our next two cases which are consolidated are case numbers sixteen dosh one zero three three one and sixteen dash one zero nine one seven both style timothy to back versus michael stores incorporated i jack i l i'm here to represent the plaintiff and appellant timothy to back the question is whether the the district court incorrectly took this case away from the jury by granting summary judgment and the question of iesus a mansard is was there sufficient evidence and permissible inferences in the record from which a reasonable jury could conclude that a substantial reason that the defendant terminated mr due back was his filing a worker's compensation claim i say substantial reason because it's important to keep in mind that under the law for a workers retaliation worker's comp retaliation claim to be action need to be a substantial reason for the terminations need not be the only reason the employer may have had other reasons but if the employer also considered workers compensation as one of the bases that is actionable retaliation the key facts in this case really set up a very suspicious chronology from which mr due back contends a jury could conclude through the evidence and inferences that michaels considered and used as a basis for termination the worker's comp claim before mr jack was injured in september of two thousand and thirteen lycos had some issues they wanted to talk to him about and they were they had already decided not to terminate him for those issues they were going to give him a warning when the injury happened on september fifth things change michael's behavior toward mr jew back changed significantly i hadn't already changed when he got the new boss john roberts he was on him from the beginning not about the shoulders but about  false expense reports and having his own private company that he was he thought spending too much time on that it was in that boss all over him for reasons that had nothing to do with his shoulder earlier shoulder injury i think it's fair to say anything about the shoulder injury that occurred before he arrived at the scene actually the evidence shows that when mr roberts arrived on the scene who knew that mr jew back had been injured in february about six weeks earlier and had not made a worker's comp claim that wasn't the same injury from september but he knew about that and that plays into some of the things we believe the jury could infer but you're right about the expense report thing and a warning was given in june of two thousand and thirteen about that no terminations and there's no evidence that anything like that was repeated so that wasn't shouldn't have been part of the consideration not a reasonable consideration after june and july and september fifth mr jack was injured on september sixth with mr robert's knowledge he went to a doctor to determine how significant his engine was he had reported this injury already to his company and that he was going to make a worker's comp claim that he could see go to the doctor and mr robert's wanting to deliver the warning message but not a terminations a warning message about the other issues that were pending started contacting him during the day while he was at the doctor he contacted him by e mail and insisted that mr due back make himself available for a telephone conversation later in the day i don't know how many e mails there were but there were several and mr jack resisted b that he was on pain medication he was in a lot of pain he said i'm on pain medication mr roberts persisted in going forward with this conversation and he was very aggressive in the conversation very aggressive he insisted the mr jew back read the warning paper over the phone told him that you have two minutes to read it he said if you don't read it in two minutes you're fired and then he did some kind of a countdown it was timing him as he read the paper there's evidence that at some point during the call he made a very inconsiderate remark towards mr jube ex wife telling  tell her to shut up or i'll shut her up surely there's conflicting evidence about what mr roberts said but that evidence is in the record from which a jury could find that mr roberts was extremely inconsiderate agitated maybe angry maybe angry and that's that's something that a jury ought to know about finally when mr roberts heard again from mr jack that he was on pain medication he had he relented in the conversation ended but right after that conversation mr roberts engaged in a significant effort to investigate mr jew back and this is what's really interesting is something a jury could deduce mr roberts motivation from you say in the brief over a dozen times that this investigation was either a new fuel or a highly unusual yes but under these circumstances how can you say that i mean all of these facts seem to point toward when it investigator somebody just investigated for their highs and unusual ok and  mr roberts investigated a couple of things too i would say two different categories of things he was investigating a first one is maybe i can show that this injury is being faked so he looks for and has somebody pulled the surveillance video from the brandon store where the injury occurred and he was watching those videotapes hoping to see that the injury didn't really happen and nothing significant really happened well that that wasn't the case there was a significant event he checks m military history because he says i think he knew that mr jew about had a prior injury from the military to see if maybe this is really the same injury and he's just faking a new injury and then the second category of things he looked at is perhaps a very telling he looked at videotapes from various stores that mr jew back visited as part of his job to see if mr jew back had even been doing his job no one had ever told him otherwise but he looked at these videotapes the jury couldn't could conclude hoping to hit a home run hoping to find dirt and a terminable basis that had nothing to do with the workers comp injury that's a very suspicious thing to do that has nothing to do with the injury at all so why does it isn't it sort of consistent of that we've all