to remember that i want to reserve four minutes for rebuttal good morning judge clay judge stransky judge black my name is bruce elfin and i'm here on behalf of marie weaver marie weaver as the nine moved in this case credited those that story and then we made statements flat out that ultimately are wrong about the issues in this case we believe there construed the evidence in favor of the she became the clerk in march two thousand and eight one of the things in this review that we think is critical is that the court below equated statements of i don't remember i don't recall w that either something did or did not happen we believe that this case also is an example of one judge more wrote about in thrash versus miami university in dissent where the district court judgment to freely especially in employment cases we think this is true especially where the proper interpretation summary judgment must be balanced to effectuate the seventh amendment and not to undermine the right to trial by jury weaver was hired in at the end of two thousand and six as a deputy that at the beginning of two thousand and eight she was promoted to acting clark and in march of two thousand she was given the position since since we're talking about an immutable characteristic claim of discrimination your id you account for those promotions and while we're here not on the underlying claim of racial discrimination her claim that she raced to the city in november of two thousand and eight was that she believed she was being treated differently and how she was able to act as the clerk of counsel because of  her attorney wrote a letter to the mayor that was delivered the morning of november eighteenth she got her first discipline courtesy copies were provided to the council can you appoint me to a document in the record that shows that that was actually emailed to the rest of the council your honor i'd like to tell you that i'm an ultimate technophobe i'm not quite there yet but it's my understanding it was sent electronically to the council members as well you use the can't her council sent it so if it was then we and the email is in the record then we should have an email that shows sending as a copy to all of the council members have i missed that your honor i don't believe so it's my understand if you look at thirty six fourteen in that in the docket record that is the letter from barbara besser that was sent to the mayor the mare acknowledged that she had it before the meeting on the eighty's therefore twins were certainly had knowledge of it i cannot verify from the testimony whether each councilman received it on that same day you verify from the documents that each council were actually in my own i know that they were e mailed or sand the document some of them i don't know if we had ever it could even have it on my y'all some of them may have been forwarded by mail and they may not have gotten them for a day or two thank you the retaliation though is that as soon as her complaint writing was receive where she complained about racial discrimination which the mid to getting i think a fair inference in favor of marie weaver is that they dredged up events relate to i and consider them for clearly when you wrote about the fact that well actually it's a laster case in laster you only have to have something that materially effects the employment doesn't have to be straight adverse and here she was given the choice of she filed formal charges of racial discrimination in retaliation for what happened arising out of the november eighteenth actions those were final february twenty fourth of two thousand and two twins were professionals acknowledged receiving those charges of discrimination on or about at least at the latest march sixth they also acknowledge that march sixth within twenty four hours receiving it they instructed marie we were you add to the next council schedule council meeting that was before days later the following agenda item to discuss pending her imminent litigation on march ninth the day before the meeting terms were  a search using weaver as the search term for the first time on march ninth that then was used along with a printout of some of the e mails and as the justification at the meeting for terminations we believe that that shows a significant temporal nexus between the events and the terminations charges received the six search was done the ninth and letters of terminations drafted on the tenth terminations decided the evening of the tenth emory weaver looks at it and says what what changed during that short period of time with and who would routinely been a thorn in their side so they search for gate hush not search for me to marie weaver she was not the subject of that and therefore i think that undermines the city's position because they said one thing and the documents are contr the other criticism marie weaver as to what she disclosed or what she did came out from her deposition thirty nine months later the court also allowed an articulated what i call an honest belief defense of they briefed in their brief in opposition here raised by twins were not the face of it it's interesting because none of the decision makers actually reviewed the materials the twins were claims supports ther terminations in an honest belief  or you cannot raise an honest belief of it and not redo the underlying documents or not look at the information and so i think that at least in summary judgment whether they could argue it to a jury is one think are important on the license fee ordinance issue twinsburg claims there were no meetings between the rejection by the state and the discipline imposed marie we were offered facts that there were seven meetings between july twenty ninth of november eighteen and no discipline was imposed before they got notice of her complaints the clerk says she didn't put anything in the record to show that there was conflict conflicts between the shifting positions a city city terminated or on the tenth announced to the world and put in the paper we did it because of her performance over the last year yet for the first six months of a year she was rated affective and highly effective and how she carried out her duties as the clerk for the first six months they we believe that if you look at this temporal connection i've gone through those events it took less than one week after getting the church also here one of the things the judge didn't even mention it took no consideration of the fact