good morning may it please the court on the capital millions of the half of the plaintiff appellant beverly hawkins your honour's the crux of the reason why we're here today is simply because the district court improperly weighed the credibility of the evidence presented summary judgment and granted summary judgment in favor of southwestern bell the court incorrectly resolved factual dispute and ultimately sat in the shoes of a reasonable juror here some quotes from the district court's o summary judgment quote the facts show that hawkins was simply a bad employee he in quote whether she was a bad employee is a material fact issue for a juror to decide not the court another quote in the opinion hawkins referring to was she lied about falsifying the court excuse document that was to admit it when she returned to work that the ultimate document that they placed her on the decision making lever the  probation port that's what we believe that the court was referring to when they said that she lied and ultimately that the fact is you know it it wouldn't be i mean maybe you'd agree or not it wouldn't be enough just to show that there wasn't a problem with the court that the excuse right we need to find it eighteen to didn't have a good faith belief you know in the in the validity of the excuse right isn't that right that's  correct so so where's the evidence that shows that eighteen to you may not have had a good food in other words it looked at the form and it kind of used that as a pretext right so you're on it we presented several we presented both direct and circumstantial evidence that she was placed on d m l for a violation of the code of business conduct but stricken through that and handwriting of her managers said should state customer mistreat or ship state pacification of evidence your honor we believe that that was direct evidence that the reason the stated reason was ultimately pretext i don't understand their that seems to be confirming what i don't understand that references the change in reasoning in attempts to correct the fact that the change in reasoning should have been different by stating should state falsification of records they fix their form but that doesn't mean that they didn't have a good doesn't really matter if that's accurate or not it just matters whether or not the employer had a good faith belief i am not even sure it matters about that because there were other there were other independent reasons why she was terminated i'm saying that maybe there was a maybe an answer confusing to of cation in fact they were fixing the record to indicate that that was the reason well your honor we argue that the handwritten note proves that bill's proper justification for her terminations is found in unworthy of creative writing isn't the reason for this terminations not that she falsified the excuse the reason for the term in nation is that she has to poor customer interactions isn't that correct those are those are the she was on probation but the term a nation event was the two poor customer interactions that is correct even however we argue that the d m l was the vehicle that facilitated her untimely terminations but that had to pull previous too bad interactions they didn't get fired in order to show that that was pretax have to come up with to compare and i mean perhaps not to compare you have to come up with some there would show that you could have two bad interactions and that normally you wouldn't be fired will your honor that was another issue for us was our discovery or discovery abused in our last attempt to discover relevant information about the case we requested additional discovery each requesting performance evaluations and disciplinary actions for several newly identified employees or you get to the discovery dispute as do you do you agree though that you you needed to be able to show that someone would not be terminated regardless of whether they were on probation for two customer interactions yes i do your honor and i believe that the discovery would have shown that however we were able to get it ok well that's act let's talk about that and if you don't mind what can you give us that maybe they want to ask questions about the context but the discovery didn't they didn't they produce discovery back in january or early in the spring that is clicked on a hockey as did identify several compared to wars in which the district court ordered for us to receive you know very information about them however after mrs hutchinson's deposition that was the manager after her deposition we asked for additional information regarding for example the stack rankings reports her salary and commission information and about i people who had had a certain port on them which is not the same type of customer complaint that we're talking about but it is it is come of a coma culmination of those kinds of complaints no you know that's that's not my understanding of what they did with aig so what they did was they produced employee files some of them outside of the relevant time periods for the compare turns that hawkin noticed once we got that information we then had the deposition of mrs hutchinson from that deposition we received other information we got other information and told the court listen judge we need additional information about these people this is how this information came about and we believe we should be entitled to that and wasn't in the deposition because miss the boss's deposition doesn't mention these other people it was a document that was produced it's just a summary document in that right i believe it was the stack of lincoln's report that you're referring to these other names isn't it yes your honor that is correct that's where we got those rankings report the stack stack rankings report which basically showed how other people on hawkin's team compared how much they sold excedrin cetera so that's how we can identify those other compared to years after we identified then we would back to the court in writing in during in chamber conferences to say listen we meet this additional to criteria help hayward held the same position as hawkins which was the service representative he was managed by hood to incent famous hawkins and for the two thousand and thirteen performance here hay or to cumulated zero absences under the  length he accumulated two absences under the illness and was not required to bring a work excuse back to work the following day after his absence during two thousand and fourteen hayward took not they were why he was fired or not for having bad customer complaints the fact that he didn't have to bring an excuse excuse