case of retaliation you have protected activity or a adverse employment action and a causal connection between the two and the reason mcdonnell douglas exists is because it's well is an enormous social utility to having people come forward and disclose misconduct by other parties within a company that they're working for also in the discrimination context there's there's utility as well and so really the idea is that because it's hard for employees given their position and what happens to them as a result of their of their actions to prove their cases mcdonnell douglas burton relieves that mcdonald's douglas analysis release that burden from the pla s so that they can at least proceed to the jury and how the jury determined whether or not some behind it will have to have some evidence of the protective activity which includes a reasonable belief that there was something illegal going on yeah well yes you know i like a lot of the cases of said the people who are in a position to report these things are not lawyers so you don't have to you maybe don't have to cite a specific statute but it needs to be a reasonable belief that something illegal is going on i think that that's  that's that's a fair assessment of what the requirement is it sounds like the way that the courts develop this that you can have a gut feeling that something's improper if you have a gut feeling that having white lights i that something you could complain about and then have every television claim based on no because it's not illegal to have white lights unless something happens in the next legislative session but in this context you can have a feeling that something's  the fee waivers that might have been unfair but i thought actually read reagan said well not really illegal but it just didn't seem right so why is that a protected activity well to start with they're not contending that this was not illegal that it didn't violate a regulation their position is at least my understanding was that the plaintiff herself needed to have an understanding that what was going on was was wrong  was was actually legal that there was some sort of statutory violation or regulatory violation with respect and there wasn't but i wasn't with respect the few waivers yeah i'm at when i want to do is go through each of these because i think each one of them is rule or anything like that but it has to be some thing that's improper or illegal or get and that's true you know with respect to whether or not the few waivers are illegal there was an expert declaration  submitted with the moving papers in which the expert opined about the the relevant a political regulatory structure that would have me that illegal i it may be that that specific instance wasn't illegal ok well let's go to the nursing homes ok  so as in the other thing that you probably were going to get to is that if you get through all of these things you still need it has to have gone to someone or come to the attention of someone in the think that is there to assume that and then moved on and said but there was no knowledge by the decision makers well there was a language that she was going to assume that but then she actually conducted an analysis she she talked about what was being reported by the by the ms without deciding that point of so each raised a genuine issue of material fact as to the first element that would tell you right and then a paragraph later she actually decides it i think she just says something about how they don't need to have be able to  statutes which is what we said but she says i there's something about the the banking the issues that the plaintiffs regina finding as problematic don't easily align with a legal conclusion of understanding was that there wasn't that conduct that they were complaining about hadn't been communicated to the parties who ultimately made the hiring firing decision with respect to them you disagree that's why i'm here and that's why i'm  evidence with respect to single legend well so than the nursing home was actually something that rodriguez first not noticed and she should watch the evidence which tell me where i look in the record i know she's the one that reported it account being held by the nursing home were being managed by the nursing home and that email there's sort of a back and forth that goes on at some point that e mail is sent to sing la g because sing la g is rodriguez's direct supervisor he then for and it seems that you have you have two clients you have rodriguez this is rodriguez's main claim i think the nursing home issue yeah and i was trying to figure out whether in rodriguez's summary judgment papers she ever pointed to any evidence that hall knew about this because the only evidence i could find that hall knew about it came in i don't know how to say it so mr songe a lodge is papers so either rodriguez missed it or maybe you can point me to something where rodriguez incorporated scientology is papers but i wasn't sure that rodriguez had actually put forth any evidence in her papers that paul knew about this ok i at this point i couldn't tell you i could prepare something for you that's the problem with the briefing if there's a lot of this and not a lot of detail so first of all those stipulated facts and if you didn't point the district court to him i don't know the district court supposed to sort through the each of those if you don't say this is undisputed or at least it wasn't answered and i don't think we should have to do that so that that's really your obligation you will agree thing and argument you've got two clients and about seven or claims well let me take a step back because there's there's the direct there's actually multiple bases for drawing an inference that there's a causal link between the protected activity and and the ultimate firing that occurred the first one that we've been talking about now is this direct communication like did they actually have is there evidence that there was an actual direct communication between one of the three specifically hall and wilmoth decision makers and the plaintiffs so we set that aside there's actually three other grounds that we can look to to see causation the first one is the the discharge sheet that was prepared that spreadsheet that was there was prepared that that goes to pretext that doesn't that doesn't help you get to whether the decision makers knew about this protected activity