the court my name is veronica proctor i represent plaintiffs an appellate process michaelson and i would respectfully like to reserve three minutes for rebuttal today at the summary judgment stage the judge's function is not to weigh the evidence and determine the truth of the matter rather it's to determine whether there is a genuine issue for trial credibility determinations weighing the evidence and the drawing of legitimate inferences from the facts are the jury's function you're the district court erred when it resolved disputed factual issues some of which required an assessment of witness credibility in dismissing mr michelson's claims and i'm going to generalize this the district court essentially found that cummins had good cause to terminate mr michelson because of long standing in adequate communication that was a serious and long term problem is a board nations with  well the long term serious inadequate communication was an error in mr michelson's view because that terminations notice just alleged insubordination for a failure for eight am daily checking calls march through april it did not reference the november two thousand and fourteen or any other previous month of communication issues that the district court used when it relied in its decision why would march through april be insufficient your honor that's a good question and that's essentially why we have a lot of disputed facts here today mr michelson injure his shoulder as this court is well aware november of two thousand fourteen he continued to have issues with chronic pain he had cortisone injections and physical therapy appointments etc however he was still struggling essentially so in march march nd two thousand fifteen he was prescribed a strong opioid medication tramadol to help with his fatigue since he wasn't sleeping at night and his chronic shoulder pain unfortunately that started the chain of events that is why we're here today the next sixty days he struggled under the influence of this medication in his affidavit he specifically stated that the tramadol made him drowsy affected his balance caused stomach issues he was not able to drive per cummins policy because he was under the influence of a narcotic the air was so he was only able to pick up the phone call mr comb it did not and he was and argument to that is that march rd through i believe the th he was sick or at home because of the side effects of the narcotic he checked in every one of those days via e mail with mr colby one of those days he called ok my timeline shows that between march th through six he did not contact mr colby is that wrong your honor i'd have to refer to my and timeline he was in contact with the human the human resources gal excuse me mrs nino and he had a doctor's note for those days that he was out march rd through the  e mails mickelson telling him to come to work on march th and he must call call capital letters must arrives that's correct your honor however he didn't end up coming to work on march that he went to physical therapy on march th he went to physical therapy and throughout the next week he continues to have issues with p t medication side effects and asks for a non paid leave of absence so he can direct his full attention to his medical issues and then come back to work ok but even so on march th i'm focusing on this part of the timeline because it's what you raised on march  he didn't call he mailed it ten o'clock that night i believed i was i mean my missing something no your honor you're not i was there michael says argument is that it was reasonable that he didn't think he needed to do his eight am check ins if he was taking a six day or o leave that those eight am check ins were for when he was actively working since they were supposed to be with a supervisor to discuss the plan for the day so he interpreted his duty to his in employer manual employee manual or any law that you can tell me about that the employee can interpret what he has to call her to the supervisor giving him an instruction no you he was getting paid during his time yes that's well he's on commission so that's a little bit of a complicated question your honor but when he was sick or on well i think his actions on march th suggests the reason he was reticent to call koby he at that point filed an internal grievance with the company saying that he feared retaliation from colby or false accusations and that he was being discriminated against because of his disability and request for accommodation with his shoulder injury investigation was merely i don't want to say it a sham but essentially had some issues with its transparency and its purpose i say that because the human resources gal emailed colby privately shortly after the internal investigation began told him that it was going to be fine this was no big deal and that she wasn't concerned about it he wrote back and told her it was his nd complaint against him in two months and did a smiley face about how it probably wouldn't be his last a few days after that the internal investigator that cummins had assigned to carry out the investigation she was from a different office before even interviewing mr michelson she calls tara me now the human resources gal and says to her so what's this one million five hundred thousand dollars projects that he's close to finishing i'm concerned about it from a commission point of view because we don't want to if he's terminated we certainly don't want that to fuel the fire of retaliation claim and forgive me i'm paraphrasing but essentially she's talking about the company's liability before she even interviews mr michelson the human resources gal is going around the supervisor making smiley face the modis and telling them that this investigation is no big deal and he'll be fine and they haven't even spoken to michelson and face speak to michelson actually i apologize part a speaking of michelson they pull all his e mails his phone calls and an annual review the crux of his complaint against comments was disability discrimination failure to accommodate and retaliation for his shoulder claims so how his annual reviews e mails or phone calls relate to that i don't think that they do but of course that's a jury question was comments in good faith actually kept carrying out this internal investigation or was the outcome pre determined and they were merely going through the steps that internal investigator never even pulled colby's annual reviews for the fact that he had been implicated in he made the money that made the company operate so when they changed personnel he had is this record would suggest he had made up his mind about what his position ought to be look he should be able to do but we can't this is the case on that we've got a case on what the record you know what the record shows he was told to do certain things that fact alone does not mean that there is not a disputed fact for the jury to consider for instance going by the tenor of this panel so far just let's just assume that insubordination it was good cause he can still