of analysis in these cases is depending on whether or not there is direct evidence of discrimination or not when there is no direct evidence of after all a retaliation the court just to use the same mcdonnell douglas analysis that's used in effectively all other types of discrimination in retaliation cases the court is i'm sure quite familiar with that analysis but simply there's a three step burden shifting process that takes place the very first the defendant company must meet this burden of proof by a preponderance of the evidence in the event the company establishes that the burden shifts back to the plaintiff to come forward with evidence  protected activity and the employer's adverse employment action at the onset and be clear the first two elements for up from a lay retaliation are not really in dispute in this case by the court or the defendant to the first element ms bakley clearly engaged in activity protected by the afa mol fact the defendant in effect is arguing that one of the reasons why this court should not reverse the lower court's decision granting summary started when they ended but as a matter of fact there were four f mily of some intermittent some continuance and that distinction matters when we look at some of the case law cited in both parties briefs as the second element bakley unquestionably suffered an adverse employment action in fact she suffered several adverse employment actions and that she received several reprimand for oral and written right up after she applied for a family leave and most obviously her employment was terminated and that is not in dispute for practical purposes on this appeal therefore case is really about the third element that is was there a cause of connection between a protected activity of taking malaya leave and the adverse employment actions defied by a few moments ago and kept versus missouri highway and transportation commission this court noted that the quote cause and connection required for a should case is not but for causation but rather a showing that employers retaliatory motive played a part in the adverse employment action to that and kept held that evidence that gives rise to an inference of retaliatory motive on the part of the employer is sufficient to establish a causal link and hite first vermeer manufacturing company this court gave more specific clarity to the types of evidence an employee can put forth to satisfy the cause and connection requirement and that regard this court noted that an employee can make a cause or connection through quote the timing of the two events that is something that has become really the heart almost of both parties briefs so what does that mean how far does the plaintiff have to go to prove that and what additional evidence if any is required under what circumstances starting to moreover this court held that an escalation of adverse and retaliatory action by an employer can be used to quote shorten the gap between employees protected activity and employers retaliatory acts similar for two thousand and fourteen just one month after his back please intermittently ended she received a written reprimand regarding a legit concerns about basic surgical techniques and sterility something that prior to transferrin the operating room she was not receiving such complex prior to requests from f m i leave that she didn't really receive any sorts of complaints st louis has argued that miss bakley was doing a very different type of work previously but the record before this court respect least transcript from a deposition shows otherwise and that she was working in the labor and delivery unit where she was often participating as a surgical technician and c sections and other procedures leave this time consecutive do you think it matters that she was on f m our leave almost during the entire period of time that this was happening as a good question i think it mattered from the perspective of trying to apply a lot of this case law because there really aren't any cases where that took place i think that in many ways it makes it a little bit easier in the sense that it wasn't just one continuously there were a series of a total of four of them so it gives us a chance to see what's happening if we're to draw an inf of retaliatory intent doesn't it cut against you that they continuously gave her half a mile a leave well i think judge that she was entitled to that i think that what happened i think an inference can be drawn that over time they became very sick she continued to go out now continuously for one thing but most of the time she was out and in fact if you look at the disciplinary actions taken against her it was when she was requesting oftentimes the intermittent leave coming up she's coming off a leave request intermittently so what they know as an employer is she's going to be gone for periods of time can i jump ahead because your term is is running short they need they gave him one appeared on the face to be a legitimate reason so what's the evidence that the there's a few points in that regard one of which is that we have additional evidence beyond just sort of this she's getting disciplinary actions are saying that is because she these different warnings were related to very specific things one of which was that she didn't follow the on call procedure when this bakley explained that back in her  deposition she said well actually was a supervisor who's not following protocol because i had a pager hospital pager that's how they get ahold of us and she called my cell phone or there's no guarantee a cell phone is going to be on or off it didn't have to be the big one that happened related this operating room procedure break down where they allege that she went the bathroom for too long that she got dirty if you will which means she broke sterility and all and the lab and miss bakley explained all of that back and numerous ways she said nobody else was expected not use the restroom during these procedures said often times last hours and hours and hours there's no guarantee it could be an hour could be ten hours she even ask her coworkers is it ok if i leave which they would do as well or not her boss but the expectation was to make sure the room is good to go and then leave on different breaks when there's not anything for them to do so nobody else is getting in trouble for that this to realty she testified happen all the time a lack of sterility and the operating room maybe disconcerting to those of us that might be in an operating room but this sounds like it's a matter of reality that that's happening and there are protocols in place to fix it or really according to us back to his testimony doesn't take hardly anything in order to ensure the safety of the operating room for that to take place again not her coworkers were getting in trouble for that so we have an issue as a defense raised well we're not naming a specific individual well and the various cases cited in our