we'll let you hear me out because i believe that it does and i believe this is breached in the papers and in this way so the idea is that you have a spreadsheet that for whatever reason has the plaintiff's names on it at the time of the spreadsheet initially generated bear with me and i'll get there at the time that the spreadsheet is initially generated both plaintiffs had only been working there for give you that it was what they said on the spreadsheet was false how do we know they didn't just write a false thing because they didn't like these people ok so the inference that could be drawn from this stems from the fact that whole testified that she talked to more and the two direct supervisors and as the court the district court points out and it's moving and it's order there's no dispute that those two the supply that information that's what hall testifies to she says i can't remember but if i were to if i were to include them i would have to talk to their direct supervisors more insecure so what you have is a situation where  at least depose these people and ask them why did you talk about these specific employees i mean it was very general yes i consulted them about who should be on the list but i mean i didn't even think that testimony was we talked about every single employee individually as i mean don't you need more than just there was some conversation some time about who should be on the list from a standpoint of putting on the elements of the mcdonnell douglas analysis of summary judgment stage i think there's a basis for an inference to be drawn that there's a causal connection between the two that because  just sort of stuck in this situation where lots of things might have happened but we don't know and so much of the argument seemed at the district court to be based on this well most likely because if this person is in this relation to that person you can infer that they must have had this communication back and forth with each other so now you're saying well there's direct evidence well so you have shifting gears from what the district court was focused on but it's based on the evidence that was in front of the district court and so i do you let me start with this there's kind of a long list of facts disputed undisputed center in your view do you have an obligation as the moving party to point in the in light of the massive record to point the district court to the disputed or undisputed facts that would fit into your theory yes and the district court actually recited most of those facts and its decision i mean the this record acknowledged that saying that as she testified that he had talked to hole and conveyed this information her she has a footnote in her in her order where she can see as much as she wants so i think that's true as to as i can trace all of this to the specific testimony that is true as to the security concerns about the bank but then we have a question of whether those concerns were reasonable whether there's any reason to think there was anything illegal about not having a camera in the vault and i can't find anything that tells us that was a reasonable concern about illegality be that as may there was also there was also a testimony cited or at least there is evidence cited by the court about the role of more in connection with making the spreadsheet there's also testimony that cited by the court in its order about more playing a role in moving this the reprimand letter through with respect to rodriguez  that's the that's the third base is there's actually a fourth basis which is the temporal one all of which show a causal connection and i want to take a step back really quickly here because i see the concern that the court has with the protect the how the trial counsel presented this to the district court and the way that the evidence was marshaled but then also how it's presented to us i mean in our in the briefing here there are all these general statements about plaintiffs generally and then we have to figure out well ok which one these are two people with two motions and and much of your many of your citations did not actually have support when you read the testimony that you were citing so we've had a real struggle to try to figure out what is the factual basis for these claims well i think if we look at the court's order there's sufficient evidence in the order itself and then a five by the court to find that there's there's a basis for inferring causation the fact that the court cites to the discharge the reduction of force spreadsheet and the more insidious the played a role in that the more  insecure played a role in issuing a reprimand letter to rodriguez and that there was and i don't have the order in front of me but there was some other evidence with respect to rodriguez reporting stuff to hall that  warnings in the files of employees were there other employees besides rodriguez that got terminated with that as a basis i can't answer that question definitively i do know that there's testimony that if somebody had a reprimand letter in their file that those people were automatically put on the list that's my recollection that would help if there were if we knew the evidence because let's say there were other people who had that written reprimand order but they didn't get terminated but she did and that would seem to me to potentially raise that inference are you talking about that she got singled out but i couldn't figure out if any other ended up the same as her or different then right my understanding is there anything can you point me in the record where it's answered at this moment i can i could i could go back to my brief and submit a letter to the court trying to den of five supporting evidence in this fact i mean i my understanding is the record contains evidence that employees who are similarly situated with with rodriguez and single dog she had not been there long enough to have a value value look to bowl  materials were not included on the list and so these are people that didn't have a reprimand letter issued to them but hadn't also had not been there long enough to have some sort of the criteria for evaluating their performance in front of the panel as well and those people were not included on the list initially you know or have any evidence of people who are either included on the list or later terminated but who also had a warning letter in their file that i don't know