reasons first the record evidence is sufficient to show causation between adam gross participation in the commission's andersen investigation and its terminations from the company this is particularly so under this court's precedent  and given that he was questioned about his protected activity just hours before he was fired secondly the record evidence presents a trial issue of pretext here by way of the company's departure from its own policies and practices in the manner that it fired at hurst let me break in the other side imprecise the probable cause finding which also occurred back near the time of the interview i notice i don't think your brief has the word probable cause in it good briggs but you didn't mention the probable cause finding at all well you know they say that takes the wind out of the sails of your point because they've known for a year and a month i think that you know there's probably cause period is is important but what is actually critical here and what would allow a reasonable jury to conclude that the company fired out of both because he had participated in the commission's investigation is the following that midday just hours before she is fired i remember one of them now that's pretty weak because a lot of companies have all kinds of exit interviews and questionnaires and all kinds of stuff and i know this is a family business but they have a lot of stuff i think if that's what you're relying on that's very weak but what you need to rely on his story that you have to bear with me but police connect it back to the protected activity  participation in the investigation your honor the questioning it's true your honor that in an exit interview a number of things you want to be wrapped up loose not to want to be tied if that were the purpose of that meeting other things would have been discussed for had passed the company could have inquired about the investigation at any point it did not it shows up on september first immediately following the filing of the lawsuit to take a number of a quick succession of actions f umbrella into a one on one private meeting the only topic of conversation there as we've discussed your honor is the investigation of the note that mark murphy right also is about the investigation and this on his mind which was the commission's investigation the lawsuit and what adam brill had told the commission that apparently made it subject to the litigation and to protect your honor there is evidence in this record that would allow a reasonable jury to discredit the purported performance problems which the defendant states where the real reason why it fired at him pro this is because according to product fabricators own business records it was the same year that a find out in brazil that it would document performance problems and issue written warnings before it took more serious disciplinary action against the employee including suspension and this case from a nation in this case in this record there's absolutely no evidence of any written warning that was issued to edinburgh for any reason at any time during his employment this would allow a jury to conclude that it was his participation in the commission pleased the court my name is jimmy and green i'm representing adam bro i like to take my short time to discuss the disability discrimination portions of the trial court or and i'd like to fact issues that the district court ignored when granting summary judgment the first was the fact that two or three weeks prior to adam bros term ation he told an officer of the company that he was thinking of having surgery on his shoulder th pain was getting too much he couldn't take anymore the second one was that the same mr murphy had lamented to mr brokaw that people in the company which mr wrote took to be himself since he was the thirty to sixty i thought it was like thirty or forty i think although i don't know i was asking why it proceed yes and that the that these people were a cost product fabricators a lot of money instead of best one is adam bros own opinion of his department handling in that he said he was doing a fine job that's a fact in the record that particular fact is the case law we cited your honor is enough to go summary judgment but there's more there is the fact that nobody ever told him he was doing a bad job that nobody ever said and i'm you know you're not doing enough and if you're not going to you know do what  you're supposed to do you going to be fired i mean that's a tenant of employment law and it is a particular part of pretext when you say after the fact a subjective reason that he wasn't doing enough ok well i think we can take that to a jury or in fact i think you have to take that to a jury the issue that the district court talked about with respect to reasonable accommodation the district court also doctor already discussed surgery with him and now he's telling product fabricators that he's going to go have a talk about surgery to the doctor it's at that point that he gets fired and that the district court unfortunately that an unlimited amount of leave time is it is unreasonable and also says well he didn't really ask for an accommodation and that's i think the more salient point and i think the district court cutting  a little too thin your honour's i think that what we're doing is we're rewarding the company here for getting ahead of the game and saying well you know it's just a matter of time he is doctors already talked about surgery  for what is in essence a pre surgery console he's going to have time off let's just cut this one off right now and that's fine if there's a good reason to do it but there isn't i'm sorry he had surgery the same kind o another he'll know you're out of this is that this was the right shoulder wrong shoulder his right shoulder he was also having some problems with the left shoulder it gets confusing but the right shoulders one he was going to have surgery on and the left one then he was w your honor first of all we don't have a talking to let's go let's talk first of all because that's the first argument that consul for appellant the e e o c suggested and that is whether we retaliate and here's what here's what here's what happened that key facts are this adam barrel participated in each investigation in june on june twenty fourth of two thousand and eight and in august of two thousand and eight the e few months later and reported a work reported a work related injury from that time forward until adam was terminated on september one of two thousand and eight p f i complied in all respects that's one where the supervisor was up to protect the communication those of the wastebaskets as you're fired and the district courts all their other reasons and we said well you're one of them throw in the waste basket surely there's the you know that's good enough for retaliation you know seems like the same kind of case to me where you're talking about it right before you fire him and let the jury figure out which calls works no absolutely not your honor because because the e e o c used trying to say that the intervening event