brief the high case in particular an individual wasn't named there either it was a specific individual the big issue here is how connected they are to one another and that regardless bakley job but they're all expected to do the job is relevant important to operation is taking place in that patient so there is connectivity there at least as much connectivity as we see in a lot of the other cases where this court has said that that was sufficient we also have more evidence beyond that and the question is a faulty right is this court has said that if it looks like on the face that what's being alleged in the pro happened she never received them at all she also said that she talked with the operating room with her supervisor i should say miss babcock about sterility procedures following the sense that nothing no discussion about what happened i think it's important to know this big of a deal is are making a sound like it's a safety protocol violation somebody could die they waited eleven days before they actually terminator and during that eleven days she testified she was in the operating room doing procedures so about the application of it is as indicated we have what seems like one continuous f mily there's more than that as this case has pieces of all these other cases that are sided and there's not really as far as i can tell a case directly on point kaiser we'll hear from you good morning your honor i'm here representing st luke's preschool presbyterian hospital in this matter first i'd like to answer a question the judge grounder asked specifically months while she was in this period while while she was in the operating room the question really isn't whether she had ever been on f m l a that's that's a given the starting point it assessing the case is the well settled law that eligibility for and taking f m l a doesn't necessarily insulate an individual it in of itself from what would otherwise be appropriate and legitimate personnel actions so the fact that she was on f m l a for such a long period of time only makes it more likely that yes she did have protected activity but it's only more likely that during that period of time there was go there may be some type of legitimate personnel action that's why the courts have routinely said that temporal proximate proximity alone is not sufficient to korea the kind of causation that's needed for a private  case let alone the kind of evidence which may be necessary for proving that the defendant's decision for making the ultimate decision was pretextual i'd like to also address  perfectly it was a perfectly appropriate for the district court to have reviewed these facts to make a determination first as to whether there was a genuine issue of material fact but more specifically because the  relied on temporal proximity to understand the context and understand the meaning of whether temporal proximity actually was meaningful whether there is a reasonable inference from that or whether no reasonable inference could be drawn from it the facts of this case indicate that of course that she was hired into the position while she was on half an hour away and not just hired into the biz ition while she was on half an hour away she specifically volunteered to the hiring supervisor miss babcock who also ended up being the person of terminator she said in her interview i want you to know that i'm on f m that way and according to ms bakley ms babcock's response was that's fine that's not a it's true that when when mr howard said says well yes but those were her rights that's true but the argument is that the supervisors are biased against her and so i think one of her supervisors would take the exact same position and that was that was her right so that was that was perfectly fine she had been she had been continuously granted leave for f m l a on and off for virtually all over ten or twenty nine o twenty one of her twenty nine months in the operating room she was there was never an there was never an argument that there was she was given grief for taking and he have a rap that she was told that it was inappropriate if you look this case stands in stark contrast to the facts in high where there was such a greed justice and overt hostility that was rude or reflected by the supervisor she was you argue still that prior to her increased use of the family that she wasn't subject to any reprimands or disciplinary is that accurate well i don't think that that's accurate but not surprisingly honor the record really doesn't delve into her treatment disciplinary or performance wise while she wasn't in the operating room and she was a part time position at the time she moved into the operating room why is that not surprising why when the people defending the case try to respond in the argument to discipline only started after the f m l a week well the argument that the that this is a point only started after she was on a half a mile away came up in the briefing it didn't come up in discovery the argument was that where else would it come up i mean that's all point of discovery oh you mean the you you make the argument so the attention was paid on her treatment while she was in the operating room she had different supervisors she had different job requirements and it was a period of twenty nine months that's where the attention w paid i don't think that it would be fair to say that her record indicates that she had no discipline i think it would be fair to say that the record is silent as to what it is what kind of discipline she may have had prior to the time that she came into the  i think it is also important that well isn't if it's undeveloped isn't that essentially a concession that there is no prior disciplinary history in we can't really talk about it because all you're doing at that point is asking us to speculate right i don't think it's a concession that there was no discipline i think it would be true that we would be speculating as to whether there was prior discipline you know well i mean the other way to look at that is it's the plaintiff's burden and if the plaintiffs trying to show an increase in discipline maybe the plaintiff has to come forward with evidence of no discipline in the prior period i saw rose that year so what so and so i think it is a it's an appropriate thing for us to focus on the the discipline that she did receive while she was in the but my hat my question was they made an argument essentially that the a plaintive disputes that there were any verbal warnings given and that the eleven day period be tween the time of the breaking of the  that so i would say in the first instance that this case doesn't start with the final incident and of course starts with her disciplinary record well before they ever have the final incident and i'll see it in a minute i'll spend a time a little bit of time talking about that because i think it is important but secondly an eleven day period of time to wait is not a lot of