had like two in my short time for argument address an issue that we were not able to fully brief but i did alert the court to in our rule twenty j letter because the i was supreme court issued a  decision directly relevant to this case in june of this year after we'd fully submitted briefing in this case and that's the hawkins versus going out usual case in which the court set out the appropriate analytical framework and burdens of requires played a part on what the the other rulings that are relevant in the hawkins case not that go beyond just the causation standard motivating factor in clearing that up after haskin hop is that i will not use certain shifting framework of mcdonnell douglas in either retaliation or discrimination cases any longer that eliminates the requirement that a plaintiff or employing prove pre t which is the truth the summary judgment stage yes your honor it is so i noticed that in the defendant's letter they noted that there were different standards for summary judgment versus the different i was adopted what the majority of in fact the federal circuits next would have cases because the mixed mode of cases in federal court still apply are still available for discrimination if not i would disagree that there that they are still applying neck down douglas for the summary judgment perceiving if that is you know an open issue after  follow federal law law not state law on that particular issue so i don't believe that it's procedural i mean and i think that the and i'm not one hundred percent if i'm understanding if your question is do we apply the harken standard to this case since it was decided avlon about the summary judgment if if the application mcdonnell douglas summary judgment is procedural because it's tied up in the summary to it's a summary judgment standard that perhaps we apply federal law which is the a circuit standard and we don't apply and what i would have said and they have a civil rights act in hawkins is that the defendants in fact are going to carry the burden of proof to prove that and that and other that they otherwise would have reached the which you carry the burden of proof and so i think that if they the district court decided this under the idea that plaintiffs had to disprove the legitimate reason as part of their case in order to survive summary judgment and that's not in fact the law the defendants have to prove that they would have reached the same decision absent the retaliatory motive and they carry the burden of proof on that issue  well and as far as the specific facts of this case i mean i think that the issue of motivating factor important we think that the court also the district court also applied the wrong standard for determining what is an appropriate that they refuse to consider this negative employment review as i don't understand how that affects the retaliation play if the negative performance review was the only adverse action what would the remedy be so we think the primary but what difference does burlington northern versus white make other to to that analysis in this case it makes a difference because the court has held that such a short time period of three days raises a presumption of  the jury and that's what we're asking for is case would cases i mean your client created the temporal proximity by the timing of the o c complaint and we've talked we've talked about that before so i don't think that there's any evidence in the record that he filed the e e o c complaint in order to head off a negative review i mean i think that the evidence versus inference the defendant issue on what whether or not there was a retaliatory motive fact issue is whether or not they dr pepper prepared a negative review his st negative review in seventeen years of employment just three days after  the nondiscriminatory reason that the district court thought was sufficient to reach the pretext stage was the behavior at the meeting we're going to review was reviewed and review was unfair that he stated that it didn't accurately reflect his eye performance he asked to continue to have a human resources representative and that his supervisor agreeing that they would have a human resources representative present during the review and at they would continue the review so that's a fact issue there were two people present at that meeting and they have different versions as to what happened and the district court's reason for concluding that there was no fact issue w its conclusion that i tim couch refused to complete his review process and he testified to the contrary what would be the damages here suppose that we you know i what has it got to the burlington northern santa we don't it may be different in the way we approach it but my problem is if you got an unfavorable from interest you what it gets back to the remedy issue what are the damages here ciro i mean at least that i can identify so i think that under the burlington northern you can't consider each individual act separately that the negative and climate review i mean our position is that upon receipt of the e e o c complaint dr pepper set in motion giving him a negative employment review  suspending him and terminating him all as one afeard to retaliate him and at those three actions i think under the brewing to northern standard should be considered jointly in determining and ultimately led to his termination i mean our position is that sort of view was off for the purpose of the ultimate end which was terminating him thank you thank you agree that it is clear now under iowa law that the standard is motivating factor i disagree and i'm not sure i completely understood this a moment ago but i disagree that ran out of the box the burden is on the  notion that there is a motivating factor standard eliminates douglas of the summary judgment stage as your honor pointed out a moment ago we have this in not only in minnesota but in federal courts all over there mcdonnell douglas analysis of the summary judgment stage and the jury is never instructed on mcdonnell douglas the jury is instructed as to the appropriate factor in you know whatever that whatever the case may be retaliation motivating factor this issue has been raised since then with the i was supreme court and there's a footnote indicating that the summary judgment has not changed in that regard normally when the both sides agree on something we would just agree as well but this court can exactly my that's exactly my point and i think that's correct but i would also say this i don't think it matters what the standard is you can you can use motivating factors standard on both the titles have a claim and on the i will claim and you could even give us the burden of proof if you want to do that it doesn't matter because in this instance there is no evidence that the actions that dr pepper is the way we're referring to them in this case that dr pepper took had any thing to do with mr catches protected so as he was primarily mr cash was primarily in the warehouse he was also running the production floor whenever mr denny was at a conference or on vacation or out of out sick or whatever it was so that as is one backdrop the other backed up is this we're talking about an interim evaluation we're not talking about an actual evaluation and based on mr couch is own testimony an interim guy you ation is intended to tell employee where he or she stands and what they need to accomplish before the end of the year before the actual byatt or excuse me evaluation and so that's what we're talking about here and i think that's important for two reasons i think it's important when analyzing the question of whether or not this was material materially adverse using the language from burlington northern and i think it's important when you're looking at mr couch as behavior in that meeting we're talking about his supervisor who had just started not sure i'm saying that right the opposition case in two thousand and fourteen and