that it was see investigated her charge of racial discrimination and both charges of retaliation and in an unusually since they returned reasonable cause findings on both retaliation we believe that significant cause e e o c finds reasonable cause and i'd like to court to take judicial notice of the e e o c statistics that they find reasonable cause less than five percent of the time here marie weaver had two reasonable cause findings of her favor the court doesn't even comment to the court doesn't consider it the court gave them no weight i think in summary judgment where they are factually relevant to the issue to be determined i think it mitigates against summary judgment less or some flaw court finds help me on one factual issue with the seven meetings that were between the july time frame and the november time eighteenth right but now merely one meeting after october eighteenth or six but there were six there were six before october eighteenth one on october twenty eighth and then the next one november eighteenth we believe reasons advanced and her charges as being responsible for the adverse actions i think that is a disputed fact and i think judge adams should not have decided this  the facts in this case demonstrate that plaintiff cost the city eighty six thousand dollars was disrespectful and insubordinate to the mayor now those facts were confirmed by an independent neutral third party  explain the favorable employee evaluation it's actually if you read the evaluation it's not favorable there are five instances of needs improvement all dealing with interpersonal skills and one area must improve so the evaluation did not lead to terminations but there are clear areas where ms weaver was instructed to improve and then the must improve would have had to been followed up at the next evaluation and with good sift references to these problems with the problems that are the problems dealing with the  yes i'm not certain about the filing them i don't know if it was mentioned specifically it's a it's a for you know circle one through five in the needs improvement must improve satisfactory i don't know if there was much discussion on the form itself regarding the filing fee or the filing year after independent confirmation of the missed filing  and the insubordination the recommendation was made by the neutral for one of two things employee assistance or term or suspension after consultation with her attorney ms weaver chose the suspension that's the first claim of retaliation the second claim of retaliation has to do with her termination and the facts there show that plaintiff was terminated for not performing her job why was she not performing her job she didn't stop there instead he took the next step and he said let's just assume she has let's assume there is a temporal proximity let's assume that's enough even if we get her past that hurdle she still fails to demonstrate that the city's proffered reasons the if for purposes of the suspension the missed filing in the insubordination and then for purposes of the termination these e mails even assuming that plaintiff has proceeded to pass the prime facia hurdle she still hasn't proved that the city's reasons were discriminatory and for that reason he granted summary judgment and there is some discussion of the facts i think this is true with most employment cases you'll see us up here today arguing about the facts but not really the law we all agree with the law is this kid this court's had a lot to say about temporal proximity of late and we're not appeared to night what the court has said we're saying fine assuming there's a temporal proximity even though we don't think the facts play out let's just assume for purposes of argument there is we still have legitimate nondiscriminatory reasons for supporting our actions and for that reason judge adams correctly concluded that this is a summary judgment case let me ask you this  contacted the e e o c regarding a racial discrimination claim for any purposes the earliest that the city would have received information was the e mail so the decisions are to be met been made that we need to discuss these issues that's done on the fourteenth we believe that her first contact with the e e o c was november fifteenth the next day november eighteenth there's an e mail that goes to the mayor no one else the mayor does not share that e mail with council members with the mayor attend that meeting there is a factual dispute as to whether or not she did she does not recall she recalls attending many of those meetings she cannot recall if she attended that specific meeting what is undisputed however is that the fact that this e mail was received and that plaintiff did go to the e e o c was never discussed at that meeting and we have testimony from every council member present saying that was not addressed it was no idea the any other council member said that she was present suspension is that adverse employment action i do not believe that the assistance or for a was a negative employment action we have case law in our brief to support that proposition i will tell you it's not from this district i don't need the assistance she still disputes that her confrontation with the mayor was anything other than civil we next have the terminations and i want to clear up some of the facts on that issue the testimony is clear that in the spring of two thousand and nine the law director learns that there were some telephone conversations some communication between waiver weaver that sounded as if weaver was offering to send over documents that information's brought to the law director's attention he decides to look into the matter on march third he does so by investigation over the weekend he read some of those initial e mails he realizes there's an issue he decides at that point i need to bring this to council's attention on march sixth he runs a second search he wants to narrow down his results so he can present accurate information he runs a search of both weaver and gate ash together he comes up with one hundred twenty e mails exchanged between these two individuals the e mails as he's printing them up he realizes that this information from weaver to gay dash is being provided voluntarily there are no public records requests he goes to the log weaver keeps a log of public record he checks the e mails against the law they're not in there other public records request show up in the law these public requests do not he also