prove pretext for instance there was no eight am check and call ever prior to the beginning of the issues he was having with the medication he had had an  his annual review the week prior didn't have any call and mandate it didn't have any calling mandate the year prior he was not put on a performance improvement plan or anything of that nature the eight am call and was only instituted after he got sick and he was having trouble communicating and he wasn't even hardly at work when he st get sick he injured his shoulder in november of two thousand and fourteen right and so up until then he didn't told colby that he fell on the stairs at work it says data i know but that's what he told colby is that you know that's what you're free to correct your honor and then he reported it right but the annual review that was done on march nd of two thousand and fifteen specifically said michelson had a positive attitude despite having endured a very challenging year in two thousand and fourteen and that he only needs to continue to focus attention on making sure that we're answering all phone calls and returning phone messages within a reasonable amount of time there was no mandate at that time for eight am calls that didn't happen until a week later on march th after mr michelson has been struggling with tramadol the effects there from and was missing a lot of work at that time i'm wondering if you assigned significance to the earlier part of the timeline mr michael so began working for come and in september two thousand and eleven we don't know if he had any trouble at that point but then in april of twenty four thousand he began reporting to mr colby in may he took unofficial leave made october to care for his ailing father so presumably didn't have contact with mr colby during that time when he was on leave no he did your honor it was just it was more sporadic because he was trying to just do the bare minimum to keep the activities for his job and that but he was given some leeway given his family situation ok so unofficial leave doesn't mean leave leave him as he was working from case i'm not trying to put words in your mouth i am trying to figure out whether this sequence early on is part of your claim or if you're only trying to focus our attention on the later events in march well i would like to focus your attention on the later events in march but the district  my name is jeff beck and i represent the appellee comments incorporated the crux of this case is whether mr mickelson's failure to follow cummins reasonable instruction that he communicate with his supervisor constitutes good cause for terminations or whether it was pretext for a true discriminatory motive the district court found it did not constitute good cause or it did constitute good cause i'm sorry and that there was no evidence of a discriminatory motive the case comes down to a simple set of undisputed material facts over a forty two dollars day period mr mickelson spoke to a supervisor one time and he e mailed a supervisor a handful of times but only either to call in sort of e mail and i guess you'd say sick or to send him a forecast on april one and then a couple of times in april about whether he was available to schedule a meeting on a certain date other than that there were no e mails and there was one phone call this despite repeated instruction from his supervisor and from cummins human resources representative that he needed to communicate with colby at least five occasions the human resources representative terry me now specifically told mr mickelson to call a supervisor she even told him that his failure to do so was insubordination  to discipline up and into including terminations if he didn't comply ultimately has been communication became so poor that on march th his supervisor implemented a brief daily call and so that they could discuss the plans for the day and so that mr colby knew what mr mickelson's work was what was going on in the territory he needed to know these things mickelson specifically the canal is this requirement in that march th e mail he said i know that i'm supposed to call you every morning at eight am and i understand that i'll be disciplined if i don't that's why i e mailed him so that he wouldn't have to call him on the th you know communicating with these facts aren't disputed by the way communicating with your supervisor is certainly a reasonable job expectation it's not an onerous requirement coby testified he was trying to communicate with mr mickelson so that they could conduct the daily business of the territory and so that he could make sure that customer needs were being met yet despite all this mickelson still didn't communicate with him district court found this was a good cause for termination and entered summary judgment on cummins behalf and this court should affirm that decision i'd like to talk start briefly with the wrongful discharge case as we all know wrongful discharge discharge is wrongful only if it was not for good cause and that's not a difficult standard to meet in montana could cause is a reasonable job related grounds for dismissal based on legitimate business reasons and as long as they are not whimsical arbitrary or capricious the district court found that he was not in the record but i think it but even so i think to look at that you have to go back to november of two thousand and fourteen that's when mr colby met with mr mickelson and told him his communication wasn't efficient and that it needed to improve and you need to focus on returning his phone calls in a timely manner including his phone calls it didn't improve so in december he also instructed again that his failure to return his phone mr copas phone calls was unacceptable then we get to march it didn't improve so the performance review as a category on there that says communicating with client's team and something like that and he he received it i can have it right here it actually says response of the customers team and company he received a need improvement writing a two on a scale of four in that category in that performance review and it did say that he needed to focus his attention on making sure he's returning customer calls and my calls in a timely fashion what's and details as well so forgive me if the david the performance review think you have to look at it and i say this a long answer but you have to look at in that context that he's the one who's having these communication issues that necessitated this eight am phone call if he's if he's taking time off because he's injured or you go into physicals there is still obligated under cummins policy to call him he was obligated under cummins instruction to call him that is correct even though he's not working because he says that makes it all the more important for him to call in because you know this this this rose because after they have to review he called in that was march rd he asked if he's not working we could send somebody out there to do the work that's right that's right and he was communicate with colby while