she is an african american individual who was employed by the local one of the local hospital st joseph's candler and it's one of the larger employers in the county it pays well good benefits so it is an attractive place for people to be employed she was saved excellent recommendations in support of her application for a position with the hospital she's worked in the position like this for thirty are this is allison works at the bottom rung of the hospital employment hierarchy she is a patient care technician was she still performs this work but she was she would  clean up patients coming out of i c u who had soiled themselves she bathed them and that sort of thing when asked during her deposition the changing diapers has to be pretty bad yeah but that's part of the job to apply what about helping the patient void is that a fun part of the job it's ok says ms allison something i have to do cleaning soul patient that didn't bother you no not at all what's the best part of the job making sure that they're clean and presentable for the family ms allison makes twelve dollars an hour and she raises the flag when the family comes in and her patient is clean and presentable she's a hard worker she asks for more work she doesn't she never took she never left early from a shift she always asked for overtime never asked left early for a shift until this evening of october the  and they interacted on the night of october th and she called was gillingham call her the n word ms ellison was absolutely devastated she complained immediately up the chain of command st to her charge nurse then the house supervisor who is knowledge of her role as the fixer at the hospital she asked to go home and was allowed to do so and on her drive home the house supervisor calls her on the cell phone and excludes her from the workplace until further notice she made new she complained in her complaints to be clear she made specific complaint of the charging or specific client of complaint to the house supervisor that the n word was used and she was called this racial slur sixteen days later well that in two days later she goes to her supervisor the decision maker one more level up the chain of command mr winkler complains again specifically informing him of the use of the n word in the nature of the complaint and sixteen days later her employment was terminated she had no documented performance issues and indeed what was documented was favorable and it was favorable specifically for at least one of the targeted reasons for which she was terminated patient compliance the this is a retaliation case under the opposition clause of title seven  workplace she was excluded from the workplace michel's and works by the hour she don't work she didn't get paid she's excluded from the workplace within the hour she's terminated eighteen days later so she suffered those adverse actions and then there's the causative link between that complaint and the adverse action now there's a wrinkle in this case of course with the add the st element promise facia case which is that the complaint has to be about an unlawful employment practice and we've brief that thoroughly the i believe the defendants of not cross appealed to the district courts conclusion on that issue but we've briefed it and as i think the court knows under little versus united technologies and it quick course quoted racial derogatory remark by a coworker without more does not constitute an unlawful employment practice well there is more in this case and the district court pointed to  related one of the one of which is the complaints about this allison for a number of months to her supervisor the charge nurse about the racial prejudice of ms gillingham the coworker the other five by the district court was the virtually identical incident of one year earlier another patient can't character nation another african american called the same name by the same coworker the coworker nurse and it was known to every level of supervision charge nurse how supervisor director of the department but there's even more i'm going to make sure that we've got on the record and you understand there's even more that the district court could have pointed to in terms of developing this unlawful employment practice fact and wilson v farley this court and besides the importance gillingham the coworker who uttered the remark does have supervisory responsibilities over allison they're not extensive but if ms gillingham tells ms allison what to do she is required to do it and that's in the record ms ellison and littler and butler versus alabama department of transportation the complaints were eight months and three months later respectively known as ellis and went immediately same night she heard this comment from the coworker she went immediately to her supervisor so it's a it's unlikely little and butler and that kid in that respect let me try to help you focus on this can turn they gave to the legitimate reasons they said for terminating her is that correct yes ma'am and mine was the noncompliance with the coworker comp act and the other was a patient compliance script so and and those were documented to not be credible the the defendants in this case have raised the issue of honest belief patient complaints were allegedly made the defendant allegedly honest believe them honestly believe them to defend a supervisor decision maker but in that meeting to terminate ms allison the defendant the decision maker offers ms ellison a card with some business contacts and says here go find a job treating other patients the patient complaints border alleged patient complaints border own patient abuse and here the decision maker has referred ms allison to another company that serves patien and they're not only just patients in a hospital that have sums of supervisory oversight their patients that actually are at home alone and vulnerable to a an individual that might want to abuse them the district courts all right through that  honest belief there by mr winkler that these patient complaints actually existed  that she allegedly had getting along with her coworkers