district court made him permissible findings of fact at summary judgment made determinations of credibility and weighed evidence in favor of handy medical didn't consider evidence in a light most favorable to trac her role as the court must do under the summary judgment standard i think the most egregious or the district court made was when it decided that handy medical mr bailey had an understandably hostile response to harold's complaints of discrimination at the same time discounted or ignored m no decision was made as a matter of law errs relative to the summary judgment standard the universe of facts that are most critical to make a jury to hear to make a decision about whether discrimination retaliation happened happened in a period of about fifteen minutes on aug eleventh two thousand and fifteen because of those moments tracy harrell walked into a meeting for corrective action annoy receive the corrective action to try to explain something more about what happened the day upon which she was accused of behaving unprofessionally in the workplace and she made a report in response to mr bailey's words and mr bailey blew up tracy harrell cried she was afraid she went into the median afraid of the man but bailey by his own admission blew up everything changes  now at trial teresa her will have the opportunity to prove by her promise of evidence that the alleged legitimate reason for terminations and for other adverse actions taken were not the real reasons as far as proposed by any medical but rather pretext for the discrimination well the enriching wives only reply that it is not pre textual right the enriching lives comment that harrell makes isn't response to everything else that happened in that meeting when we look at those those fifteen minutes and we don't even have to look at anything that happened prior to that harrell is responding to bailey's bailey's admit it written witnessed statements inside those few minutes i think the real time or what you say the adverse action well we start with we go back go back to august fifth there's the meeting where things are going to change and harold doesn't love it bailey's just a mony ferals testimony learns testimony dieter's peterson and the no longer three critical documents there is bailey statement that he writes post meeting august eleventh meeting there's peterson's notes adverse action is when harrell is explaining i wasn't upset about the changes in the department here's what i was just upset about i was upset as i was leaving that day because i had talked with my husband about the changes in the workplace and i had to go yeah they let her go and she left in a hurry but then she's been accused of leaving in a huff in a hurry and swearing but she explains and everyone in that room knows that mr hair all has a disability that mr hero  condition well might bring about my question was too simple we know after she says enriching life she's fired right so that's an adverse action right do you think there's any other adverse action as the first adverse adjunct thomas the hostility exit strategy because she says it's just a potential that that's really i think those are the words in around so for for her hand let me ask question my question is against various very simple what's the best authority that exit employment exit strategy and handy means terminations and every witness in this case knows that tracy harrell knew that bailey says he says in his no he thought it best that if she felt person wasn't terminated bailey makes it clear by his now that terminate that exit strategy means terminations exit strategy means i'm being really nice here i'm going to give the person for six weeks to work here while they go find another job he says because of you or your family your complaints about my discriminatory behavior my discriminatory comments that's why you need to  when when when these notes are presented to a jury they will see and hear that what mr behind says is that it was his opinion of trees he felt the way she was talking it was  would be better off working somewhere else there was a plan for that strategy a good strategy to happen after the supervisor came back from from his vacation is good there been earlier instances where her performance when when bailey was talking to her and telling her why why would you even tell him something that you knew it upset him that is going into the into the conduct and the situation and the condition of her husband that's to breach that conclusion you have to look in the real world in which we live people complain about discrimination when it's happening to them when it happen just like that that's what happened to tracy hero there w but sealed her fate making the complaint about about about marital status discrimination about using that against her and about her persistence in making those complaints not once twice three times arguably the third time she made the made a complaint was enriching lives imagine the jury sitting there and hearing that as she left the room after being braided she's crying the man's in her face spitting on or moves his chair to make a point and says don't you ever accuse me of discriminating against you on the basis of your husband's disability don't you ever do that shaking his finger in her face she's crying now you say she wasn't on a corrective action plan before she entered the office what's a corrective action plan is a like a performance improvement plan yeah i mean it was she put on that the car of the exit strategy or no the corrective action form that she walked into was one that was talking about the manner in which she left the office that day and on the fifth all you mean when she got called to the office it was to put her on that plan right as a result of leaving yes all right and you're saying that's when she made the complaint and now my other question is what is an adverse action under the minnesota statute is there a clear case on that on whether the burlington northern standard applies or whether it's well something stronger than that any any any conduct on the part of the employer that dissuade somebody from one from making a complaint about discriminat burlington northern standard roughly but they're right in minnesota i'm asking whether there's a case that says that is the standard because prior to brill into northern you know there were cases saying it had to be something that affected the terms this case involves a summary judgment determination that should be affirmed because the foundation for that decision is the plaintiff's own testimony between the plaintiff here's what the plaintiff set about an exit strategy keep in mind that the words exit strategy those two words are different from the context in which all the witnesses including the plaintiff said they were  here's what the plaintiff testified to in terms of her exit strategy this is at the appendix of page two or three i asked her a very open ended question about how did the meeting end there's no unhappy