it's number seventeen one zero eight five terry reedy versus rich transport l l c and others arguments not to exceed fifteen minutes per side mr  keel for the the protect addictively of seeking worker's compensation and the adverse employment action that happened to him there has been a lot of testimony in this case a brief timeline of what exactly occurred will be helpful and january twenty seventh two thousand and fifteen it was a tuesday mystery as a truck driver he goes he makes four stops starting at two am to two pm and and  back he went in and told him the terminal manager the terminal manager told him to report it to his direct supervisor he informed his direct supervisor and his direct supervisor and told him that he needed to take submit to random drug tests to which he passed later that evening he was told that they would not be giving him workers compensation fast forward two days later mr reedy was on the road at around five a series of unfortunate events he was caught in a horrible blizzard his semi truck today three sixty on the freeway he informed the dispatch that he felt unsafe he was and he could cause harm to himself and others dispatcher informed him to find a safe spot to park his truck and go home he called a friend his friend came picked him up took him home mystery wife the previous month had left him at christmas with five young kids so mr reedy would have to get babysitters for his kids and because the storm was that bad that night or that morning school was cancelled and their words and so the kid the babysitter was there an absolutely because it was and that will that but the question is whether the fact that he was a single parent was a motivating reason and whether it was a factor that played in the decision making  of mr lister which was the safety director who ended up terminating my client was the issue that the district court ducked this case were settled and compensation for under the worker's compensation act because he reported a claim on tuesday he was terminated on sunday and would decide to temporal plex amity what evidence is there that the firing was in response to the workers compensation claim i believe the totality of circumstances in this case demonstrates that mystery had become an inconvenience on saturday the night before he was terminated mr lister his boss lower court docket number thirteen five page four nineteen he testified that the night before he or two nights before the saturday so after mystery the one home and was stuck with his kids ok thursday that same thursday mr lister called mystery day and said first question are you a single parent so just i'm sorry so i'm trying to get you are a little bit so let's just focus on this thing and i got a little nervous when your first answer was circumstances because right then i want to hear what the circumstances are and we didn't go there so back to the question is temperature proximity would seem to help you the firing in  retaliation or in response to the filing of a worker's compensation claim but that by itself usually doesn't do the trick so what's the evidence as to that claim of you know the fact that that's why the firing occurred well your honor first of all the the night before two nights before it happened mr lister claims are mr mr testified and mr r s had just told him that mr r had been terminated the next day he got a call from another so that's knowledge of the claim but knowledge of the claim that's always going to be true when the next day mr reedy got a call from another truck driver saying mr lister just put you on medical leave and then the following day he fired ok all right so i think i've got that claim so now in the spouse a one what do we do with the fact that  this is a michigan law case rates this is not a federal the federal statute and it refers to marital status and so that's i'm quoting it and you know relationships and marriages are it's a big spectrum but one thing that's not a spectrum is whether you're married or not and they were still married but marital status is it's it's the statue civil rights statutes are designed to prevent the legislative intent behind is designed to prevent an employer from taking into consideration certain protected characteristics when deciding whether to take an adverse employment i don't a protected characteristic is which of the two married people is taking care of the children if they're married i mean we have lots of family situations where there's a lot of people doing different things well one of the stereotypes of being a single parent is having to tend to your children's needs and the fact that there mr lewis exact scenario could happen with a married couple living together and both i'm struggling with why this case even fits the statute when it says marital status the words marital status your honor i believe there's a few cases that are persuasive on this  classification but they were married right yeah so the next case there wasn't discrimination because they were married it's your view it was discrimination because they weren't married because he was single parent that that wasn't true then it's not true now he was separated from his wife at the time which is defendant's argument is that because mr really was not legally separated or legally divorced he can still be discriminated against because he was single it's only once he became legally separated or legally divorced that this statute would protect him from that same exact type of discrimination that the district court found in our favor on this issue and the the reason for that was because they found the case in miller v ca mirror  court michigan supreme court case there there and now so this was very persuasive and i quote the legislator did not define the term marital status in the civil rights act it has been said that the term means whether one is married or not or the social condition enjoyed by an individual by reasons of his or her having participated or failed to participate in a marriage the usual answer to a query about one's marital status is married single divorced widowed or separated mystery he was undeniably separated during this time the next case just which case was that when you read that was  that was a case about two individuals who were married in the workplace and the employer prohibited against her for bet against that so they brought a marital claim under marital status and the court found that anti nepotism actions is not protected under the statute however they did make a pretty persuasive argument for our case the next argument that's pretty but