that i can answer at this point and i am i right that the two plaintiffs did not incorporate each other's pleadings by reference somewhere that i missed on the record here i can't answer that question this point and i'm not sure right the bonus thank you thank you think your honor may please the court true or on behalf of the police to answer the question that you just asked your honor page six of our brief which refers to page sixteen ninety four the record no break manager or  branch manager who had a written warning or final warning on file was retained by the bank so there were none i don't know how many that isn't the records pretty sparse on those sort of things but it does rather emphatically say that no one who had a reprimand in the file was retained by the bank so there's no disparate treatment there so then you have the situation with someone receiving the lowest warning or the lowest gives me the lowest criteria right and i guess the person with the lowest criteria means there's just one of those right and one low there's only one person who's lower than the lowest but the question then is well if that's a criteria that was created after the so called not a fit criteria does that raise some friends that that criteria was targeted and said you l evidence that the decision makers had knowledge of protected activity then and this weren't criteria that were being put together to let forty employees go and that somehow they manipulated the criteria that lets forty employees go just to get out this one because he didn't happen to have a written reprimand in his file if  that could be believed and then possibly but i think it's really worth drilling down here on what was argued below and why and it wasn't an oversight that these direct links were not raised that complained about the bank's security and hall knew about those complaints absolutely this is the placement of security cameras yes and so so is your response to that that those are not that wasn't illegal and it's not reasonable to think it was illegal my response to that is but the response to a number of the ways that these were litigated in they all fit into the same legal box in my view so the reason that there was a focus by the pla the complaints to the supervisors rather than the decision makers below was because those communications actually have enough content that you could arguably say that the supervisors were receiving information that  reasonable person would think was illegal once you peel off the communications just with the supervisors and now we're just talking about communications with the decision makers here's how it looks an e mail or a conversation that says by the way i think the security cameras aren't located in the right spot ok we'll send send someone to take care of that and they do that once we're peeling off the supervisors and it's just these few little threads that only come up on appeal of what the decision makers knew there's not even a plausible argument that it could have reasonably be understood to be protected activity and why because it wasn't reasonable to think it was illegal i haven't understood your answer well number one it was a reasonable to think it was an illegal number two it wasn't reasonable to think that was being reported as illegal it was just a concern about where the placement of the cameras were and that was never brought to the attention of the district court and i think it's worth reviewing the district court transcript because the district court comes out and says here's the way i understand the briefing your argument is that moore spoke with paul and therefore there's a causal link there the district court though pointed out the problem with that which is why there was a pivot in the hearing and now a pivot on appeal record twenty one more didn't quote didn't know anything about the reduction in force until september so if he didn't know there was going to be a reduction in force and the district court comes out and says you've conceded this right on the transcript plaintiff's counsel doesn't get up and say oh no we didn't more didn't know until september also one ninety three not through ninety six the record more didn't know until september he couldn't have been arguing or sending information to make sure that these two get fired if he doesn't know he's being asked for the purpose of getting them fired so what's the pivot in the hearing the pivot in the hearing is well now he may not understand that but he's he's just doesn't like them because of it so he's giving poor verbal reports and it feeds into something he does know what's going on the district court rejects this so now we come up on appeal during that hearing and in the papers it is never pointed out that you can get a causal connection because of any kind of direct communications and there's a good reason for that because if you look at the direct communications with the decision makers and what they actually know it is so sparse you can't possibly get notice of protected activity as opposed to just general employee complaining also it doesn't make any sense because at that point you're not talking to the person in charge of the l a branch you're talking to someone else about hey i think our security cameras need to be in a different spot ok listen if someone doesn't that depend on the content of what is said so i mean if someone says i'm trying to think of what it would clearly be illegal at a bank but i mean if someone says you know my complaint is that people are putting money in their pockets and leaving the bank well you know all the employers are stealing money from the bank then isn't it i mean just on the face of it that that would be a complaint about some kind of illegal activity right so i don't know that the fact that it's just a statement to a high up supervisor itself is a response it has to be about like whether you would reasonably assume from what was said that it was illegal absolutely and so seven zero six zero so i think we're kind of back to make how do we know that a concern about where these cameras were in the bank wasn't a reasonable legal concern well you have to look at what the evidence of what hall knew and decide whether that puts her on notice that these are complaints about productive activity in such a way that a jury could make a reasonable inference that that report about security camera placement led her to manipulate