and her non adherence to whatever that was the i've never heard of anything like a code kind of an employment employee's code of conduct it's the catch all for whatever reason they would like to point to to have somebody terminated it's got every possible violation of workplace conduct but the one argument i want to get forward is that patient complaint justification for terminations has been had the rug pulled out from the hospital puts into place and the search the honest belief defense the district court says properly he could not have honest or a jury at least could reasonably believe that he did not honestly believe that a jury could honestly also honestly believe that mr winkler was for terminations a coworker compliance and ability to get along with others well that is the same individual asserting these co worker complaints inability to get along with others his credibility has been destroyed with respect to the st reason for termination counsel their briefs state that this case is not about the the altercation that happened on a top of the th we'd like to start with with this case is about it is about that altercation and the information that the decision makers learned  upon investigating that particular incident is about a delay in cleaning a patient who had a bowel movement in her bed the most humiliating thing that you can do and the argument that ensued between the nurse indeed amounted to the rationale for the determination how do we explain that at the time that winkler notified allison that she's being terminated he gives her is business card referring her to another hold care company that also worked closely with patients and when asked about her ability to perform this job which would require her to work alone with patients he testified that she was good with individuals just that she wasn't good as a team member tends to undermine the theory that he was shocked about her greed just relationship with with patients that he would say she's good worker here's my current go use it and get into our help you get another job does tend to undermine that explanation does it know the actual testimony of the says is he gave her a card to go be a sitter so he was asked what does the sitter do as you understand it at the time you referred her that would be a person that needed someone to stay at home with somebody during the daytime strictly one on one and when they do the things like clean up the person they're sitting for answer cook housekeeper pretty much totally give her the card in the st place because he's a nice person if you fire a law clerk or eat an associate you're going to say you might do better in house you might be to do better at a agency you might do better at a smaller firm or a larger firm that's human nature so what judge moore's decision does is put puts a chilling effect on supervisors and h r departments who already are going to say name rank and serial number when you give  references because you don't want get sued but they just because she didn't work well and he goes on to say your honor could housekeeper pretty much total care with emphasis on personal care or comma i misunderstood them to know that that's correct but what went there also testifies to is it wasn't past performance that he was concerned about it was her present and present performance there was she was yelling right liar liar down the down the hallway she told and she admitted and she put in the statement this kind of amorphous statement she put in the statement i told her i was not going to do any more work for her that night that goes to the coworker compact those are undisputed facts let me ask you this when will was asked in his deposition what the violations of the coworker compact war he simply said they were discussed in held at step assertion he didn't offer any himself right he said he said she identified every particular area but do you offer an explanation of self he did they are saying go look at that deposition you'll get your answer he did say that your honor he also put it if you put it into context he also said i've been gone for three years i'm no longer supervisor i don't remember this i did have a detailed discussion with held wrist before the meeting and she went through these coworker compact violations which i agreed with and i did look at helder as deposition and i gree with those reasons and i don't want to repeat as now because i may not say exactly the same thing that she said and there was no follow up from counsel on ok well hell just said this why do you think that was a violation of the coworker compact so if you i think if you put it the violations of the comey ask a slightly different thing we also have in the evidence here the incident regarding jenna jeanette mccann and what are we to make of that that's the one where allegedly a striking and the only thing on that administrative form that that mentioned anything about it was that she was terminated for violence in the workplace it does not so you would not have seen the discussion of what she alleged and so on and so forth that's correct and he testified and it's undisputed i know what he said because he said he didn't know anything about mckinnon right the incident was never reported to him while he was a director of critical care she had differen  is fired you have nothing to do with that firing the court sends you a piece of paper that says ok this person is now gone we're now going to hire somebody else it's an administrative paperwork from the codified something that had already been done by someone else that is correct that's what the change request forms is it has nothing to do with him making the decision in fact he was not the decision maker in addition they point to the e mails which he there somebody corroborated that or what is the status of the record so not to create an issue of fact that it was made by virtue of our testimony but i'm just curious for purposes of summary judgment we admitted that that she are what did they do about her complaint other than tar sixteen they sought her well they said they sat down with her judge hall and they