that we believe is real perceiving under direct evidence or circumstantial evidence is douglas taken here i believe there's both we have direct evidence of mr as you're saying had you been hired you would not have to have you had i known you'd been single you would have not had been be the hiring authority he was the one with the final sign off and final say on who gets hired he's also going one who called and fired him that he said he would have hired it but he didn't say  so the company's perspective is put to the side what happened on the morning of it's the twenty ninth so he's at six am he says you know i've had to leave ten am he's told people are back on the roads to go get the truck he does and he says i can't get something for my kids i guess what i'm hearing them saying tell me where i'm wrong is the truck is still left or someone comes and gets the truck to its place you still have company property left there until february second and from their perspective that was abandonment that's just different refusing to do your job and if i'm sure you agree if that's true that would be a non pretext or a legitimate reason for firing so why why it's a pretext you on your view i believe this is a question that should be left should have been left to the jury i believe that this care comes down to credibility determinations and weighing the evidence and at the summary judgment stage i don't believe the judge should have dismissed the action because he believed that defendant could have actually done it for a legitimate reason but will don't you need more than that what you believe i mean what's the evidence the shifting justifications this constant shifting justification if you look to the facts in our brief and also the record sorry our response to he was off and he works from monday to thursday yes then you got a call on friday saying did you make arrangements to get your truck the blizzard was still going on there was one hundred justification is that he couldn't get anyone to get his kids from january twenty ninth february second or was his justification had don't work some of those days you can't hold me responsible you know it was i my certain circumstances are not allowing i cannot go get the truck on let's you let me take my kids with me his employer said no and hung up he was unable to do it the route wasn't even going on friday saturday and sunday due to weather i don't know what their days a week are january twenty ninth so it's not very helpful to me you're telling me from january twenty ninth of february second no one was doing this even though someone obviously deliver the truck during that time so someone did deliver the truck to the client the trailer all right so the following is that the theory though is your theory no you could not go out in a snowstorm in a snowstorm went from january twenty ninth to february second and that he was our theory is that was the theory that you couldn't get a babysitter during that time that he was obligated to stay home with his kids and that was an inconvenience to his employer and that motivated their decision to just get rid of him but why can an employer say you can't leave company property abandon for four days five days he was told to leave it there right he was told by this patient with their ok and then when did this mi come to get it what's that about i believe sunday he got a call by mike saying you're on medical leave i'm coming to get your truck and this was the day after his the decision maker in this case found out allegedly that our client also had a worker's compensation claim so now there's two inconveniences on in the employer's mind and we believe there is sufficient evidence for this to go to a jury to be able to make them make credibility determinations z a with whether all the shifting justification and when was he supposed to go back to work on his way gular schedule one day monday when  and when was he told not to go back to work i don't know the exact hour just i just want to make sure i'm getting that is your point that the hit from his perspective a jury could find that he was never told to get the truck once he got a friend mike to get the delivery done it didn't matter that the truck was there till five or second if in his mind the company didn't need him or didn't want him to go get that truck between january twenty ninth is that your theory the theory is also that it's just yes or no as to that and then you can add another one when you refer stated again i'm just trying to i'm trying to figure out you know you referred to their shifting justifications of trying to figure out what your theory of pretext is and what i thought i heard you saying in response judge why it is he wasn't told to get the truck and remove it from this lot  for february second he was told he was who sold on friday but he was unable to because so some of the real theory is the real theory is from january twenty ninth february second it's not snow it's not what you were told it's couldn't get a babysitter during that time that's the key point he was obligated to stay with us show german at least for a couple days ok all right so whether whether there was a legitimate reason for terminating him for terminating him or not it may be it is it is if the employer actually used soley that justification that would make sense but if the employer also considered how big of an inconvenience he has been firs workers compensation claim and or for being a single parent after he told them you would have never been hired had i known this then that is discrimination in violation of both statutes so just one if there weren't the evidence of worker's comp and there weren't the evidence about we would have hired you if we'd known you were a single parent or any reason at all an at will employment would be ok but if one reason is a protected status or a protected activity that it is illegal it just needs to be a reason in the employer's mind or the decisions made makers mind when terminating the employer position and we believe there is sufficient evidence for this to go forward to a jury and you know the tough the thing about it's funny to me to have the employee admit that level say there's three potential explanations for a filing it's just a funny setting for me to think of a world in which the employee acknowledges that one of the three are legit by you know that could be the nub are nondiscriminatory that's the point it's a nondiscriminatory legitimate reason for a firing but then to say but i want to go to a jury because i think what i can get the he voluntarily quit he