we're not happy so maybe we should can find an exit strategy when scott returns this is what the plaintiff's us maybe that was the discussion and that's out of her deposition well she may call on keep going and going on vacation and when he returns from vacation we would talk about an exit strategy that would work nicely for everybody there and i was told that i was dismissed dismissed from the meeting and then if we continue on as your honor rightly pointed out i go back to it just to make sure this is page one ninety nine of her deposition i say when you left the office did you believe did you believe that you would be revisiting a potential exit strategy with mr learned when he came back from vacation her answer right unequivocally she says right this is the p opposition testimony she can never do better than us well how does that hurt her because we're what we're saying here is they would discuss a potential exit strategy and well that could well mean that there's a there's going to be an exit strategy and they're potentials as to what that strategy will be it could mean a lot of things your honor but what it doesn't mean is an actionable adverse action and here's why in this company this company has a history of not having x axis strategies lead to terminations this is in the appendix at our appendix at page forty eight the human resources director testified about the fact that they say you know sometimes people reconsider they show remorse and we we we welcome that back with the numbers but with this sometimes that is that the testimony i haven't looked at and i'm here i'm behind judge college and i haven't really example where somebody was on an exit strategy and was able to work her way back into the company this is correct your honor started up assistance to give one example however when it comes to this concept of an exit strategy if we look at all the witnesses testimony including the plaintiff's no one said you're being put an exit strategy you're going to be out here everyone talked about if you're not happy here for not happy maybe we should standard maybe not going to lunch with everybody might qualify in minnesota if you look at the specific statutory language in minnesota generally speaking we follow minnesota courts follow the the federal courts on this but use of the statute says it talks about refusing to hire maintaining a system of employment discharging an employee or discriminating with respect to hiring tenure compensation terms so on and so forth this is minnesota statute section three sixty three point zero eight subdivision two you can't have people suing in federal court or state court when their boss is mean to them you can't have people say there's no cause of action for talking about what might happen in the future there's causes of action we're talking about adversely affecting the terms and conditions of employment and that's i don't suppose the boss says this isn't working out we're going to  have to work on an exit strategy in which you'll be leaving the company in six weeks but in the meantime we're going to work with you to help you get a new job or let you take time off to get a new job and so forth would that be an adverse action ever section would come when the person is terminated so you're saying even though they've announced that she'll be leaving in six weeks there's no adverse action until she leaves well there's no note that's go burlington northern is the standard there's no minnesota case that's whether that's an oversight action or not but i would put it in the context of the that's an adverse action why isn't this case an adverse action what he said different because it absolutely didn't happen there was no you are going to be put on an exit strategy there was no it you're gone in six weeks there was no will help you find a new job keep in mind that a jury question as to what exit strategy meant because of the plane of stuff the opposition testimony th isn't a situation where the plaintiff is saying they gave me my pink slip and the employer is saying no we just talked about maybe an exit strategy the plaintiffs owned up assistant testimony does or in this case on every single material issue in  the case when she said it comes down to those pages we were looking at the beginning of year if we think those should be interpreted to mean exit strategy is stronger than what you're saying then it would be a jury question  no your honor again i go back to the fact that it would be a terminations would be the adverse action because even in your hypothetical where the employer does spell out a timeline and all those things things can change maybe the person comes in the next day and says i'm really sorry you know i didn't mean it will be better all these are i won't complain anymore about discrimination keep in mind the the undisputed facts of what happened here this is an employee who has been warned repeatedly time and again throughout the course of her employment about her rude unprofessional behavior well if they'd fired or for that reason and there wouldn't be any case if it were clear that that were the basis for the terminations well this employer should not be penalize for giving this employee a second chance and that's what they did i mean he hears it was an employee here's the context this is a big picture of this case an employer complie absolutely with the letter of the law and gives this employee be every request for leave that the employee asked for every single one of the employee complaints prior to being disciplined of any kind of discrimination zero the employee has a history of doing things like hanging up on hand these customers keep in mind these people need medical supplies and she's hanging up on them she's being rude to coworkers and on august  according to her own testimony blows up after a meeting where she disputes some of the changes that are going to happen with her department and says i'm done with this i'm audit here i'm done right now and refuses to talk to a coworker in an area where she says she's certain there is customers present ok now the employer keeping in mind the good faith belief standard for the employer the employer investigation actually yields information that what she actually said was i'm done with this shit i'm audie here you're going to have to talk to somebody else in so you're an undisputed fact the word shit is disputed well why don't you give us what's undisputed since we're on a summary judgment the undisputed fact is that the plaintiffs says i am done with this i am not of here refuses to talk to a subordinate who is trying to ask her a question and admits that she is visibly  upset this is pentax page one ninety five she says i'm done i've got to go is a fair to say you were visibly upset yes do you think it would be unreasonable for someone to suspect that you were quitting because you said you were done i can see that she's and this is right next to the customers in she says on page one ninety four of