thing is ten ginger what is it issue is whether there are customer complaints and you didn't get fired  that treated more favorably in acim it has to be in the reason that she was terminated this year and was terminated for bad customer reports missing work and bad customer reports are two denied that information ok i just were denied that information when you asked for it on the after the summary judgment motion was filed on that very same day those of us who are it until the time the summary judgment was filed did you know i believe that that was the nd discovery motion that you're referring to this is the st discovery motion that we filed we found several throughout the course before we got to dispositive motion of the st the st discovery motion that we we asked for specifically for jamie hayward's comparative file i mean during the relevant time period because one of the other issues that we had with bill was that they produce these employee files but they were outside of the relevant time period we judgment you ask for and were denied to me what is that correct that is correct and that on these other people off the stack list that was not until the day of summary judgment was it yes your honor we did ask for a  for me why do the district court a beauty his discretion in denying the discovery that you thought  a genuine issue of material fact that existed already because of the submission of conflicting affidavits we had the affidavit from bell that stated that misled to think that one thing and we had our affidavit they stated that mr johnson said another thing there was no reason for the court to preclude us from taking a deposition so you're saying the fact that your client was on probation made the two complaints against her like the last straw the final straw you couldn't have any l is the thing that we want for this court to look at that that's the ultimate point of contention in the case so if they believe that she would have been terminated regardless with those problems  what would you say to that i would say that that would be a good bells progressive discipline policy there depressive discipline policies that you're not terminated for your st infraction secondly the nd i'm sorry we're out of time but the nd the nd motion for discoverable evidence that we filed with the court we identified some parent or is that had gotten crist scores below the standard and had not been terminated so we know position thank you haywood was identified back in april of two thousand and eighteen only complied with the district or court's order by providing information about mr haywood so mr hayward isn't a late discovery issue in position as the plaintiff has the same supervisor is the plaintiffs the most important for this case has the same violation history as this plane death and we keep hearing about mr heywood's leaves of absence is in his not in the union had to come back with a work excuse that's relevant the question for it to make him a proper compared her is does he have a similar violation history was he egregious people that are on the the the step list the list that was a yes he took the deposition those that might contain compared to others well what happen your honor is that ms hutchens deposition was taken on june low what we call credit scores which i'm not sure with the acronym stands for but it's customer surveys that are taken after a call and so that request was made by the plaintive on june july th there was a there's no question about whether we complied with that order or not and then ms hawkins waits until april th we weeks later to ask for additional information i'm sorry august th august th is a critical date because that's the date that judge she is also specified as the date that we could follow our motion for summary judgment we've never heard an explanation as to why there was just three week period but we had already provided information about the request on august th to what you had already produced in july and that it identified two new attention compared to years back in april of two thousand and eighteen  hawkins identified seven potential compared to hers nash's guy a new list of potential compared to ours and so that's the difference on the compare chair issue or the comparatives being produced by your client or the end of their quire are the f m o i climb that's an excellent question your honor i think one of the problems with the way that this case has been presented by the plaintive note is respect taken his that she started off with five causes of action and her discovery doesn't really match up you know zip discovery doesn't need to have to say what i need the information for now where we are is that we moved for summary judgment on her just ability to skim a disconnect discrimination claim april two thousand and thirteen and the adverse employment decisions because it was too long of a gap period now on the compared to the issue in the f m like context cases are but then we also said for each of those claims as soon as she can she cannot articulate a legitimate reason for making the adverse employment decisions that we make so in answer to your question  evidence our legitimate articulated reason for taking the employment action that we took and the reasons that you would point to our customer complaint issue the failure to deal with the saying we had legitimate reasons for each of those decisions for the probation we had a good faith belief that she possibly had a club a court record and on terminations that she was yes yes you could but i would say that you have to find there's a factual issue whether eighteen t had a good faith belief that she fossa five the court records we could be wrong and we still have a good faith belief and there is evidence in this record that the attendance manager was suspicious about the timing that was recorded on the work excuse and called the car or a clerk and was told that  gotten a bone it was getting bonuses and they went down a mount of money that she made because she was on the leave earlier yes miss had chosen as her boss her supervisor the attendance officer and attendance manager is great for his compensation allegedly would have gone up and down based on ms hawkins performance and absolutely nothing to do with what happened with the falsified yet not report that or she did not participate her way her only participation was pursuing two union procedures when ms hawkins was upset about what happened about being placed on suspension there was a grievance hearing which they call a court a day in court proceeding this had chanson a supervisor attended that meeting as a note taker