abandoned his truck it was self terminations because he did not notify dispatch this was their initial dress for occasion it wasn't until we started poking holes and we found that the employee handbook says one is only considered to have abandoned his truck when he does not notify dispatch our client testimony was he notified dispatch his his supervisor said yes he did notify dispatch it then change please to court my name is denise great house on with michael best and friedrich i'm speaking on behalf of the apparently rich transport we hear today on two counts that was dismissed it was a partial summary judgment that was granted by the michigan's workers disability compensation act claim we're asking today that the court affirmed that decision i will first began by discussing mr ricci's argument regarding the michigan's elliott larsen sorry elliot larson civil rights act he's claiming marital status discrimination first we were argue of though the district court did not agree that mr ricci was not in a protected class he claims marital status  single parent but for over twenty years he was mary he was he says that there are some michigan cases that suggest that if you're separated the employer knows that that counts there is not one michigan case and suggests that one case that he sorry opposing counsel mention was a miller case and what they were referring to in the millet case when they said marital status if you're married or not the focus had been if you are married or if you are not married what was not address was if you're single i mean separated legally second separated if you're divorced if your widow those had not been addressed in the application so that's why they went further to say separated but it was not saying separated not legally separated it was no discussion saying that a separation without a being legally separated counted as you a question you used the phrase legally separated twice on a little embarrassed i don't know enough about this yet i guess i'm happy i don't know enough about this yet but i yes the one spouse is really angry and they walk out and they say i'm out of here is there is or something that makes that quote separation legal like to file papers and say we're legally separated on our way to divorce yes that's what happens yes your honor because you know in marriages people walk out all the time right and right everything they want to happen with their friends and sadly coming back but i'm not sure depends on how i feel at the end of the weekend exactly and actually that happened in mysteries case because they were only separated for much so that where they were they quote legally separated they were not quote legally separated actually to be quote legally separated you go to the courthouse you file separation documents and what it does is it allows an american or the two individuals to decide if they want to go further and actually get the divorce legal separation does not get involved where you have a situation where with divorce is depending on the state you have to start dividing things with legal separation you don't have to go through those things so you're green with the court that right now we're legally separated but we're not ready for divorce does it apply for just because a person has children people have kids and it could be a wife or a husband who has most of the responsibility and could have been stuck in the same situation as mr reedy who was separated not legally was separated at the time so or your question your honor no it does not protect someone just because they have kids because they could be a married person or single person a divorced person as well right a case in support of your position are you just going by the language notice there is a trend with this marital status discrimination one they would say that marital status discrimination is defined is not defined in the statute but it is defined to mean based on the courts and willis nation intent was is to go after the actual if you're married or not situation not the conduct of the person how they discuss this isn't three different cases in one case there was a situation and this is this true washed enough excuse me for mispronouncing these countries six for five nor was two decent for three this is a michigan supreme court two thousand and two in that particular case it was an individual he actually was separated not legally separated yet he was going for divorce he was working in the country club with his wife he was having an affair or he had a mistress country club members didn't like it they did a survey a number of country club members say you know what the fact that he is getting a divorce but not divorce yet and is living with someone we don't like it employer terminated him the good court said in that particular case look for marital status we don't address cond we address your status you have not pointed at anything that stated there based on your status as mary not mary or divorced is the reason for the for the client i would say the same thing in this particular case there has not been one argument yet this says that rich transport had any type of adverse action against mr reedy due to him being he was married i can't even say single yes or one you know one principle that i guess could inform this is i know of one area where perception of status is covered so that's in the disability discrimination arena so the federal laws are explicit about it but other other areas because i mean what i could see saying from his perspective is well there are other areas of civil rights commission where if the perceptions enough and i know that's i would consider that a background principle with disability discrimination doesn't apply in other areas i haven't seen it apply in the other cases in any other areas even in that particular case where the a they spell it out alone their perception is well received as is perceived as disability  in those cases ya know to i want to know there's oliver r c best a dispatcher this is who mr really sees as his supervisor this is the person he speaks with four to five times a day yes there is a night dispatcher but those are all random he has one person that he considers a supervisor based on his testimony mr sam lister who allegedly made the comment and i have to think most mayberg just like the court has to feel most  that to them we have over rich transport have over three hundred employees drivers they turn around very quickly from various different reasons when they start coming to work is considered terminate it we don't give you another route that's how