had jobs for rolling along and here comes the new boss and the new boss is all over you and isn't it consists of mr roberts seems to be a tough taskmaster he's already kind of not happy with your client to begin with based on the expense report in the private business that he's running  some reports that he's annoying people by trying to sell his product to them and so looking at other videos to see if he's actually doing his job is not inconsistent is it is it with the fact that his supervisor mr roberts already had some issues with your client's job performance it's one inference that could be drawn but let me just add one more fact to it there was an injury in february that mr robber of the mr jew back did not report to workers comp i wrote about it in the brief there was a manager there who said you better not report this worker's comp mr jew back took that seriously and did not do so michaels has a policy that this incentivizes reporting workers comp injuries it penalizes a store that has a worker's comp injury and maybe even more importantly here one of the factors in the mix of considering manager bonuses is whether their workers comp injuries to employees under their supervision this would include mr roberts so that when mr roberts heard that mr juba had an injury and was making a worker's comp claim we don't know but the jury has the right to know was mr roberts thinking this is going to hit me right in the wallet and that might explain why he's immediately doing an investigation that nobody asked him to do to see if he could prove that the injury was fake because he was personally going to be potentially financially hurt one of the company policy was that employees were supposed to report any in a possible worker's comp immediately right and that's right and that makes sense right i mean you can't that now well in february when mr jack had the injury he didn't report it and he says because the manager told him you shouldn't mr roberts was told about that february injury just a few weeks later when he became mr jew bax supervisor in april but nothing in the record shows that mr roberts ever went to mr drew back and said you know i know about that prior injury you've got to report injuries when they happened the jury could infer from this record that mr roberts was hostile to workers comp claims because it was going to affect his bottom line what's that one what's october fourth october fourth less than four weeks later less than about four weeks later and what's interesting is the last two weeks of that period were completely silent mr jew back was back at work but observing his doctor's restrictions and there's no nothing in the record to show that anything else happened vendor comes through and says your client's been talking to me about his private business i think it's a conflict i think it's a problem didn't that happen during this period on september thirteenth i think was his first day back on the job he had lunch with a guy named matt robbins from g i s and we talk about that in the brief to michael's that is one of the reasons that they terminated and it's a it's a new company that was incorporated just in august the middle of august it never did any business at all you know michael's right in their brief he opened a new business he never opened a business he best the first person he talked to about the possibility of doing background checks it said with a client that's already got two strikes arguably this is a third strike not shelter related but a third problem for  robert says why did he didn't tell us about this and this concerns us why he hadn't done any business we don't know if he would mr roberts find out about this by going on a google search right we don't know if mr jew back when he got back to work was going to say by the way i've incorporated the company i'm thinking about doing some last protecting loss prevention consultations on the side does that bother you he didn't get a chance to do that and by the way that would have been competitive with michael said all as we talk about in the brief michael's doesn't do loss prevention services what was the what was a vendor's nature of business background checks so that would have been something maybe that jew back would want to offer he wanted to know about that he testified i never asked this company to do background checks for me but even if he had that would have been a conflict and that that company was doing because the vendor was doing business with michaels or was yes they were they did background checks for potential employees for michael's i know and left taking in lover time but  simple proximity is not going to be enough to get you over the line if you have evidence that shows the employer already was the church employee that's already i'm kind of the trouble employers are already given thought to terminations for other reasons how do you handle or draco in this situation because it's absolutely clear and undisputed that as of sept number fifty michaels had decided not to terminate him they're just going to talk to him about the issues that were outstanding i thought it was giving him final morning's final morning sound like you don't you know you could be in deeper trouble if you don't hear final warning doesn't sound like good news to me it doesn't to me either but i don't i didn't see anything in this record that showed there's something other than a final warning i think in june it was a final warning to when it first warning is a final warning so there was never a this regret yes may please a court richard mcrae i'm here in behalf of the pelley michael stores inc let me just say that the undisputed record evidence shows that mr toback was that on thin ice at the time of his termination and significantly mr due back had been given a final warning for the same performance issues that ultimately form the basis for is terminations and friday august thirty mr roberts called mr jew back while he was on vacation and informed him probably a judgment error but informed him that when he returned from vacation he would either be terminated or he would be issued another final warning and on his first day back