good afternoon and may it please the court my name is james p can't buy represents a and we argued on behalf of the appellant angela cummings like reserve three minutes rebuttal i'm going to start with our defamation claim because i think that's the report didn't come to my attention to the last day of discovery when i greg punk was a security supervisor who we deposed on the last day of discovery which was made nineteen to twenty fourteen he brought that with him and itself but at that hearing when they were granted leave to file their answer i asked to be able to pose the company under rule thirty six and also to take depositions of this witness i am to why because we did just that report coming in the last day of discovery and we haven't seen that before i have a question about damages and in addition to the presumed damages what other damages what would your client seek with respect that's not part of it or just curious about the lost wages and benefits of her employment the harm to her reputation it is largely very you're saying that that that was caused by the statement that she was dangerous you're alleging that she was fired because she had complained and not because she had actually violated all these policies but being fired because you complained is not the same as being fired because somebody all spread a false rumor about you so i guess i don't understand you know how they fit together  and i appreciate that i think mostly we've been saying that that's the presumed damages for harm to our reputations are down our main damages point but the way that everything happened at the end there together i think that's that was something that was taken into consideration but i do i do understand the point that really the retaliation would be the prime source the loss of her wages and benefits of employment so how with how was it retaliation how were th claims pretextual here well the in particular there was the idea that she didn't give her phone number to the employer her testimony is actually she did you get to the staffing office and the staffing office didn't updated in her record the second one was the cell phone that was a brand new thing that they had they've never had these cell phones before there was no written policy as to what was supposed to happen to it and they didn't give a written policy about that until the day that they i mean it seems like the way i understood your brief these she was fired based on some sort of sham policies but the she was to have been actual policies regarding attendance timekeeping the self phone contact information and then i guess monitoring the tree you know i mean there was clearly a policy on that actually there wasn't anything that said that she could not do her training modules or watch the video that she was watching which was on  preventing infectious diseases in the hospital there was nothing on that and the testimony from cynthia armstrong her coworker as well as miss coming home own testimony is that this is something that commonly did  and i think previously your client reported miss foster for the same exact thing so i am not sure i understand how you could say that there was no policy regarding it it wasn't the same as i think first of all miss foster was actually never written up or given any discipline for that they talked to her about it they didn't actually write a wrapper give her any discipline and it was completely just different because under that circumstance miss foster was watching you tube videos and it was like some sort of comedy about some guy that was dancing in a funny way whereas misess cummings in this case was watching something that was related to her work it was about preventing infectious diseases in the hospital and as she was watching it from the video shows she was watching her monitors she looked over the video a little bit she watched her monitors she looked in the video she moved over to video washed and low but it's a fifty two second long clip and those monitors you don't have to keep your eyes glued to them the whole time they have alarms they have audible alarms and if anything goes wrong it will draw your attention to it and there are two people that work in there and the person that she was working with actually spent a great deal of time in all of that is there anything in all of that would make require us to find that the the treatment of of the of the watching of the video was a substantial was false and led to her the difference in treatment between that video and the other videos was oh they say they really didn't think it was it was serious they thought it was well  timing of a text that's why i guess my question is what makes you think it's pretext pretextual for them to say that one piece is that she was watching you maybe she could maybe she couldn't but that's one reason was it a pretext it was a pretext because because for one thing the incident happened on december first and rachel in foster sent that video to a self and informed the charge nurse on december first of two thousand and twelve nobody says a word to her nothing happens until she suspended on january eleventh of two thousand and thirteen forty days later if this is such a serious and terrible violation why are they jumping on it right away necessarily a serious and terrible violation it's one of many many problems they were well it was the thing that they ended up firing for i mean that was the testimony of mr for be is that the reason that they fired or was the watching of the video i mean it's the last straw and yeah so they had they had a pa they were relatively any fish or maybe they were cautious but the write ups didn't any of them seem to happen instantaneously and i'm not sure what that proves well the it was three days after she sat down with said i believe i'm being discriminated against and i'm being retaliated against it had to do with the scheduling over the holidays she tells him about her you know see charge he was new he had just started in november so he told her about that on the eighteenth of december and three days later she's written up for three things that that all happened approximately a month before the thing with her her phone number they never even came down i mean it was her supervisor could have just come down and ask her questions about it they didn't even do that they said well we couldn't reach you by telephone i'm right here working here two or three days a week on the same schedule as the supervisor she could have come down she could've left word in the unit well that's all you're saying is they could have had a different policy that would have worked out just as well but that's not really the point is it i mean if they're supposed to have your phone number doesn't matter to say well you could reach me about e mail or come see me if that's the policy so i'm not sure what relevance that is well again our position is that with the with the timing of the way that it happened and giving her three write ups on one day for things that were sort of remote in time by that point right after she complains about what she felt discriminatory  adams about that in the next thing you know three days later she's getting written up for these which seemed to be again with the cell phone and there was no written policy she had left it on the desk for the person because the person wasn't there she'd been getting written up for overtime so she couldn't stay around and wait for this person so she did the best thing that she could she left a note right on the desk where the person relieving her should find it and she left now what happened to it after that she doesn't know but at the end of the day should you know to