the morning may please the court met frank on behalf of summary judgment was improper in this case because there is a genuine issue of material fact regarding the factors that played a role in mr warbles terminations under the his protected activity was a motivating factor in his term nation  doesn't need to be the factor you know maybe a factor the principal got to share with the co more likely than not motivated the decision right by the look ponte minnesota supreme court case in seventeen and the graph there mcgraw whatever it is in ninety three that that is correct yes on the ultimate issue right on the ultimate issue of causation you have to show that it was a motivating factor and to be a motive to i believe it more likely than not motivated correct you know like so the burden of proof is that it more likely than not was a motivating factor the typical jury instruction that is in the subjects for the state of minnesota  nine one one call played a role in his terminations because the answer is yes the court must reverse as set forth in our briefs there are several facts that support this conclusion but i'd like to begin by focusing on one particular fact which i believe is the most important fact and has ramifications for some of the others that fact is director debbie hobbes warbled you will recall worked at a job corps center in minnesota which is a federal campus that is for troubled youth at attempts to help them work their way into the job force many of these campuses are run by private companies like the defendant mine act decided that she was going to remove him from service suspend him without pay and vesta gave him and then ultimately less than three weeks later terminate mr worm excuse me mr employment of the bases for her doing so was the allegation that mr warbled had refused her instruction to go help with the potential active shooter situation it is really important that the court understand that plaintiff's argument on this point is not simply that director hobbie was wrong that she got it wrong that she just didn't understand what was going on right the basis for her allegation she said was that mr warbled came into a stairwell as the active as the potential active shooter incident was going on and she saw him and she said mr warbled you are one of our security officers please come help me with this situation and he looked at her and he said i'm sorry director hobby i don't want to go anywhere near a gun this honor and the reason it does not matter is because what this shows is that director hobby was cooking up reasons to get rid of mr warm and that is strong evidence of  and that she was fabricating reasons to get rid of him and a reasonable juror could infer from that that that it's evidence of retaliatory motive that the reason the director happy is making things up in order to get rid of mr  s a general proposition your honor i don't think that's our theory of the case then why was your theory as to why she's upset that he notified the police as we argue in our briefs your honor the mine act the company that was managing the campus was in jeopardy of losing its contract to do so it did in fact lose its contract to do so a few months after this incident and director happy in her deposition testimony blamed the active shooter incident for being one of the key reasons why it lost the contract so when the active shooter incident happened initially director happy wanted to make sure that everybody was ok and calm everybody down but as the day wore on she was inundated with concerns of complaints from parents and families of the students and concerns and complaints from the surrounding neighborhood which had had a history of problems relating with the school i don't know if you go on this question or not the question was i made was calling the police and i asked whether your theory was she was upset with him for calling the police you said no so i don't understand what the theories of the case but perhaps i misspoke your honor we believe our theory of and i don't understand i want to sort of make a distinction your honor between having a general rule that says we don't want people to call the police in situations like this and what have been after the fact which is that director hopper he was in was attempting to do crisis management and they needed a scapegoat to blame the active shooter incident on and they found that scapegoat warbled well that that might be and be a scapegoat without it being related to him calling the police that that is true your honor but if you look at the the rest of the record  wasn't opposed to the police being contacted i'm having trouble following how your theory holds together in that there was retaliation for him calling the police that she wanted somebody else to call the police and just not cases you have a situation where somebody has done something which on the surface looks like a good thing they've opposed illegal conduct they've opposed discrimination or harassment and very often most often employers will have policies in their handbooks that say do these types of things call nine one one in these sorts of situations right the problem is that here as a result of mr warm calling nine one one the  that they decided that they needed a scapegoat to blame this on in order to keep their contract and i think we're back to what the discord says is a nonsensical theory that you're pursuing because you're saying honor these are your honour's raising and relation to the district court is that there's this common sense intuition that nobody would want to fire somebody who just called nine one one that makes sense until you understand that the decision was made after the fact not before in order to manage a