good morning your honor robert palmer beer appearing on behalf of the plaintiff i'd like to reserve three minutes for rebuttal of one man i find myself in kind of an odd situation here because in essence in order to effectively argue this appeal i suppose i'd need an hour to give you a closing statement because that's base what we're here for we're here because the district court in this particular case it resolving the summary disposition matter rather that applying general standards of just position review basically tried the case she acted as a fact finder she pick and chose amongst the case amongst the facts drew inferences from it and from there concluded that the plaintiff was unable to sustain its burden i'd like to focus if i may essentially on the the real issue in this case and the real issue in this case is could it fighter of fact have found that the reason form is flawless is terminations as a result of a third surgery was in fact due to so we do to the fact that she this issue giving the blood products or could they have found that the cause the cause and made a difference the straw that broke the camel's back was either her age or the fact that she had filed a retaliation claim less than two months before this event occur in reading the briefs this  morning and last night i noted that oddly enough neither side nor the court basically cited the nasser case which the court knows last year changed the standard for retaliation or at least  the the standard for retaliation indicated that in a title seven action it is a but for standard similar to the standard that's applied in an age case under gross that being said i would like to see in applying that standard i would like to direct the court's attention to the recent case of burrage versus united states this is a case that was the cited just this year in january of two thousand and fourteen it was a criminal case the charge was whether or not an individual had caused death by supplying heroin but judge scalia in that case basically had an extensive discussion of what but for means and he indicated in that case that the but for standard applied in that criminal case is the same but for standard that is applied in age cases in retaliation cases he cites the nasser case he the complaint that there was this complaint a couple of months before the final incident right are you arguing that that alone is enough to make it a but for cause or what else do you have th links that in fact other than temporarily to the ultimate discharge exactly i'm glad you saved me two minutes to get there i think that's exactly where i want to get to the court relied solely on what you have pointed out which is the two month period and if you read the district court's opinion judge roberts talks about whether two months is and whether two months basically comes conclusion that all the plaintiff had was the two month relationship what the court ignored and why i think she invaded the province of the jury in this particular case because first of all she ignored the fact it was actually less than two months the complaint was in the middle of february the event that led to the these the surgery was on march twenty ninth the discipline was on april fourth so this wasn't a two to five month this was a one to two months it was actually less she ignored a number of facts in the discipline that are crucial to those facts include the following number one the surgeon dr schreck who complained about the administration of blood products was very clear in his testimony he indicated i didn't want to get her fired i might even want to get her disciplined i wanted to have a discussion about communication in the operating room what the surgeon like and all these complaints terminated i want to have a discussion regarding what was what was ongoing i mean they are separate departments are the he's not a serious not even employees not employee ok so that but they he makes a generalized complain retaliation you have the incident here and then they're fired here here you've got several things then the complaint then the firing with the third incident right i don't disagree with you but that's what starts a ball rolling but then when the bug gets rolling mary  and changes it she extrapolates it and increases it and the original complaint gotten his phone is fired included all a whole other paragraph about improper drugs being given not monitoring the  the situation so in essence based upon a complaint we had a problem here it turns into a two pronged attack there's no investigation done this for us is never talk to me when you say just help me on the server i think you said she takes the complaint but i thought part of your submission was that shrek had not filed a complaint but he he said that he went to the people in the writing he said this happened i don't want this to happen and it was from there in a school in ski authored a complete a lengthy document that included complaints regarding her anesthesia care which ultimately got removed as part of their in the grievance process so she overstated her case she didn't interview ms phenomena in the process and the grievance process removed by who in what way the way it worked that she was given a level three performance improvement plan that called for terminations the original document you'll see in the record the doctor that's attaches the amended one the original document had a second charge that basically said she gave the wrong drugs she didn't monitor the blood pressure properly it was a whole page of of an attack on her anesthesia care she  grieve that terminations and the parties above the panels and councils that heard their grief and says it didn't work through the hospital higher fee and it up removing all of that charge and leaving the charge take any issue with that that particular event i mean missed phone as testified her ex husband was dying and she was not her game but she did it and discipline was appropriate and we've always taken the position that that this i watched oprah was not alternately a basis for a happen he administered the wrong drop it that the earlier she did yes we don't take issue we take issue with the cell phone incident because other people listen to their their i phones during the you know there's three incidents administrative all her care and the woman was lonely and melissa slowness saw her there and thought of water sitting here so i'll sit here so she doesn't feel that she's all alone she wasn't providing any care other than sit thing with the patient before surgery so she wouldn't be apprehensive and she looked up her p v a and was looking up medical terms for another person there she was on high pockets he's which is a medical situation and she was given a an actual performance improvement plan for that where is another employee who was caught did not appreciate her pretty well apparently the patient was put off for