finds that legal opinions are being e mailed to me is good evidence of of a personal spat between members of the committee the council members are being voluntarily e mailed certain specific e mails to the e e o c during their investigation those e mails are also in the record but i will tell you all one hundred twenty are not during deposition ms weaver testified that she provided these e mails without a public records request they never would have become public knowledge absent her unilateral decision to release them she was not submitting their requests t appropriate entities at at the city and she did not direct the request through the proper channels and again they were never entered into the law for these reasons council met they listened to a presentation by the law director they looked at the e mails there's testimony from one of the five council members saying i did not read the specific e mails everyone else testifies we listen to the presentation we looked through the records and we unanimously unanimously voted to terminate those individuals had no appreciation for the fact that the e e o c charge had been filed they were not aware of that that is their testimony one member of that of the five testified at some point he learned of the e e o c charge during an executive session he never says it was the executive session where we decided to terminate the plaintiff council members also said you know remember which he did not remember which one correct but he also said had i known or had it even been mentioned that there is an o c church file i would have found that objectionable there's no evidence in the record that any actions were taken as a result of the e e o c contact there's no evidence in the record that the e e o c contact played any had any bearing on the ultimate is in the record also demonstrates that every single one of these employment actions was started or initiated prior to plaintiff's contact with the sea these reasons judge adams correctly granted summary interestingly when it came to the ordinance and being a registered with the state of ohio there was a dispute a fact as to who was responsible for sending it to the state some council members blamed it on the finance directors some people blamed it on marie weaver ultimately receive some discipline for didn't she say in her deposition that it was appropriate that she received some discipline had she received that discipline shortly after they were notified that it wouldn't given effect for that year she probably would have said yes i could have appropriately gotten some discipline however no discipline was given until the day her complaints about racial discrimination came to light that's the that that terminate suspension of terminations decision was made when the terminations decision was made in fact the very person who made the presentation to city counsel mr mistress admitted that he knew about the charges on march sixth he requested that this executive session be added for pending and imminent litigation so the prevailing person knew about the charges was the main actor in putting all this before the council collecting everything so you're saying that it was on it was actually on that meeting and so on march sixth within twenty four hours of getting the charges may stroh's asked the meeting agenda to add an executive session to is that item on the list of their own the agenda for that meeting date on march sixth the agenda is meant amended to add that item for the march tenth meeting on march ninth before the meeting maestros does the search using weaver and gave up on march third before he got the charges there was never any search of weaver there was never any look at reweave or for these things and so i think it's a fair inference that the charges had an impact and led to the second search where she was turned if you look at the clear jet image business justification to terminate somebody send remember what this kate ascher whoever it is your clients disclose in the emails and confidential documents to somebody who is not a friend of the city's under twenty emails is that right well your honor when you say confidential documents virtually all the documents were not confidential i'm asking so she just can send that whatever she wants to what technically she failed many respects your honor she should have added more to the log of public records request because that was part of her job and he said this and in fact some of the records were claimed to be confidential mr may stross himself offered to produce two citizens who has form such as mark to sherman and that's in the record with respect to legal fees and legal bills but  waiting it's docket number forty one dash levon it's an exhibit of her performance rating there there is it's not circle something it's you go through a new radio each little sub part and then you come up with an overall rating for the but and the question for me is how each would show pretext and under the law you would need to show that there is no basis in fact for the reason they cling to a fired her it didn't actually motivate the action or it's insufficient to motivate give me your best argument on what a stablish is pretext pretext here is establish that it's clear that prior to receipt of her charge nothing it happened that caused them to say we're going to consider terminating so i think what happened in terms of the conduct within the city is they went looking for something to terminate or for one slip got the charges and then they build it back in the search of the e mails didn't they on march third before they received the retaliation charge i remember on march third the only thing e mails were searched for was gay tosh not weaver and good osh was a citizen that they were already in litigation with that they'd already had a lawsuit with that they were in conflict with and they were looking for all of ms gay doshas contacts with the city it was until march ninth that they searched for weaver you don't dispute that the law us was getting public records and that other citizens were getting public records the thing is that in fact in the performance review that ms weaver had one of the things they said you have to do better and maintaining your spreadsheet the log of what went out with public records that was one of the things that she had to improve on over the next six months and so i do not view i do that is a disputed fact that had to go to a jury and then i think judge adams took