crisis and in order to save the contract and when you look at the totality of the evidence what you see is director  fabricated reasons to get rid of mr warbled director happy treated him differently than everybody else who did not call nine one one and didn't go after people who engaged in  who were part of a supposedly negligent search in other words claim is based on a theory that he was terminated because he called nine one one to report a student with a gun on the center's campus this illogical theory defies all reasonable notions of common sense and most importantly i completely unsupported by the record evidence in this case mr frank just spent a large part of his time talking about this theory and also the reasons for mr warbles terminations claiming that they were somehow fabricated what he didn't provide to your hasn't provided to you yet is the evidence that he actually needs to present to defeat summary judgment in this case and that's evidence showing that mine at harvard any man animists whatsoever against mr normal because he called nine one one and wait wait an perhaps maybe misstated the standard here as we as you talked of mr frank and i was going towards the causation piece here of what he has to show in order to prove his case that the nine one one call more likely than not motivated the discharge decision and that me where minnesota supreme court talks about judge collins expressing better than i can what what where i think the key is usually in these it says on a camera or some such words that imply motif and the barenaked language here doesn't that's correct your honor however in terms of looking at the causation of this issue i think minnesota cases have been clear as well as the district court here that there has to be a retaliatory motive or impermissible reason for the discharge and all i'm asking for is authority for that what's your best authority about a retaliatory motive as opposed to just kind of happened so the  a but for requirement so so i think that's the causation question that's coming up here and i think the minnesota supreme court has said that the causation standard is whether the protected activity more than likely than not  motivated the discharge decision and that's the issue that's partially before the court that mr frank contends was wrongly decided in summary judgment below so if i could i'd like to address the nine one one call all the evidence related to the nine one one issue and this is all undisputed evidence in the record there are numerous mine act policies and guidelines that clearly state employees should call nine one one to report any dangerous  old as a security officer was the responsible reporting source for safety issues and had a duty himself to call nine one one that's in his job description mr wardle had called nine one one on three previous occasions and was never disciplined or face any adverse consequences for doing so in fact there is no evidence that any employees who called nine one one at my neck had ever been disciplined or face any adverse consequences for doing so now during the incident when the alleged bad actor in this case when she was first informed that there was a student with a gun on center the first thing she said was have the policeman call it's clear that she wanted the police to be called that day moreover two separate employees on two separate occasions instructed mr warbled to call nine one one during the incident that was mr ammons and mr or the lawyer they both instructed him to call nine one one during the assembly as the pedal pointed out  ms happy in fact thanked the security personnel for doing what they were supposed to do that day after the incident took place and calling the police and making sure they got there so quickly all of this undisputed evidence the rails mr warbles theory so let's talk about this theory that the district court call that a far fetched theory and i believe that's correct and that's why this court should affirm summary judgment so mr wardle paints miss hot be here as the villain who was looking for someone to for the gun incident and their theory is that she was looking for someone to blame and she found the scapegoat and mr warren will now even if that's true even if she was looking for someone to blame i think as you pointed out that was the correct person one of the correct maybe maybe one of or the correct person to blame is because he was involved in that negligence search the night before involving the marijuana smallman students room that could have and should have caught but not  cause a search for a gun so he there was he was reported it was reported to him by n r a two separate areas i believe that a student appeared high and the smell of marijuana in the room mr warm bold goes up to the  room he smells what he said he smell smoke what happened i just don't understand why you say it was a report of marijuana smell therefore he should have found a gun are you just saying he should have stumbled upon the gun when looking for marijuana that the search before however what happened was he should have done a targeted search he had he admitted he did or marijuana that's correct he should have been targeted search for marijuana which was contraband and under the the policies we didn't learn about the facts related to this negligent search the night before mr warbles engaged and until after the police were called she what happened was she realized that the police said that there was a spent bullet in one of the bullets missing from the chamber of the gun so she immediately thinks we need to find out if that bullet was spent on campus you know mr wardle can you go see if there was a bullet hole or somewhere in the in the room so he goes