the matrix to fire forty different employees and to rig it so that this person would be included in the firings a jury has to conclude that you look at seven o six and it's really just us included that they included him because of this saga hodgy that's right that's right they include that that the matrix there's no argument here that the criteria weren't applied the argument is that there was a manipulation of the criteria so that it would ensnare him at page seven zero six of the record is the entirety did he ever come to you with complaints about the auto body shop no did he ever come to you with complaints about security equipment mean the branch didn't have the right cameras that i don't know if i heard from him but i know that our security officer he heard from him about these concerns ok and that potentially we didn't have cameras in the vault maybe ok and that was addressed by security yes  discussion that is not a report of protected activity i would urge the court to look also at the e mail that is cited over and over again in the briefs from misrata has it's at ninety six and ninety seven the record talking about whistle blowing and things of that if you look at that e mail that e mail is she's defending herself or getting reprimanded for using her cell phone during a meeting it doesn't have anything to do with reporting protected activity so what the district court is told the district court is told that the only way that we can make this link is from discussions between hall and more and the district court says well that's not going to help rodriguez because rodriguez concedes that she never complained once the more he was leaving her supervisor in that way what else is the problem that trial council knows which is why it's argued the way it's argued down below one fourteen in two seventy the record mr sangma logic says quote i did not elevate any of my complaints to management above miss augusta and mr mo quote that's from his own declaration and so there's a perfectly good reason why trial counsel focuses on the link between moore and hall to be able to get the causal inference and the reason for that is the only complaints that could even plausibly put somebody on notice that there is protected activity go to the supervisors not the decision makers and so they need that link they have statements like this from one plaintiff saying i never raised my  complaints above it rodriguez has a problem because her supervisor is not more and he's the one that supposedly had these conversations with hall and the other really big problem that the district court pointed out was the more didn't know they didn't there were going to be layoffs until september and so that's why there's a pivot on appeal and all of this evidence that yes it's somewhere in the voluminous record agreed is somewhere in the voluminous summary judgment record but there are specific sections in brief after brief after brief the facts are broken down this way and the arguments are broken down this way now we're going to talk about causation now we're going to talk about what's your evidence about causation what's your argument as to causation in those sections none of this evidence appears the and there's a reason that one specific thing if we take these this testimony at seven o three to seven o nine ish that you've referred to there is one area with respect to the nursing homes that's referenced in there and that is a complaint from rodriguez that as i understand it hall became aware of according to seven zero nine zero zero not sure how it came up with it was through well month or whatever so then the question is do you agree that there is some evidence notice to haul on this nursing home issue and then what's the legal important that i i believe that there was notice of generically put the nursing home issue because there's certainly an e mail that hit her inbox but the question is just like with the security cameras how was it conveyed and if you look at seven o nine of halls of the record which is hall's page one seventeen of hall's deposition here here's the entirety of it i didn't know about that complaint but my understanding is the complaint came to cindy will move jackie rodriguez and when you say it was a complaint what do you mean it was an e mail i believe there was an e mail about those accounts lacking documentation i believe so ok did it bother you that she raised an issue about how a customer to open an account for these residents know i think that if i'm correct calling correctly that was when the issue or that concern was raised that we'll move to involve her compliance or audit person i can't remember her title she look into it was taken seriously and looked into that's a normal e mail that's what supervisors are supposed to do is to but how does it tell us i mean if the content of that was i think people are opening accounts and stealing money from these nursing home residents if that's the gist of the concern then how do why did what you just read not show that hall knew that rodriguez had complained about a concern about illegal activity your honor if that's the gist of that concern if being told that there is a lack of documentation within an open account if the gist of that when somebody pays it is a different problem is that these depositions never got into any specific so i mean so why wasn't there so she says her concern was that the residents were being defrauded then there's this vague testimony the whole knew about the concern why isn't that enough to have when inferences are taken in the plaintiff's favor some dispute about whether hall knew about a real legal concern here well if she did then it's with regard to that now and then even once you get there rodriguez isn't the one with a matrix that's our that is allegedly being manipulated to make sure that she's gone rodriguez is someone who y everybody really situated is gone because she was a pup written reprimand but she didn't have the written reprimand at the time she was put on the list but your honor as the as the judge pointed out at the end read i mean in the transcript he's very clear about this because there's a shift during that hearing as well to talk about the reprimand that came in august and other e mails that were sent in august and the judge says you just told me that the decision makers had already decided that these two weren't going to be retained in june