then it goes to the criticism by some of the composer and the musical director that the law is quality of the music i that it was an ongoing concern dating back to probably fall of two thousand and two this meeting that we're talking about occurred in the spring of two thousand and three and do it does the record contain an indication  how many musicians were using the backup system to replace some or all of their lives playing i don't believe that there is other than perhaps a declaration offered by the plaintiff in this matter m  issues with respect to the worker's comp retaliation claim also go to the aspect that ms brown is not cited to the court below or this court on appeal any where the kansas supreme court decided that under its statutory framework they were going to expand or broaden this notion of tortuous discharge in retaliation for filing a workers compensation claim and both of the cases that are cited period of time after the company received notice that a worker's compensation claim had been filed we certainly don't have that situation here we have a situation where six months have passed since the filing of the claim we also have a situation here where multiple individuals were terminated a total of four in june of two thousand and three including the musical director mr gasper ellie who in the court has addressed previously as well of the other musicians and so that diminishes the claim that means brown was terminated in retaliation for seeking workers compensation protection you're pretty anything under the record with respect to the other three terminated employees and they're filing a worker's comp for not filing a worker's comp claims my understanding is that there are actually not your understanding i'm ashley and so what you put into the record we did not is there anything in the record w was over the age of forty she was actually forty one years old she was actually preferred to the younger woman who subsequently replaced her about a year and a half later mr bullen juror who was the artistic director who the necessary element that she was satisfactorily performing her job because the evidence shows in the record she was not and in fact her attitude her negativity and her lack of abiding by supervisory direction on this appeal you're the courts already acknowledged was part of the team that was terminated and in fact the record is clear he was not a decision maker he was input was not solicited and so his comments regardless of how extensive they might have been and how long ago they may have been is irrelevant to the analysis i want to say it's entirely irrelevant it may diminish their force if there's an atmosphere of making fun of old people in the workplace whatever his comments may have been way back in time he was not given the opportunity to share those comments or any comments for that matter in the decision makers ultimate determination to terminate was there any statement when  he was fired that remarks such as those were part of the basis for his being fired you know no the bottom line here was that there was just function among the orchestra  he was not in the capacity much to search a grand to provide the necessary leadership and command the respect of the band members and likewise the band members didn't respect him they were an abiding company management decision making for example a big issue that came out in this march meeting that we were discussing earlier was the fact that mr brown and others relieving the sound booth during the actual performance of the show the booth was visible to the audience in the theater and was quite upset not because he heard it from other people he saw this for himself people would actually climb over other musicians to get to the door and would leave the booth during the performance very unprofessional people in the negativity the attitude where she had disparaged other members of the of the company these all factored in to the decision ultimately to let her go and going back for a moment to the age issue veterans that they had survived a long time ms brown tellingly testified in her deposition that she didn't take offense by any of those comments she didn't regard in the negative but later on now she tries to boot i don't believe that her being hired each forty one and being terminated each forty three is necessarily indicative of the just animus particularly when she has lack of evidence that really played that role the only brown has come forth with on the stray remarks issue demonstrates any pretext that would invalidate the summary judgment ruling as the workers compensation which allegation claim that claim is narrowly drawn in your only circumscribed by the supreme court is  that now right well i'll tell you what the record says i've never heard that court today the record is just and there's three actually affidavit is about in there from the three people who were injured and were fired and they all three say that they were not able to work during that period because of their injuries but there's no that's in the record that says that they previously had mister didn't perform or did or use the backup system so i had not heard that before could you point me to those yes my clients affidavit is ex of record one thirty three and that's where she talks about that she was using the backup system during march and then there were three people who were not using  using the backup system at that time they were all three used it because of injuries the two other two decorations are that from the other people maury marceau is extra to record one twenty eight and the very old trusts who's a different not really the other guy on one night seven the actually this is the this is june thirteenth memo on page one nice of them in that they talk about he never had the proper management skills to deal with diverse styles of musicians and talks about inappropriate sexual advances and a rash with accusations as being one of the reasons why he was let go so mr volunteer never indicated that it workers comp and the band that takes your case out of that sort of general treatment of workers comp claims yes in the sense that there was this conflict with you know what you're dealing with acrobat you can have another acrobat decision that