some reason i mean the complaint was never there was a there was a statement that she made an anonymous complaint months before nobody's ever seen that complaint but assuming she did this for me she did but but the odd thing of that is another woman who was actually listening to her i pod during the course of the surgery a younger woman received a verbal counseling for that and if you're going to put them on a continuum of relative i guess severity it would seem to me that somebody performing surgery with i pod is worse than a person who's babysitting who happens to be checking out a medical term and there was that it was a different type situation of my should sum up the only final point i want to make up to make is that there's actually a question of fact as to whether or not about to a great it was in the tube and there's like a little stop cock before actually enters the patient and that had yet to be turned so it was sitting in the tube but hadn't gotten to the patient yet as far as as far as everyone can tell but there was no adverse outcome with the patient ye the second fact that is not in dispute is can be seen through plaintiff's testimony as she admitted that she ordered that this blood product be administered to this patient she had ministered the blood product to the patient and she never received any verbal order from doctor or doctor me to do so she admitted that her license doesn't permit her to do this and she admitted that boma has to posses the nursing policy and then another  policy that prohibits her from doing this but she did it anyway and when doctors found out after the surgery he created his testimony complained to every supervisor in that operating room because it was a severe enough situation that he felt it needed to be discussed and remedied because it's a very it doctor does not administer blood products in his traditional hip replacement surgery it's very unusual and for him to have his patient receive blood products was very significant so and also he didn't think in hindsight he looked looking at the case did not think that the patient needed blood and  testified whether to terminate or discipline someone for that is a nursing decision it's not a doctor decision and also dr frank was not aware of the prior incidents that she was not aware of the medication it incident what your take on it i think i think there's givens you may be right as i was listening to the questioning the removal of in the final corrective action two references to the medication did not refer to the earlier situation now what happened when they investigated the incident the blood incident and they are trying to figure out you know why she gave this blood there was a view of some of the practitioners that it was in fact plainness choice of of anesthesia that caused in the amount that was given that caused the plane explode and the patient's blood pressure to lower and because the place patient's blood pressure was lowered then the blood was given that was investigated there was a different and that was written in the original corrective action through the grievance process it was determined that different practitioners had a different view of that some practitioners thought that it was the appropriate amount of medication to be given because obviously they go through m and m's and things like that other practitioners thought no it about the initial amounts and then as it goes forward to see arnie does its lessons and does have the training to make those decisions as to whether or not and that was how much of a seizure or how much blood anesthesia it was the end of next that there was a side of the go to the back to the original question because of that they did remove from the corrective action any discussion of the amount and amount and types of anesthesia given and they just then focused on the administering of the blood product because there was no question there that that did they are did they not consider or virtue the giving of the wrong in the epidural incident sure they definitely considered that plane if it received it as you should  third step suggesting that there had been a prior second step so the corrective action is in her filing it you know it's part of the sequence it was provided to the grievance panel it was reviewed by the people making the termination incision know that certainly was was considered and in fact after plaintiff had received that corrective action she was told that she was going for the medication error she was told that she was going to be monitored and that any further medication errors or errors of the sort like the blood transfusion could result terminations so she was well aware of that fact going to go into the retaliation claim in this court touched on this plaintiff had received two corrective actions before she went to human resources to complain about these statements that were allegedly made twelve and eighteen months earlier about her age and about ms galinsky apparently wanting to terminate two of the older  noted the wheels were in motion for the for this discipline and for the situation prior to plant ever complaining about any sort of inappropriate comments that were made to her the only thing that occurred after she made that complaint was this administration of the blood product so the other two issues that the other two situations a plaintiff was involved in could not have been retaliate torrie because they occurred prior to the protective activity the only thing that occurred after the protected activity was this the blood transfusion and again there's no dispute in this administrator she would prepare the corrective action and in that consult with her administrator if there's a terminations she prepares a corrective action submit to her administrator it's reviewed signed off on and then it's issued by the hospital r director and then just another employee of the hospital that sits on the complaints that plaintiff had made nobody told her that she shouldn't have made them after she made them nobody started you know pressing on her like some of these cases that have been signed or are picking on or criticizing her work or making comments to her she proceeded to work just as she had prior to making a comment nothing at all happened to her until this very serious error made in the operating room so as this court had noted there is no evidence in this record at all even suggesting a retaliatory motive and whether it's two weeks three weeks a month there's got to be some evidence and absent temporal proximity and there is not in this case regardless of whether using a but for a significant cause factor there's got to be some evidence of retaliation absent temporal proximity and there's not in this case now as it relates to the age discrimination claim this court has said in the carter case just very recently that to establish even a prime aphasia case the plaintiff has