you're getting treatment for your shoulder injury she said it's important that colby can meet the needs of the customers while you get the treatment you need she stressed to him that it was more important so that they could feel they could make sure the customer needs in the territory was being tended to in his absence opposing counsel's argument is that if we find there is a legitimate nondiscriminatory reason that the burden is going to shift and she thinks that was a pretext yes she and she mentioned a few things that she thinks we're prete one of them is that he thinks that he was relieved from obligation to call while treating his shoulder injury i think we discussed that i'm happy to answer any more questions if you have any on that other was that the eight am check in requirement single mr mickelson now and the other one was  to say there's this drumbeat in the background because there was this large commission and that's in the e mail traffic and so what is your response to this yes there there the e mail the issue with the large commission whether that was true or not we don't know but that issue arose because that's what he reported mr mickelson that's what he reported when he called the ethics complaint he said that he was being mistreated by a supervisor he said that he had a law that he thought he was being set up to be terminated and he said he had a large commission that was coming in  on this particular sale and so of course what what ms borland did as the h r representative who is separate she was all the way in memphis tennessee doing this investigation is that she contacted the h r representative now and asked for some background information based on his allegations she developed questions for her interviews based on the allegations and what she knew from mickelson's report and she asked those questions of mickelson to begin with because she started with him when she conducted this interview she not rise to the level of pretext it has to be something more than that and i don't think we have that here was really evidence of commands terminated other salesman in order to who are paying them commissions no there's no evidence of that in the record i think it's important to and to focus on the fact that during the course of this investigator not during that the course of the time when he's not communicating with colby mean house and you know she's contacting him at least five times saying you need to speak to your supervisor and the failure to do that is insubordination and it can result in your terminations and he still didn't do that even if you take out the period of time for the investigation when he gets the notice on april th that the investigation is over will certainly that should should make him say i need to call my boss on april th because i've been told five times that not doing so is insubordination subject to discipline under comments conduct policy and that conduct policy says for insubordination it doesn't say you're going to get a performance improvement plan it says you can be subject to immediate discipline up into including termination insubordination is a serious offense and that's what happened in this case you know even if you take out all that time he still you have the period before the investigation and the period after and he didn't comply with the basic instruction that he needed to communicate  supervisor about his claim for disability thank you yes his claim for disability discrimination fails for the same recent he was terminated he there is no evidence that his his shoulder injury had anything to do with his he hurt his shoulder he hadn't reported it koby said we're not doing anything tomorrow until you report that injury could be someone who told him to report the injury reports the injury he he takes time off for therapy he takes time off when he's ill and he's not disciplined for  any of those things he gets all the time off he needs his schedule is you know they allow a schedule to be flexible the only thing they wanted him to do was communicate with his boss in the more flexible they allowed his schedule to be the more critical it was to communicate with his boss because nobody knew what was going on in the territory colby's having to get information rd hand from people at the branch and from you know finding out that oh so and so talk to ross today and this is what's going on but he wasn't getting that any information directly from from mr mickelson and th or maybe the th i think it was but nina his response was if you need a leave of absence there has to be a medical basis for it submit the medical basis and will you know address it and he never did the only medical basis he's submitted after that was a note saying that he had presented with claustrophobia and he should be able be able to come back to work on march twenty six percent of that note on march th that note didn't say anything about the week that he had missed the time that he had missed after he was released on march yes please your honor and i'll be brief i think we're getting a little bit down in the weeds which is what i fear the district court as well because we have to remember that we're at the summary judgment stage here with whether what mr michelson was doing was reasonable when he was under the influence of opioids with respect to him feeling that cummins was attacking him or are scuse me not attacking him but sort of he actually does make a comment about he feels like the wolf is going after the last one and i heard because he's sick he's struggling he's not getting much in the way of accommodation he kept getting e mails from human resources kalmus nino saying you're going to be terminated if you don't get a doctor's note you're on excuse when he was taking p t o that was all the way through march they were i don't think they were hostile communications in my opinion cummins disagrees but obviously that's for the jury to determine whether they had were accommodating him appropriately or not basically the two factual questions we have in this case that i don't think you can escape is whether he well whether michaelson reasonably believed he was excused from making his daily eight am calls with mr colby when he was sick or otherwise out for medical leave and number two whether the investigator miss borland advised mr michelson that he could limit his contact with mr colby i e not to the eight am calls during the pendency of what the investigators are correct so sure mr michelson conveyed his concerns about mr colby to miss borland about making false accusations and he was uncomfortable talking with him because a retaliation concerns it's disputed about what happened next but mr michelson is claiming in his sworn affidavit that she told him it was reasonable to not speak with mr colby during the pendency of her investigation that lasted march  that determination for terminations had been made by april th so the seven days that they're arguing well then he still didn't contact him he planned to come up on the nd and fire him and that was eight days