time given the fact well first of all there was no issue of life threatening activity there was a performance issue of an individual who had made her way through the progress of disciplinary process it was then later reported to the supervisors about those activities and rather than making a knee jerk reaction to what was report them they actually engaged in that investigation and interviewed people who were in the operating room including ms bakley and so i don't think that eleven day delay between the time an event occurred given the fact that it then has to be reported they don't have to schedule interviews and there was no life threatening issue that was present to them at the time that an eleven all day delay i don't think is unreasonable i think that's actually really relatively a prompt response i do think it's important to talk about the prior discipline though and how it is that ms bakley found herself in this position where this event led to her termination and it wasn't something that was imposed on the hospital by her it was something she would volunteer but involuntary you have to show up within a period of time because it usually indicates that there is an unplanned or an emergency surgery taking place and on these occasions ms bakley was call and did not sometimes did not respond at all and sometimes responded to to lay the there's no dispute that these events actually did take place so there's no dispute for example that she was called and she didn't come in and there's no dispute that each time that she was written up that it was by a different supervisor there is no allegation that any of those supervisors were biased against her because of her use of f m l a times there she has identified no one else who failed to comply with the on call procedures didn't respond in an appropriate time and didn't get disciplined so there's no example of a similarly situated individual who did the same thing and didn't get disciplined  and i think it's important to note that those actions are not the subject of this lawsuit the subject of this lawsuit was the final event in or terminations so while it may be now that the claim is that  which there is no dispute that they actually did take place and she did violate the rule there was no sudden rush to judgment of during the the evidence also indicates that during the time she was on syringe that included that had that she had mislabeled it included an anti coagulant instead of including water and she indicated that yes this was a big deal and what you saw what you have is in the middle of all of this you also have an excellent example of a time where rather than indicating that their supervisors were looking for a way to terminate her for half an hour later use there was a time when they refrained from disciplined to disciplining her in the final event there is no dispute that the surgical staff had reported what it is that that she had done that she was contaminated that she entered the scare off field several times she admitted that she now they interviewed her also she admitted that she was contaminated to her supervisor they reported that she took all of the surgery in the middle of the surgery she took all the surgical instruments off the preparation table in order to count them in the middle of the surgery she was counting the the equipment and did not have them available for immediate use by the surgeon she admitted this to her supervisor she was gone from the operating room for at least fifteen minutes in the middle of the surgery now while she has explanations i spent five minutes to go to the restroom to get a drink of water and ten minutes to respond she also is acknowledge that she could've re of in a process that would have been perfectly acceptable that would have taken thirty seconds she it mid that the normal amount of time than a person is away certainly people are allowed take bathroom breaks but the normal amount of time that people are away for a bathroom break is five minutes that this surgery precedes she's the surgical technician and not that she came to the bathroom break but in the in the ultimate conclusion from the supervisors was given her prior disciplinary record and what they had reviewed of her performance that she had an uncomfortably cavalier attitude toward what are appropriate procedures to be followed in the operating room this is exactly the kind of case that would be appropriate for when the courts say we don't sit as giant person all boards to make decisions there is no evidence that the supervisors believe this information to be false and there's no evidence that these supervisors who made this decision believed that that made this decision instead not because they believe the reports but because if they had a discriminatory animists toward ms bakley there's no evidence of bad faith and we would have seventeen seconds like to address a couple points addressed by counsel for st luke's first is really with this prior disciplinary history which has become a big part of this case the first thing i would say is i think that the defense counsel here on the issue already when he effectively conceded that this is not about the prior discipline up to the last event i would say it isn't it isn't i don't think it helps them that there were these prior disciplinary incidents because i think those were part of the pretext that the argument miss bakley is making i do think that they're correct that the final straw was the last incident they supposedly took place in this operating room she wasn't fired that we know that so apparently that wasn't enough to do it then she was with respect to the operating room incident so they it's important to look at that incident in a bubble for purposes of what they're nondiscriminatory reason that they  property is but i think it's also important to look at the prior disciplinary incidents and the timing of them and the fact that that mr bakley is saying that two of them that they're claiming are in her file didn't even happen at all which this court has discussed the pa files and how that can lead to evidence almost direct in a sense that there is a reasonable fact finder could find that that proffered reason is in fact pretext so explain it to the court there are really two things going on there it is a it is relevant but it helps miss bakley it's not helpful to the and as i explained before in my prior opportunity to speak with the  court there's no first of all there's no evidence of this ever happened before so opposing counsel keeps talking about she kept doing this she kept doing this and that the her supervisors determined that she just cavalier about procedure in the operating room whereas the evidence of that before this court from what i can tell the evidence i've seen there was one incident and it's an incident that given all inferences the plaintiff she said had happened many times as many people and they were disappointed with that it asked th