tried to go through the incident and she refused she denied everything and she said she didn't do anything wrong and i thought he'd give her a whole community help me with this i thought to just to follow up on judge holds question i thought that they signed held with the task of obtaining statements and looking into this right correct your honor helder it's however never obtained any statement what happened in writing or is it just or there's no report it all back after she's asked to investigate and there is no report she gives these statements she goes through the statements and her investigation with mr winkler who made the decision determine who made the decision to to sit down and talk to mr ellison and confront her with these allegations and when this ellison denied them all she found he found that not to be credible investigation itself because that's a point that he were references in the highlights as suggesting that the reasons offered were pretext to the investigation  was not turned over to the human resources department was it was not correct your honor and it would be the defendant's policy to hand it over to human resources if indeed she had been placed on administrative leave right correct but she said the only issue was whether or not she was actually placed on administrative leave right and the record is actually pretty clear on that miss me with that because i thought there was a dispute over whether about whether being told not to come back to work until she had spoken with her manager constituted administratively if ok leslie jones been at the house supervisor so on the night shift the managers aren't there they have a house supervisor the house supervisor is in charge of the house as it sounds so if there's a confrontation and somebody wants to leave the house supervisor sa found out she said i had a headache right she didn't say the n word so i had a headache she let her go because the charge nurse said she's not going to do any work anyway my eyes were let her go she then finds out that it was this alter cation where she patients and then yelled liar liar and all those kind of things so the house supervisor calls her back and says look don't come back to work in til you talk to your nurse manager right there's an altercation they need to look at what went on ellison testifies she talked to the managers that next day she was not scheduled to work the next day and she she testified that she did not miss one shift in fact we know she didn't miss any shift because october the th she had more patient complaints against her the intervening events so she was never placed on administrative leave there 's no h r file about that there's nothing because winkler put her back to work pending the investigation she did not lose one penny there's no adverse employment action there as as they tried to allege claimed that she immediately went to charge nurse rebecca floyd and told her what gillingham had said does rebecca floyd testify in that she deny that that was ever said to her she does and then allison said she called the unit supervisor leslie jones bennett and also purportedly told her what killing him had said and asked to go home because her head hurt bennett also told her to go home does she leslie jones bennett confirmed that allison had told her that she does not she says it didn't happen said he called her back she went to meet him and she told him what killing him it said to her that's accurate i take it it's accurate that she talked to wink and related to winkler that that killing him mumbled a rational slur whereas the other two say she never even told them that the night before and it was do i have that right correct ok means i'm curious again i'm does the record reflect that the conduct that is the subject of patient compliance i'm not talking about when the complaint was made but the conduct itself was subsequent to october eleven or were these patient compliance and employee compliance to those pre date october there is a report on october the th post october clear so when they're investigating the incident that's when floyd and jones bennett talk about the compliance correct and i think judge moore said it correctly when you do investigate a situation like that you're going to find out about some of these things that's not unusual to find that out in this court isn't that right but the point is those incidents were not triggered before that they weren't presented before that they may have occurred before that but they were not they didn't surface percolator come to the attention of the boss and that's is that right that is correct and that's also kind of coworker nature right you're not going to understand that you're not going to start raising things unless there's thank you thank you at the october th want and those were addition those were the additional complaints reported by miss floyd during the investigation in an october th e mail prior to that page ten page eighteen it's not just pro forma signing a form by mr winkler to have this mckinnon terminated he is informed of the controversy on th floor south the night   and that there is a suggestion here and an inference of mendacity on the part of mr winkler and others that justifies a jury trial in this issue if you would look at his explanations of whether he heard a racial slur or not he's all over the place and whether he he may have heard something that sounded like a racial slur or maybe it was a racial slur or yes it was a racial slur i referred it with respect to allison that's what would happen if we go back to the district court can i there was one issue of whether this was whether there was a corroboration of the epithet which goes to your question here ms j d healy who's a young nurse who  was deposed early on came back came said yes the next day this was a buzz all over the floor everybody was talking about it on seven south the racial copters controversy and the conflict between the two of them so she didn't quite know how to manage the situation this young girl and she she testified that in fact there was that discussion there was that conflict