so how in the world does anything that happens after that with regard to more not the decision makers with regard to more and so gossip how does any of that have anything to do with the causal relationship here no explanation but ok we just had a moment earlier where we just talked about hall knowing about the concern about the nursing home that gives you a causal relationship right there is time there's knowledge that clip precedent in time and knowledge so now so now it's separately talking about pretext i don't understand how how it's not pretextual to blame it on some it hasn't happened yet are you have to keep the actors distinct if paul is the one that put the reprimand in rodriguez's file i agree if hall is the one that tells no nobody to do it but ok paula say hall puts her on the list in june and now the company's explanation for why she was put on the list in june is that she got a reprimand in august how does that make any sense that doesn't make any sense ok so what is the explanation i actually got to listen plant we don't necessarily agree with plan of syria just these plaintiffs theory and what is your theory what is the defendant's explanation for why she was put on the list in june there is in looking at this record what happens is people are tasked with putting it on their list to get rid of forty employees not to putting together forty employees fear going out who's going to fit in the bank eliminates two positions and turns it into one and they're going to refocus on commercial lending who is best equipped to fill those positions we're going to have to get rid of forty people the people tasked with that and putting together that matrix and seeing who's going to stay and who's going to go three years later didn't remember why a plenary list three months earlier was written the way that it was written and the record reflects only that and the explanation is we don't know what your definition that you offered was you got this reprimanded august well in september that see explanation because in september you actually have the finalized criteria up with a name but that was the district court asked plaintiff's counsel that to and he said i don't know because he didn't get it out in discovery that came up at the hearing as well it's not or a fury your hon internally inconsistent according to the judge if you can do you have evidence that there are people on the list in june who weren't fired in september you know no one has evidence one way or the other about that they didn't get any of that in discovery and let's think about it i mean the thing that plaintiff's counsel kept saying at the hearing but isn't that something you should tell us i mean why isn't that part of the defendant's explanation because if their list is made in june and they're fired in september and there's no evidence that not everyone that the list didn't just stay the same then this whole august reprimand thing is very suspect but my understanding from the record is that it didn't stay the same but nobody can has a document that says here's the people that were on it here and what is the on the record that it didn't stay the same the fact that they kept working on it and and came up with different criteria along the way that is the only thing that's there is that they didn't make the decision then and they kept working on it and you don't keep working on it it may be that and i have a happenstance the exact same people stayed on it i don't know the answer to that and neither did counsel at the hearing and i just want to point out very quickly that the fact that these aren't protected activity reports explains why you don't have a whole bunch of e mails about the plain at the hearing below wanted to make a big deal about the absence of evidence gives rise to this inference well it gives rise to the inference if what you have is i'm making a complaint at the e e o c and then  up the food chain and you have something like that and then all of a sudden in discovery a year later the company says we have nothing we never discussed this we didn't care about it that's absurd but the fact that you got an e mail that a security camera should be in a different place and there's not something linking it to how a matrix was put together to get rid of forty people that's not an inference that it's completely understandable way to run a business and they didn't know that this was going to turn into litigation when they were putting together this matrix when they were deciding which forty people not to were going to be fired and so this record makes perfect sense thank you your thank you your honor would you give back a minute please court but they control the evidence and they control the information with respect to hiring and firing decisions they're trying it in through counsel's argument he's sort of having his cake and eating it too he's saying hey rodriguez was included on the list in june and she was going to be fired but by the way we didn't come up a selection criteria until sometime around september and so we didn't necessarily fire her for the reasons we originally put her on the lips which begs the question why was she on the list why was she on the list in the first place and there's no answer there's no answer because they control the information and are our position as the employee is to create just enough of an inference to get past a prima facia showing we're not saying necessarily that the jury will agree with us but we're saying is there enough to get to the burden shift so that they're in the position to have to have to show this was a non pretexting i mean case that tells us we should look at rodriguez's co plaintiff's papers to figure out whether that didn't was presented to the district court to support her motion i don't i know the district court sort of treated the body of evidence in its order with respect to both plaintiffs and i paused as the court that i can't i can't cite to whether or not that the respective parties incorporated their briefings and materials  but with respect to how the court analyzed it and the information that was in front of the court at the time the court was looking at this information to me these determinations so i can try and find something for the court of the court is interested in a letter brief otherwise thank you thank you thank both counsel for the argument this morning the case just argued is submitted