what this court said at that time was that based on the supreme court's language in burlington northern a plaintiff must approve some kind of injury or harm and so we're still talking about a situation where anything that happens doesn't count as an adverse action in retaliation context is that the key though the end your arm of the reason why i ask that is because you you have the filing of the o c charge and three days later you have the  negative performance review in seventeen years that does not look good from an adverse inference perspective it could create a travel issue so does that of the pad i'm not saying there's no harm at this was a material well i think to fix st of all i believe mr couch created the reason for the negative evaluation in two ways st of all he filed the u s c charge right before she knew he was going to receive an interim evaluation whether or not he did that on purpose i don't know but it doesn't matter because his evaluate his media evaluations occurred every year in net out so that wasn't going to change but the other way he created it is by his behavior the behavior that was problematic didn't occur until after his most recent evaluation  march of two thousand and sixteen the in the incident with sandy hoagland where she reported that he gave her a dirty look and came in and told his what we now know was his wife you know if you don't if you don't think you can do this then we can get you out of it and then his subsequent behavior in that meeting with h r his subsequent behavior in the meeting with roger marine in july of two thousand and sixteen and his subsequent behavior in the meeting in august of two thousand and sixteen all of that occurred after his last evaluation and the last thing i think was whispered you're you're matching the performance review we can't consider that meeting because i didn't contribute to his actual requirements review i agree that comes in when you're looking at the termination i agree but the but the when he goes  to hit the human resources reading in april of two thousand and sixteen and again we're talking about somebody who is a high level manager in the plant who's dating a production level employee who goes in and makes another production employee feel like she's in so your story and it's supported by the evidence is that it had all of these these incidents that led to a negative performance review and i get that and their story is i filed the charge and three days later i received my st negative performance review  and seventeen years and so that potentially creates a triable issue on what reason was given for if we had some the negative performance review is in fact an adverse employment action doesn't that create a travel issue ike no i don't think it does because you look at the facts he doesn't dispute what he said in the april meeting he doesn't dispute what he said in the july meeting he he was not acting like a member of leadership in his very st meeting with his supervisor two weeks after his the nuclear winter started he sits down again will not even tell him whether he's married to a production line employee so if he wants someone to come in to take notes about his conversation with his  employer was doing what employers are supposed to do they were having a meeting with with their employees to tell them look here's the problems that we're seeing and here's what you need to do to correct it moving forward that's all they were doing despite the fact that  had these behavioral issues they were looking to fire in they were looking to sit down with him and talk about where we go from here so that he can correct things by the end of the year when the performance evaluation would matter and would affect his pay  and those kinds of things moving moving to that then in the meeting i agree with ms brown that there are two different stories about what happened in that meeting but for purposes of our motion we have assumed that what mr couch says happened happened and what he and he admits and everything that he points to in his briefing regarding what happened in that meeting in the e mail that roger marine that after the meeting and i went through that e mail with mr couch in his deposition and i asked him did you say this did you say this did you say that and he said yes in every instance he told again here we are six week actually that he didn't even get through the st page we're assuming for purposes of this motion that they got through three pages because that was mister mr catches testimony so that the  the point is this the facts and the timing when you look at that and the answer that law is very clear right i think i read twenty cases that say that timing alone is not sufficient you have to have something more than typing and in order to try to to show something more than timing mr couch has done a couple of things st of all he has misrepresented what the record says instead that mr mr marine misrepresented which we have which we've talked about but the other thing is he points to things like the timing we've talked about we've talked about timing and how that i it was simply a matter of circumstance that's when the major reviews are given  he also tried to say that his behavior concerned previous to that were not documented ok well if we had documented and we can see what that argument would have been but the real issue here is that roger bridget only started six weeks earlier she didn't come in and start writing him up what he did was try to talk to him and then brought him in for his when your evaluation again took to talk to him these these are people who had just taken over the plant mr murray who had been the plant manager for for years had passed  because he had never been his direct supervisor which he was on this issue and only then if i would anyone else that simply fact and not supported in the record so mr couch has tried to add the timing plus but it simply is simply not there and in the situations in the case law where where the courts did find a fact question there was something more than just the timing and  for example one of the cases cited is bassett versus the city of minneapolis in that case the plaintiff had engaged in problematic behavior prior to filing the charge then received and there simply isn't any evidence of retaliation regardless of which standard the court uses i appreciate your time thank you and i actually want to ask sort of a policeman or a question that's really bothering me is this interim performance review point you might have addressed it anyways but it gets back to my own point which i can't figure out whether the performance review is really an adverse employment action or burlington northern  best argument that it s so my best argument is of course that it has to be considered within the totality of the circumstances additionally i am couches testimony  was that they need your adverse employment review so was tied i mean the reason that he was upset was not only that it was of course the st negative review that he'd ever   objective analysis no here's the fact that a fellow that an employee under his supervision had complained that he was he was making it was made here feel like she was going to be punished so are the employment review process had an at this manufacturing facility has several objective measures which dr pepper concedes stack that tim couch performed well on all of locked in and so forth and so i should does it ever does that have a line that would measure or allow evaluation of that what i consider objective that aspect of performance but tends to be subject his yes you say he was he was objectively perfect it's because you you are you are characterizing is subjective some aspects that are regularly about you it i'm not saying that he was objectively perfect what i member of a five manager team and he was the only one that received a negative review and also the only one that filed a complaint some thank you thank you