it communicated you don't get another route so they're now later sent down unfortunately call saying when's my next round is my understanding that on tuesday which would have been february third he called regarding his status at the at rich transport they said you abandon the job is that what they said they said they said that you don't have a route is our understanding you're no longer here he was speaking to a random dispatcher but let's go back to the yes your position is that the first time he called after there's disagreement about whether he could bring his kids or had to go whatever it was february third on tuesday no there were different calls in between there but regarding his actual employment you know that would have been there to say so there are cause being made from actually transports transport to mr reid so there's communication they're trying to get him to his truck and trying to pick up that truck but they had nothing to do with the terminations when i brought up their date it was regarding mr reedy inquiring regarding the status of his employment and rich transport how would he of let's say it do a understand correctly he's supposed to start monday at two am or is it tuesday at two am he will start my day at two am ok so when would he call in for that assignment he already has his truck he has a normal routine he doesn't change his routine only thing he does is keep his dispatcher aware of where he is and that's why mr are six getting it why didn't he show up on tuesday or monday two am had no clue and that was our problem but no clue and no clue besides he was terminated he felt he was terminated he had abandoned his truck he knew that mr r c had told him to get back in extra he knew that we had picked up that truck as well on my day because he did not grab his truck so he has no trailer ok i'm confused i know i thought somebody did mike pick up the truck or the trailer might picked up the actual truck the truck so the trailer was still sitting there no you know so the truck and trailer sorry i should rephrase so just to step you through on january twenty ninth when he called about the snowstorm and he can drive night dispatch he claims he called when you were twenty nine was which today thursday thursday yes so when he caught saying that he couldn't drive and he this is essex i'm sorry in the morning he pulls over and is used to is not in yet it comes in at night mr r c oliver r c mr r c comes in there's no movement of the truck they're getting calls from customer service that hasn't been dropped off they haven't received deliveries i i'll call you back he needed a baby because he sent his babysitter home he called him back he call missed our seed bank he said i can't get a babysitter i can't get back to the truck on time was this what they said this is still january twenty nin mr mr r c is trying to get mr reading in the car it's also noted by mr r c in his testimony that while he filled roads are clear enough to drive because he has another driver that's doing a similar route not the same right trailer to the next customer he still needs to drop that low so raise miss our mate for a driver to actually go to the truck and get the trailer that has material in it for lack of a better word so it could be delivered mr reedy agrees to do that today this is still thursday still thursday yes it was a long day i'm sorry and that he asked a friend to drive him to the truck ricci's route for that day he also leaves an empty trailer for mystery because mr reedy is supposed to start back up and pick up his truck and continue on when he feels that it's clear mr ricci never does that mystery never picks up his truck they day passes two pm passes we don't pay but wait why is he supposed to pay it if that load is already taken yes why is he supposed to pick that up on friday if the mysteries testimony will also say that he works on friday sometimes to this monday through thursday is not just a set schedule sometimes he works on friday his testimony is not so strong saying i did not work that trailers the company property is the company property in your honor we've had this problem before mr arcee testimony would discuss this as well and i think of the h r person which is charlie jones may speak of this as well and that there is a concern that if you leave a truck at a truck stop for too long the action they would tow and then we have more expense trying to get the truck and that was a concern mr r c has a lot of vandalism pfaff problem it's it's a ticket problem until prob it up and i know there has been test my if i can just go just a bit further on that there's been testimony saying that there's been different reasons for it one was spoken of as cindy shall or which is actually the terminal manager in indiana has no authority over mr ricci is not in the corporate office at all and was she saying is something she heard it was based on hearsay that it was a banding in the truck that he didn't report to dispatcher so there's there's never been a chain is there a definition of abandoning the truck yes your honor in the policy there's a definition that if you leave the truck or you don't report to the truck that's consider abandoning your job ok but he did the dispatcher told according to him the dispatcher told him to park it at the truck stop and have someone pick them up yes yes and i dispatcher his supervisor his direct supervisor that he deals with every day more five times a day he receive assignments were told him to go to that truck and he did he didn't pick it up on january twenty ninth he didn't pick it up on janeway thirtieth he didn't pick it up on january thirty first on february first he still didn't pick it up but we had to see fired that would have been there were a second  it might be good when i had a cheat sheet on that i think monday my it was it is the second it is monday is the second i think you were saying earlier tuesday because february third as well because yes you're right yeah so that was the first communication that he wasn't getting new rules that's correct and what about these comments about you know when you says i have my kids i can't do anything and then someone's in and discussing his kids that's when mr r c his dispatcher who he was say never had made any comments regarding him being a single parent or had any problems with him being a single parent mr r c was to talk about he says he we have single parents  the comment you're referring to your honor is one that's coming from supposedly mr lister the safety guy and in that conversation mr really would say that's the