before mr roberts had a chance to communicate to m toback whether he was going to be terminated or receive a second final warning mr toback reported a workers compensation injury that was unobserved after mr due back reported the workers compensation injury michael received additional information and after mr jute to back in and given a second warning michaels received additional information first it received the report from its vendor mr robbins mr robbins reported to two michael that mr toback told him that he was starting his own consulting business and he wanted mr robbins to help with background checks mr robbins testified that the conversation made him feel quote unquote uncomfortable and he felt that it was a quote unquote conflict of interest it's noteworthy that this launch between mr robbins and mr toback took place just a week after mr back was formally warned that the company was concerned about his lack of commitment to his job there was a mcrae other there's certainly evidence that shows i think that michael's decision was not pretextual but the question is whether or not there's also other evidence that might show that it is pretext with regards to his that's him for samples of the product he's you know selling on the side yes but the record shows your honor that that was fairly early on in mr roberts tenure that was before h r had reported that there's a matter it may matter at the end of the day right but you're talking about you're talking about a supervisor who is supposed to be a stickler for the rules about outside work interfering with you know michael's mission and here is when it suits him getting some z just samples by e mail during business hours well that doesn't paint a pretty picture i would respectfully submit your honor that is qualitatively different because of the oh it might be in a jury might well say yes you're right that was well before and things changed and that's not pretextual but we're not supposed to be substituting our views for that of a jury and on everything you say there's at least a relatively plausible counterargument so for example mr jew back testified that he didn't ask the vendor to do any background work and didn't ask him for any business just asked him about  general things having to do with conducting background checks there was evidence that his other business was in active so you know there's there's a lot of other stuff there's that the temple proximity which doesn't get you over the line everybody understands that but it is a factor you know it's mr roberts calling mr jew back the day after the injury and essentially parading him over the phone at least a jury could so find with regards to his warning although he just came back from a doctor so you know there's the smoke may not be enough but this is not a pretty picture from michael's either but your honor i again i think the record is even admitted by mr toback that what mr roberts was upset about was that mr toback was  arguing with him over the content of the final warning the second final warning that he was receiving and with again with respect to the fact that mr roberts said at one point it wasn't just the content it was the whole nature of the conversation if you if you accept mr jukebox version of it it wasn't just mr jew back saying oh i disagree with the content that's not correct i didn't do that you know you're not doing the right thing by me and all that it's the nature of the conversation but there's no question that that there was antagonism and even heat in the conversation but mr jim back doesn't testify that mr roberts said it had anything to do with his injury of course he wouldn't but mr yoo back admits that mr his  you would not have survived you would have gotten to a jury right but we're here because it's a circumstantial evidence case and the question is whether or not there's enough to create an issue for a jury on pretext i just  not the non favorable parts of the record for k well let me address it in two parts one is that there are two alternative bases that this court can affirm the district court summary judgment the first is the causal connection and this case is on all fours with draco there's no question that prior to any workers compensation injury first of all there's no question that as the trial court noted mr due back relied exclusively on temporal proximity to make that showing draco says that were an employer contemplates taking action even if it doesn't take it until after protected activity that's that temporal proximity is not sufficient to make that showing in draco a demotion recommendation had twice made here mr roberts had twice recommended terminations instead in both cases the employer issued a written warning and then after the protected activity the adverse employment decision was made so that it in fact this case is even stronger than draco because this is a case where the plaintiff mr toback was actually informed before the protected activity that michaels was contemplating his terminations so that this court can affirm a summary judgment ruling on the basis that following a dry go that mr  so significantly probative evidence on his essential element of a causal connection the other issue is pretext your honor asked me about and three different arguments were raised before the district court on pretext one that the reasons for the terminations were not credible two that similarly situated employees were treated differently and three that mr roberts had a retaliatory animists toward him and the district court rejected all three arguments and the law is clear that mr toback cannot establish pretext merely by quarreling with the correctness or wisdom of michael's decision here the reasons are credible because one of the new pieces of information came from a third party a vendor now it's not significant whether the vendor was correct about what was discussed during the lunch or what mr toback says what was discussed but what was report michael's and what michael's relied upon in making its decision and mr robbins testified that he did make this report that page fifty six he said he thought quote might be doing something a little