write her up for that when there was no policy it was something that was brand new and to put her on this ultimately this final morning we believe is protection will run at a time which is tell us how we know that miss foster originated the r that shooting up so miss cummings was suspended on friday january eleventh two thousand and thirteen on saturday atkins came and wrote it up she says i heard the rumor from many people right she heard it from coworkers yeah and the coworker that she was working with that day workers it's true it does say coworkers and i don't know if that's the security person who is writing exist she was relatively unpopular with a number of people and that right there were you know there was some testimony as about one of the ultimately one of the problems i have with this is it seems to me that you may be right that given all the circumstances of all the people who worked in the lab who knew or who came up and down who you know who interacted with your client it may be that all of those people it may be that r people we're having all kinds of reasons with diane saying it came from many places with miss foster saying i didn't say it with nobody saying all of these people nobody says i heard you say well again this is about drawing an inference this is about could a reasonable jury believe that she did it based upon the circumstances that are present about the timing of the suspension and the timing of when it was said and who was strong inference are we supposed to give every inference to the to the plaintiff your but at the same time we're not supposed to let a thing go forward just on speculation and so here it seems like there's a chain of inferences and i'm just what that comes from me it seems like that's where it's coming down to if there is i mean what would make this case be anough in light of the fact that you know i think you can argue speculation still and  do you know of any case anywhere in which a defamation snow slander case that was based on a statement where there is no testimony that the defendant made it there's no testimony anybody heard or may that she denies having made it and nonetheless despite that anywhere in the country do you know of any case in which a plaintiff under those circumstances has recovered want to start my question sort of where we've left off do you agree that we have to take all inferences in favor of plaintiff who's the nonmoving part i don't and that's not even what happens on motions to dismiss it so so so well well for are very very surprised to hear that so tell me why we wouldn't take all the reasonable  you've got the possibility that she was working the day that the threat was called then or in theory ok you're now arguing with specific facts but your eye but let me just start by saying i think we have to take all facts that are pleaded in her favor and all reasonable inference so why would i want you to assume that for the purpose of my question there is evidence there is definitely evidence that these two people really did not like each other so there's a motive to say something negative about the point here and we know that the that the defendant had reported plaintiff at least five times for other infractions not only was there this bad blood between them but she had acted on it previously or one a reasonable juror could conclude that you don't just keep turning somebody in for small stuff if you like them or you get along well with them so there's some motive and there are also the fact that they were working together at the time and there's the fact that diane is the one who reports it and if you are going to start a rumor of the best way to do it is to say oh this is it isn't me i just heard this from other people and i'm just passing it along but that isn't inconsistent with a jury finding that she actually not only the one reporting it but the one starting it so why isn't that a permissible inference for a jury we that doesn't mean that she would necessarily win anything but at this stage why isn't that enough well i think there's got to be a certain it's going to reach at least the level of being a reasonable inference why isn't that reasonable what i just said ok i don't believe it's reasonable because a miss foster even if she made that stink she would have a motive  to turn ms cummings in by making that statement she was didn't know he was turning her in it seems like this was just most gossip amongst the employees according to diane also there is is the testimony is that they surmised that ms foster was the source of that statement simply because somebody supposedly checked attendance because they didn't like each other and because she kept turning around all the time for a whole bunch of other stuff and there were several hundred other employees working in the hospital that day i'm sure some of which may have not liked mr cummings either and i don't know that that's that's where the guesswork comes you know that that's guesswork but what i'm talking about is some to there's evidence to support what i said not just guesswork that maybe other people really didn't like her you are so the inference would be based upon the fact that she may have been miss foster they were together and that they work together that  department as well and named them in a defamation lawsuit and gotten past summary judgment on it well i think you know seems like anyone else we don't have the information on like we do with miss foster and their relationship so this is really a difficult i think question a question here that's why we're asking all these questions but even at this stage i think we do have to look at it and give her and to diane at but you asked also did you join in asking the magistrate to be able to depose diane no we did not because we didn't feel like mr kemp had enough evidence to support that claim to begin with discovery where you might have been just what she might have said right i mean that's the other option i mean absolutely absolutely not and mr kemp took many depositions of coworkers in this case he couldn't find one person to say that miss foster said that to anybody miss foster's testimony was she didn't even think she was working that weekends when the threat came and she came back to work they only work like two or three days a week that's when we're technicians and she heard about the threat being called in from others so that was her testimony on the topic so we've got this diane saying she's heard it from several employees who knows who that could be a security threat to commit workplace violence is obviously something significant that if people hear about it happen in particular in their department there's going to be talk about it so there wouldn't be just a motive for miss foster to be discussing that you know every employee in the department i would think that heard about a call being coming into the department like that would discuss that out of concern for their safety i can move on now and discuss the issue of pretext for retaliation claiming some of the if you have nothing else to offer on defamation let me ask you about a pretext there was the argument that these were sham policies that you were lied on in which to terminate or and that supported the violations one of them was the use of the video or looking at the video while she was working while mr cummins was working and  duty did this constitute using the internet even though it was for work correct because this was not for work miss coming to testify that she was going on to the computer to check what training modules she needed to complete and before she got to that point of checking what modules she saw this video available to watch