to show she was treated differently than a similarly situated younger employee plaintiff has not demonstrated that here now plaintiff argues that she's not required to do that that the but the similarly situated standard has somehow been abandoned by the courts i disagree with that i think this court has recently said that in the karna case again that that that is the standard but nonetheless you still have to have some evidence of age bias and we have no evidence of age bias in this case whatsoever the statement that allegedly made about terminating older employees that's not properly before this court because it's based on double hearsay plaintiff did not hear ms galinsky say that she heard another she heard it from another employee who heard it from a physician so we've got to have as a peer say in that statement should not be before the court and musical and ski has denied making that statement the other statement about the sixteen hour shifts if you look at plaintiffs testimony she did not testify that mr gillespie told her she was too old to work sixteen hour shifts plaintiff was having her evaluation she had chosen not to work sixteen hour shifts anymore because she said it wasn't the way she wanted to live her life it was too harsh a shift in misc alinsky according to plaintiffs that are you getting too old to work sixteen hour shifts it wasn't as if miss going ski was telling her you are tool to work sixteen hour shifts are or you're to old to work at all apparently there was some discussion going on and an album is going ski deny saying it plain of says she asked me if i was too old to work sixteen hour shifts that's a big difference then telling someone you are too old and certainly it's not evidence of age animists besides those two statements there is nothing else in this case to suggest any age animus whatsoever no one may come into play if nobody treated a younger employee any differently than they treated her regardless of what standard you're going to use and whether you have to use similarly situated at the end of the day you've got to have something to show that it was because of age and there's no evidence in this case that it was because of age that blood was needed in this case and plaintiff misrepresents dr macon's testimony throughout the brief saying that dr macon agreed that the blood was indicated that is not what dr macon said plaintiff actually had gone to dr macon after the surgery and said will you sign this order for me and dr macon refused to sign the order so dr making did not agree that blood was indicated and dr macon did not tell the plaintiff that that she should have given the blood there's also this discussion about it plaintiff has said that it was really the charge of the charge nurse the nurse in the operating room that was the one who was responsible for ordering this blood and you know she had signed a document that said well yes the  testimony was very clear when we asked her about that she said i only signed the bottom of that paper because when i'm getting a c r and asking me for blood my assumption is that c r and he has gone through what is our established protocol that we do not vary from us the physician if you physicians agrees that blood needs to be ordered the physician says yes or no then the cia signs off on it she gives me the paperwork i go and i get the blood from the blood bank so kendall had said i only signed that because i just assume that doctor said yes because she's asking me to order blood i never heard him say that he wanted blood so it wasn't it was it was a nurse kendall's job to communicate with dr shaq the communication was to be  of no import as to mr schroeder he was not working at boeing there's no indication he ever worked for dr shaq and if he administered blood as a c r in a without getting a doctor's order that doesn't mean that he you know that doesn't mean that that wasn't a policy but we don't really have any idea why mr schroeder's affidavit would be of any import here at all he wasn't even working at belmont at the time that this fifty how happened so to sum it up if need discrimination in retaliation case where there is no evidence of age bias there's no evidence of retaliatory motive we have a plaintiff who has admitted to both to all of the discipline that to admit to engaging in the conduct for all the discipline for which she received she can't show anyone who is treated any differently than she i'm sorry if i indicated to the court somehow that it was the the n c it was the write up regarding the anesthesia care in the hip surgery that was written up and removed what you basically have though in that situation was proper care and basically was the quarterback that carried the terminations down the field with respect to the doctor make an issue this phone is testified there this illustrates why this case should not have been decided on summary disposition this fungus testified unequivocal a that doctor make and told her that the blood was in fact needed dr megan indicated i never told her that it's a question of fact as to what occurred here ms per ms fullness is testimony there was an indication of blood as needed it's also important to note that blood was ordered pre surgery the nics eola just they they they have a standing order for all the drugs that may be needed and one of them is blood so the blood is ready in the case in case blood has to be given so the way it works is blood was ordered for this procedure in terms of when it was actually given operated in a manner that was consistent with how mr schroeder said we operated consistent with how mr rapid a and another nurse said we do procedure and is until a who was a circulating nurse saw nothing odd unusual and assumed based upon what she heard what happened in the operating room that this was a normal procedure did dr schreck say to her get the blood no but that there's a question of fact this whether that in fact is how it's done and whether that is in fact a breach of policy nor the nurse c r ne has ever been disciplined for this type of event because they chose to use this event ms glinsky did as her means of getting even of circumstances the important point is that people give blood when it hasn't been ordered they give blood in the presence of the doctor and generally the doctor thinks it's inappropriate they stop it there the doctor is concentrating on the surgery he's not saying add this as you point out at this anesthesia do this whatever if the if they see anything what is appropriate she says blood should be ordered they type they match all this is going on in front of the surgeon and they day they assume that given the where some doctor had not agreed with it nothing happened i don't know i cannot i cannot add something to the record like ok thank you the only point is this is the straw that it's a question of fact as to whether ms flawless is age and her and her