but she she had no personal knowledge of any of the facts regarding the that ms hawkins had gone to court she did not influence the decision to place her on that because there's arguably she had a motive to to have lied about what the court clerk said if she were the person on the phone with  caller i would not agree that she had a murder motive being that she's mad because back before she didn't make as much money off of her right where we are now to eight months later out but she's still holding a grudge ok let's go with you that  that odd if you are a letter appearing a letter and you're not involved because she is the supervisor but if you look at ms hawkins deposition testimony she agrees that the decision maker on the  decision maker in connection with the falsified court record mr hutchinson sent the letter because as part of her supervisory responsibilities when somebody in her section is put on probation she goes to her desktop she goes off the appropriate template and she records for the employee you're on probation this is how long the probation is if you have another code of conduct violation it may be grounds for termination terminated but with the fact that she was on says probation yes let's put that falsified record in probation in a bucket way over here if you are related to two customers within it and the customers report it and they're very dissatisfied that is the basis by itself for terminations the more we could find that in the record it's in the code of conduct which is attached to our relationship with eighteen so eighteen tee trained employees like miss hopkins on how to be empathetic how to keep apologizing how to keep making do whatever you can to make sure that this customer stays and doesn't go t doubt and then when she was asked a little bit more about it she said i take the th says she this is notice dispute here that she had very poor communications with two customers atlee upset that they then answered these surveys and told that they felt very disrespected they felt that they would be that ms hawkins was unprofessional she was discourteous to them by itself  putting the probation in a bucket up to the side customer ministry is by itself a valid case is determination and the court may think it's too harsh and been working there a long time but it's this court is  in many discrimination cases we are not in the business of nd guessing employment decisions that are made by companies so this person that had this interaction i mean i want to i'm trying to press  the idea that the court didn't allow the deposition the court clerk in the state court the the person who had the interaction she's not on any judge there's nothing in the record that would tell us that she had anything against the plaintiff the plaintiff and her were in a kind of out of sorts relationship now there's other names that are mentioned in the record another attendance manager by the name is mr hodges who apparently on occasion didn't make derogatory in the morning and then they hand them out and leave it blank right or they leave it blank or else they put they go ahead and put mob o'clock because they know that they'll be done by then for sure and then they don't have to look at the forms or compare as the people leave so so you're not is a red herring again because we only have to show we had a good faith belief and based on the attendance manages telephone conversation with the court clerk she thought that the record had been what t latter and she pulled out the one template she pulled out the template that puts employees on probation protesting mistreats she felt out being information she prints it and then she realizes i used the wrong template so and fifteen and i'm sorry two thousand and fourteen and the customer interactions happened in september of two thousand and so yes we are we are months apart but but again i'm this goes to the distant the disability discrimination their probation is a non issue because that's not an adverse employment decision that's relevant and an eighty eight dollars discrimination thing is only relevant for the f m l a claim but then we have the issue that this happened so far after she returned from leave that there is no causal connection which again was the basis for motion for summary judgment that she of time is too great and you went back to this job case and the whole reason for this and you said for months is there very outside we don't have anything that comes close to this and let me just in if i adverse employment decision but that forty days is a date that is triggered she claims by intermittent leave that she started taking in december of two thousand and thirteen that intermittently was not under see that discrimination was not the sole reason for her discharge discrimination start really was a motivating factor in her terminations hawkins had already been out of herself the for months with more leave to follow we believe that a that would make you know you are and i am not aware of any case but even as a judge doug and talked about when my post in council was here even if it can be argued that the end of hawkins is  what argument was that the d m l occurred approximately forty days from the time that hawkins began taking her in a minute leave that was in january of two thousand and fourteen if the court talks about the end of as in the latest as in december that that bridget ford was the person that started the alleged investigation regarding haps huckins absence on the day she went to court and that she had influence leverage and control over hutchinson attendance managers like bridget for report attendance they investigate attendance they decide whether they will require work excuse when an employee is out and in this case for contacted the court clerk to determine whether hawkins actually attended the day in court and what time she left court of the you know  additional information about him what additional information could you got you already had all of his material so that's that's just it your honor we believe that we were supplied information regarding jamie hayward outside of the relevant time period the relevant time period here is we have the derogatory statements made by hood and we have a clear motive for hutchinson to retaliate against talk of we have the day in court transcript that conditions hawkins return or indian men to you know for her which she has to be there every day in her seat that's what her supervisor said hawkinson leave i mean even if the court doesn't find the pretext exists at best this case should be analyzed under the mixed motives theory the big story here is hawkins lack of