on the computer and so she watched it at which point she was videotaped by  just clarify for me what the video was of what a court is and this is an important point to that i don't think made it into anybody's brief but the hospital did not know what she was watching on the computer what it was a video until this case and discovering with cummings explained what it was but what it turned out to be was an infectious control video which is available for some employees and may be required to be watched but wasn't required of miss cummings and there was a policy submit it evidence from the department was that was that was the incident with respect to watching television was that the straw that broke the camel's back was the last thing that happened before she was dismissed correct mr cummings was on a final warning at the time that that policy violation happened which the decision was made to take her to terminations so the hospital went through all four steps actually five steps up its progressive discipline policy wit essentially gave her a pass on one of those what about the cell phone policies seems like it may not have had a paul written policy there was not a written policy on that we had evidence in the record that the practice and the instruction to th unit coordinator to technicians was at the end of your shift take it and give it to give charge nurse or the incoming unit coordinator miss cummings did not do that she just left it on a desk it was that the cell phone was a relatively new thing in the department it disappeared it was never found again they were trying to call her to find out where she put the cell phone and her yeah where she put the department cellphone and her contacts telephone number in the records was not up to date which resulted in the other level two corrective action being given to her so yes she was there other days and they could have gotten her contact information from her but the point was when they were trying to reach out to her using the contact information she had on record to find out where she put the cell phone her contact information was no good but there wasn't an stablished rule about that there wasn't a there wasn't a written rule about what to do with the cell phone it was just a verbal direction and then because of this incident with mr cummings they implemented a written acknowledgement form that they had everybody signed off now the policy about updating contact information was in writing and in fact mr cummings had previously with prior contact information changes going on to human resources and updated her contact information is a form that people fill out so we produce those forms that you hadn't personnel file where she done it that way in the past there was no evidence that she'd updated her her contact information prior to the december incident with the cellphone so let's talk about the timeline here a little bit and you talk to about  corrective actions especially on the heels of of miss cummins complaint yes and there were there was some testimony about the reasoning for that and it was mainly just that's not an atypical amount of time to lapse between occurrences and  write ups and what people's schedules the technicians in particular sometimes only work two or three days a week and so their schedules might not over always overlap with their supervisors there was no evidence in the record to show that that was the amount of time that passed was atypical or unusual with what happens with any other employee or disciplinary action in the hospital so it was really just a situation where you can't draw anything of significance from that passage of time and then as far as the timing of events the initial the level one corrective action was given before any complaint was lodged by by ms cummings which was the first step in the purpose of progressive discipline that led to her terminations and then there are some rather significant time lapses that occur after that like she filed her charge of discrimination in july july thirty first is when the notice was sent out prior to that time she'd already gotten not only the level one corrective action but also the level two corrective action so that happened before there was even a formal charge filed some of the corrective act actions were based upon violations of the attendance policy which is just a point based policy so there's really no wiggle room there if you get sixty three absences every absence after that you get another point seven points that's a level one corrective action at eight points that the level two corrective action so there's absolutely nothing unusual about the attendance based corrective actions that she was  given there with the final decision makers for the termination decision were christopher paul like he was a new director of critical care for the hospital so he did not have a history with ms cummings cummings is african american mr foote be african american she had met with him on december eighteenth because she had concerns about not getting a schedule she was i had asked for a coming holidays miss cummings recorded the conversation we had the recording and who is the the supervisor that made the decision he had no idea his testimony was it was contradicted that he had no idea she'd ever made a complaint in the past of any type of protected activity labor commissioner discrimination retaliation anything mr for b was on notice that the charge of discrimination by virtue of miss cummings having told him but he didn't have any knowledge of her other complaints with respect to a complaint with the labor commissioner there were three different supervisors that issued the disciplinary actions in the discipline so there's a number of people that were involved in approving these actions so our position was there really just wasn't evidence of sufficient evidence a pretext to get by summary judgment for the retaliation claims thank you the excerpts of record volume two page one seventy one there's e mails between for be an ad can swear they're talking about getting the information together on this physical violence threat so that they can act on it quickly and they were looking at before they actually wrote her up for that the level two was attendance is treated a little bit differently if you look at their forms there can be a second level two for attendance only and so that's why there were two level two schools one of them had to do with attendance and there's their policy and their form specifically says that that can be a separate level two again the inference with respect to this this phone call into the telemetry room that diane reported there are only two people it's a very small  wasn't necessarily the two of them for twelve hours alone some people can come in out of the unit secretary i think they call it could come in like on their breaks or on the one that's a raise on foster actually was in there that day with it you took the video so you had that there would be people that could come in and out buster was not on duty that no raison foster was on do you know him to start out separate day on the day when she took the video but on the day that the call came in again the testimony was the call came into that telemetry room where those two people were working the entire day so rachel in foster was there she had the motive she had the opportunity the timing all works out you're talking about the cool the cool about can't believe that she hasn't been fired already for this video thing when she she's had a profound dislike for my client and i believe with the motive of the opportunity the timing of the inference is reasonable that the phone call came in or the i'm sorry that