there he reports back to where yes i found a bullet hole however it didn't penetrate the door it didn't go all the way through and then she thinks will were you involved in the search the night before he says yes she says what happened and he explained sort of well we just did a general of vision a visual search we observes that in fact that the bullet hole had actually gone all the way through the door contrary to mr what mr warren will had reported and that there were dressers under the bed so there was no way he could have searched under the back and these are the main reasons why m ealey ended up deciding to terminate mr warm and that's something that mr frank didn't mention is that miss happy was not the decision maker in this case would you agree that these recommendations certainly played a role in the decision right it played a role because she was the one that had the facts and she was reporting them to miss you however if you look very closely the record evidence you'll see that this was by no means a rubber stamp this is not trying to  the decision by going above miss hobby what happened here was an independent objective thorough investigation by mysie only where she had first upon a reviewing all the evidence and gathering all the statements she even says look i'm not sure if there's enough here to justify terminations and so she takes it upon herself to go back understand more thoroughly about search one what went into that why it was such a negligent search why it was problematic  farewell conversation you left that out the that was listed in every document as one of the reasons that you skipped over that and i really so this because you're concerned that there's a factual dispute about that no i'm not concerned about that your hon think the district court was right in terms of it may be effective but it's not material to this case and that's because there were two other reasons proffered and miss ellie herself even stated in her deposition that that stairwell incident she gave a little weight to that when determining whether or not to terminate mr warm i'd also point out the that he would have been terminated regardless of the stairwell incident i don't believe she stated those exact words in her deposition this it's not necessary your honor and that's because of prudence on the honest belief rule and that's what we've cited in our belief that as long as the employer has a good faith honest belief for the reasons for decide what the real reason was if there was evidence here any evidence that the nine one one call played more likely than not played a role in mr normal to discharge then yes but that's not what we have on this record there's there's if the facts were different if the facts if there was some statement that mishap he said to someone else old man i wish we didn't call the police or are you sure we really need to call the police just literally played a row you say it didn't motivated right that it did not motivated that's correct so it has to play a role supporting roles mickey mouse rules and small rules and i know the minnesota supreme court uses that language but you're going to hold on to motivated surely  right yes motivated is the standard but even if played a role was a standard i still don't think mr normal can meet that in this case what he has is a theory and the district court judge frank did a very good job of rooting out that theory and saying look there is no th not reasonable inference factual inferences that you can make on the record it's purely a theory with no evidence hard or circumstantial behind that theory mostly for the reasons that i've i say that the beginning about the nine one one calls and how there's no that there was no protected activity here because mr warbled engages part of his job duties then you get into the freelander decision if the if the panel chooses to go that far so briefly sum up no reasonable jury could find that mr warbles nine one one call was causally linked to his terminations my next reasons for terminations are supported by a good faith honest belief and they're entitled to warble has not offered sufficient evidence to call into question the accuracy of his good faith belief and my next reasons for terminations and he's offered no evidence to even suggest that mr nine one one call played any part in asian in fact it was to the contrary my neck encouraged and appreciated mr wimble to action and doing so as it was a key part of his role as a security officer because mr warbled failed to present evidence that he was retaliated against for and they include differential treatment of similarly situated employees and they include departures from customary practices this is not a direct evidence case counsel's argument to your honor's is essentially director happy to come out and say that she dislikes mr warble because he called nine one one but it's not our burden to demonstrate to you that for suspending investigating and firing mr warm bowl was that he did not help with the active shooter situation that is demonstrably false and the vast vast majority of the evidence suggests that director hobbes test testimony is contradicted directly by police reports where mr warren bold was on the other side of campus helping police officers meeting them and taking them in to help with the active shooter situation at the exact moment where he was supposedly in a stairwell director hobby in addition to that your honour's one of the other reasons was that he was involved in a negligent search council talked about  we there was a we there was a we who was doing the search nobody else who was involved in that search was even warned suspended investigated much less terminated for those reasons your hon