only comment that mr lister said to him he's not even sure why he had that call with mr list at all i would say because the reason that comment is important for this particular case is direct evidence we do with this me a situation a direct evidence are in direct through as i stated earlier and through m on testimony mr lister head no dish decision power over him he did not have the authority to fire him at all he did not hire him so based on richardson be well well mark they clearly say that through direct evidence even if there's a comment that's made in that particular instance it was a comment saying that the person was too old and it was an age discrimination claim and two individuals had made that claim one was a manager in general one was his direct manager and in that particular case they said if he was not the person who actually made the direct adverse decision of the adverse action that is not direct evidence it should be considered in direct evidence and i would say in this particular case is just real quick the comment was made by mr lister and it is my client's testimony that it was mr lister who fired him so the comment was made by the decision a stress job was in safety is that what his position was safety director yes your honor i'm not sure how the structure and he had hiring and firing authority to be a firing authority that's according to him yes according to your client now according to mr lester he has the final say on all hiring fifteen and then your honor just real quick pretext can be shown by many different ways one shifting justification credibility issues and changing rationale that's and lewis state department of corrections another way is that changing rationales or yes changing rationales is an initially they had stated if you look at lower doc a number thirteen dash seven page four ninety four charlotte jones when we what give us the reason why you terminated plaintiff the reason was he abandoned his truck and that he may have had disciplinary issues we suspect that's just to give them a little wiggle room in case the first reason did not hold up the second way to show pretexts is it did not actually motivate the the claim we are arguing that there are that that that the leaving the truck was not the sole reason it was more of an inconvenience and that should be an issue left for the jury the district court stated that job of abandonment there was no basis in fact for that and in there in the district court's opinion there was no basic basis in fact to believe the job abandonment but it could be believed that i just don't know what it really means i mean so this is not this case one about to say but it was traits my problem with it and you can imagine a trucking company having a policy that says you know you get a dui you're fired no questions asked  explanations it doesn't matter that's it but then you look at the record and it turns out the employer and the driver and had some other problems and disagreements and will say there were some discriminatory comments by the employer predating you know the couple weeks before the dui do you go to a jury because you you have this evidence that the decision maker didn't care for this dryer driver based on let's say marital status religion race sax whatever it happens to be it's pretty good evidence but we won't call it direct evidence so it's still still an injury case you go to a jury because there's a there is a legitimate debate maybe they're just using the dui is they were just waiting for a way to get rid of him where it happens in that case it's contrary question that's different circumstances no it's a hypothetical so i'm there on that but what have i what happens i mean that there were racial cami as you because you pointed out motivation is one of the ways to show pretext so do you just do you have the jury like figuring out where they just looking for a reason to fire this guy and once a dui happened allow them to act on the randomness or do you say it doesn't matter they had a policy that said no d lies i'm sorry again that's a different situation mcdonnell douglas has been fashioned in order to find a discreet acts of discrimination so maybe if they were waiting for a reason then yes it should go to a jury or to have a debate about  to the plaintiff his testimony and pay court docket number thirteen dash to page three sixty forty three sixty five he says sunday he got a call and said he was placed on medical leave monday  gets a call from mike mike the other guy who is coming to pick up his truck ok but he's not but mike was calling to get the truck right yes and then that he called mr lester and said hey what's going on i just take my truck and i met a man a medical leave and he said you're fired i'm sorry he calls lyster on monday on monday when on monday believe at the start of his shift i'm not positive about the time either and i like two in the morning i believe yes ok and he said and and tell me what the discussion is according to him why did you have my take my truck and i'm he said as a medical leave mr lister said you're fired that testimony i don't want i don't want to represent something that's not accurate the testimony is on those pages but that's the gist of the situation ok and then given that you're saying he asked if he was on his shift i'm not positive but mr lester told him that you're fired regardless he was at that point he didn't believe he had an obligation at work because he was told he was on medical leave and he no longer had a truck well didn't he expect that someone was going i mean if he's told to pick up the truck he says i can't have my kids here and everything why would it be strange if someone else picked up the child that's not strange what strange being told you're on medical leave when he is not i mean his condition he was seeking permission on thursday and he's getting this on sunday by the same guy that said the single parent thing the same guy who was reported the worker's compensation claim to the company ever admit that he was on medical leave i do not believe so here and is might somebody who has authority to say that he's on medical leave and believe he's just another driver having my client's testimony eighty verse michigan bell telephone company those are perception cases about america matters marital status or perception cases about other forms of skin federal federal civil rights statutes  helpful briefs and oral arguments in france your questions we really appreciate it will work our way through the case it will be submitted in the correct may call the last case of the day