the appendix page one sixty five of her deposition the showroom is directly in front of my desk and i am confident there were customers there so once again she blows up they call into the terminator is this a case where they're sick of her taking all this leave until they pull the plug based on this last straw no they they sit her down they give her this corrective action and say no further instances will be tolerated in undisputedly it is only after she is in trouble once again that she says i think you're using my husband's disability against me that's critical counsel says well you know the prior all that matters is that fifteen minutes no it doesn't the history of her disciplinary record and the fact that it was only after she was in trouble and being disciplined actually in the words of this court makes this case an abuse of the anti discrimination we certainly have cases this say you can't if you're on your way out because of bad performance you can't all of a sudden claim discrimination and protect yourself from terminations but the question here is whether the exit strategy coming right on the heels of the complain about discrimination supports an inference that the complaint was really the reason for the adverse action well what do you say about that well it was c burden it was harold's burden on summary judgment to come forward with some inference that this was intentional discrimination no one case that i want to reference here we've heard that the but for standard applies but here's what carol had to show on summary judgment just confirmed by this court in the minnesota human rights act retaliation context this is than the good versus try mark decision issued last month and show the circumstances permit drawing a reasonable inference that the real reason for the adverse action was retaliation well they have she felt that way he got angry and that that's all they have keep in mind your honour's if we needed another nail in the box she was replaced the tracy carroll was replaced by another employee who was also that she was fired for taking family leave i mean the taking of the lead by itself isn't the alleged cause she's claiming  the husband so she said she had four counts three minnesota human rights accounts basically saying from our perspective the same thing and then a family claim saying the same thing she's just soon i'm just missed all of them they've only appeal one and three but keep in mind if if the complaint that she's talking about as you're using my husband's disability against me and she was taking leave because of her husband's disability it's the same it's all the same thing here's the other foods michael bailey just for my information he's the c e o of any medical he's the c e o or he's the fellow he's the fellow who made the comments right ok for some reason it wasn't clicking well what about his testimony where the plaintiff's lawyer says question exit strategy means germination and he says that's correct isn't that significant it is but it's more significant if you read the entire it's more significant isn't that enough to support an inference by a jury that exist rather g means termination if the c e o says that's correct it's not your honor ok and here's why because immediately above that in and you're looking at the page immediately above that he says that he thought that we should talk about it he thought we should talk about an exit strategy and then she takes counsel takes the two words exit strategy means terminations and he says yeah but discussion of an exit strategy or discussion of a terminations or discussion of a severance offer pocking about it is vastly different from the word terminations severance or exit strategy and that's what's lost in this case in chief judge soon time credited the pla testimony on this so what you're saying is that exit strategy doesn't mean termination the problem is that he didn't definitively say we're going to have an exit strategy we're just going to discuss the possibility of one according to the plaintiff and her testimony and that's exactly what well will look at the record what what was the oh yeah the page that i was referring to from the plaintiff where she says maybe and then i return to and say so this is potential is appendix two or three pages one ninety eight and one ninety nine of the appendix i see my time is up we respectfully ask for an affirmative mention the recent in her testimony she doesn't she doesn't veer from her not know i'm talking about harold's oh hero's testimony this morning that your current power citing right was a proposition that it was not definitive well you know what else said it was that she needed a job and that she needed a job you know and that in those moments she was she was upset but she also understood and her testimony is that she understood that what exit strategy means exit strategy and that company means terminations everybody agrees to that she understood that and where counsel for handy asked her it was really just a potential right she does answer yes but she also in many other and i'm sorry i don't have that testimony right here in front me right now but in many other places in her testimony she talks about that she understood that exit strategy means terminations well but what he saying is it wasn't a decision to implement an exit strategy if there was a civility we have to look this this is been switched around what's in bally's mine what's in and peterson's mind what is he communicating what he's communicating by his own testimony is that we were going to fired toys twice his answer is no but then he comes back around and there's a bit you wanted to sit down and talk with about leaving the company yes that's right you had already told her she was leaving the company we're going to talk about yes next question where you want to transition out right is answer yes so what's in bailey's mind what his motivations are he lays them out very plainly and i remember one of the things that he references in his memo about the meeting he even goes so far as to talk about how this letter that he wrote in two thousand and fourteen that harrell referenced as being upset into her husband he defends himself pretty thinkers really in that in his memo saying you know she there wasn't i don't know about you know i knew he had a disability i knew he had something with his mental capacity i think maybe he was bipolar i know psychologists but i didn't see anything in that letter that ought to have upset him so again he's talking about acknowledges that she is complaining about his discriminating against her and the basis of her husband's situation and that's when he blows up her old didn't blow up and counte representation of hair or exploding or or is the day that she left work on august first this is not how anyone described her on that day bailey blue and everyone described him as that red face spinning in her face to make a point that she crossed the line and she complained about the way he was