here was the filing of the lawsuit of dennis anderson anderson he recommended that dennis anderson be terminated prior to the time he was so we already already knew that there was already there's also indicate there's also evidence in the record that he he talked to adam bro after the and after the so there's evidence they said their suppliers were upset don't don't know the district court says that they were told whether suppliers they were upset you did something wrong and let's be clear here because there's no evidence in the record as to when the suppliers talked to talked to p f i told them about it there's no evidence in the record that p f i ever saw the newspaper article that was in the star tribune article they talked about media but there was no such thing there's no evidence all that there's evidence is that that was given from the receptionist to mike murphy sr and all we know is this mike murphy sr testified in his deposition that when i got the message on september second i called back n message to mr murphy and have him call me but that doesn't mean that mr murphy got that message and he sooner than september second so i don't think there's any connection there i mean it's nice to try but there's no connection there between the lawsuit which what which is deemed to be an intervening event and the fact that adam was terminated on september first and let me just talk about the acknowledgement from minute because i think that was brought up as well in the state now if it was not about the substance of the protected activity or they're trying to make it sound like it is all it was was i just want a confirmation you know if you look at it look at the record mark murphy was had been concerned about the e e o c misrepresentation knowing he was knowing that he plans to terminate and he wanted to have something for the record that it's not at all what we have here all we have if you look at you can look at the acknowledgment self there's nothing about any of the questions that were asked what the discussion was with the e e o c that would have been in invasion into a protected activity that isn't what we have misrepresentation and he wanted to you know perhaps do something with them that's all that was just to click close up the file it's a good jury argument but don't you think you also think that the murphys are pretty mad at this point on this day not a reasonable inference favorable to them who lost the case that this is not a happy day at p f well you're making the assumption that they know that they know that there was a lawsuit we don't have that that that there that's well two ways one we don't know that but even if they knew they had put in put in place before that in july of two thousand and nine because they were concerned about adam brawlers poor performance they had already posted  an ad in the paper at you know florida and hire a new employ so if we look at the right versus van vincent case you know they had made that decision previously that actually stood for that same proposition when when when we have these facts in place that the f b i knew about and that he participate in the protected activity they knew that adam breaux and recommended that dennis anderson be terminated that they had complied with all of the restrictions on medical care required by adam broad during the time that he when he reported his work work related injury and and and also not only that as part of that they promoted him and put him in a different position in a supervisory capacity he was doing well up until a few months until the spring of two thousand and nine and then they got complaints you know an employer has a right in terms of you know to execute its business practices this court does not see it as the super personnel department to make those decisions even if the decisions aren't always accurate but in fact if this court is going to say that an  in the record that that would open up the floodgates in terms of what could happen that isn't what this that it wasn't the purpose behind titles of it and so we asked the court to consider that and to find that there is no it was no pretext there was no causal relationship you only have to go to pretext between the protected activity and ambros termination he was terminated for poor performance first of all his claim that we discriminated against adam braun because he had a disability in violation of the eighty eight why it's clear in the record the record is clear that adam bro did have conversations with mike murphy jr and mark murphy but the record establishes this this conversation with mike murphy was i have some interest you know my stuff sold is bothering me mike murphy's response was go home and see how it is over the weekend i'll he may have asked him about you know he was going to see it was mentioned he might need to take a leave his mark might be don't know how much time it could take edinburgh said i'm going to go and i'll get some information from the doctor he never got any information that's also clear in the record so we don't have a situation here where there's any any any substance to the fact that we discriminate again he was terminated specifically b for poor performance looking at the record you can see as i've stated on and on that shows that we accommodated him for when he was working part injury my time is up thank you very much his reaction was that he was very concerned the information was coming from employees was being distributed around town as we discussed earlier the public nature of the lawsuit that mike murphy sr also do you know when he learned about well record evidence would allow the reasonable inference your honor that if i was aware of the lawsuit on august thirty first two thousand and nine when they closed plants and called the commission attorney called the company to relay the news that it filed a lawsuit participation was mid day september first the next day that in itself is evidence to suggest that the company was aware of the lawsuit why would it then be prompted to question him after having months having passed since burroughs original injury was in two thousand and eight and that you know over a year passed before he was terminated but that doesn't a good knowledge the statements that mark murphy made and the statements that mr burrell made just  just before he was terminated tempura proximity as the court knows under the peterson's bring a case can be a mere matter of weeks and that's all that's needed to survive summary judgment in court ignored that  i also want to point out that that p f i had warned numerous persons before they terminated these employees never warned adam broke once which is the best  have those things but in fact afterwards the p f i did continue to warn its employees and what p f i will tell you is that well those were different types of things not just run a m performance which again i think is cutting into thin thank you ron thank you council which is to thank all of the attorneys for their presence in argument this morning we also thank you for the briefing which you submitted can sort of these