shady and robin's reaction and report to michael's supports the legitimacy of michael's concerns about this the the other part that's important is that mr due back at our been placed on a final warning for similar performance issues and this really gets to the reasoning underlying the draco decision the fact that mr due back was close to terminations for similar performance issues before he reported it and injury effectively negates any in ence of pretexts it's proof perfect of the sincerity of michael's concerns about those performance issues it would be an entirely different set of circumstances if michael said just overlooked these things and had never written him up but even after mr roberts inquired about a sample he issued a final written warning castigating counseling mr mr due back for spending company time and distracting other employee ploys by soliciting them to join ija pyramid it's not a case where these facts were known before the injury what suddenly were seized upon afterwards mr mccurry let me ask you about a different subject if you're close to wrap moore's opinion and page seventeen he makes a statement and i'm going to read it jus back must demonstrate that michael's did not truly rely on the proffered nondiscriminatory reasons citing versus fleming supermarkets kase and that was raised as an error in the blue brief it page twenty six although it misquote the statement it is did not rely and did not say did not truly rely but close but you have not responded to that in your brief at all and that seems to be a pretty broad statement that i'm not sure it comports with what the law is let me give you a chance to respond because you have standard and there is a more restrictive more limited summary judgment standard under the floor of summary judgment rule and that is as cited in those cases if there's even the possibility of an issue of fact or the slightest doubt that an issue of fact might exist that's not the rule fifty six standard undersell attack summary judgment is mandated if a party that bears the burden of proof on an essential element fails to it do significantly probative evidence supporting that element of florida supreme court cases cited in your very no ma'am i poly gys i was responding to the question but we did not what is don't leave us in suspense what is that florida supreme court case i i don't have it committed to memory but i know i know having that you're saying that that is a procedural rule in florida for all summary judgments across the board and not a substantive requirement for worker's comp tally cases exactly well let me let me  disagree i think the trial court really relied on the damon case which correctly sets out the law on him and he quote an employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for discriminatory conduct in other words if you may you may be mistaken but if it's if it's a reason that was provided to you you're entitled to at least act on it that's what the that's what the lawyers but that's not what said in his statement here and that's why there's a conflict between those two ok and i hadn't picked up on that your honor i do agree with you with the next line of cases that the employer could be wrong it could be wrong on the facts it could be incorrect even in its its judgement as as long as it's not relying upon unlawful or protected religion the judge whittemore says back must demonstrate that michael's did not truly rely on the proffered nondiscriminatory reason and there was a jew back must demonstrate that well that that's a different twist to well i think i read that as a statement that undersell attacks he bears the burden of producing significantly probably have evidence to establish pretext questions this is the second argument on pretext was similarly situated this court has said repeatedly that you have to be similarly situated and rip all relevant respects to the courts are not comparing apples and oranges none of the other employees were similarly situated to mr due back they didn't report to mr roberts they were not in the same position there was no evidence that they were selling to coworkers there was no evidence that they were selling during company time there was no evidence that roberts michael's had a concern about their commitment to their job or their use of their time but this is not at this protest movement case like normal disparate treatment cases right it's a retaliate on the worker's comp issue it's a retaliation the like i don't think you have to your honor but i think in a retaliation case the fact that someone who similarly situated is treated differently would support an inference a pretext and i was i argued here yeah i don't i don't disagree with that i think i think you're right about that that it may be important i'm just not sure that it's necessary ok to give you if in other words if you have the right set of facts you may not need a comparative or in a workers comp retaliation case  finally i agree that the characterization that this investigation was sudden and unusual is is not the record not supported by the record mr mr roberts began investigating mr due back shortly after he became his supervisor in fact only a month have to become the a supervisor yes for twelve months of his expense reports and mr roberts testified that it was and is page two twelve of his deposition that they always look for videotape if there is an injury ported and oh i know we've asked you some questions but you're a minute into your i pod reza light if you want to wrap up you can go right ahead i would ask the court either on the basis of draco and of and the failure to to establish the causal link or on the failure to establish significantly probative evidence a pretext to affirm the district court's ruling on the retaliation claims a rest on the briefs on the other the other issues or i thank you very much thank you and to try to respond to some of the issues that were of course just discussed starting with the issue raised by judge vinson about the courts that the trial court statement that the obligation was on mr jew back to demonstrate that michael's did not truly rely on the proffered nondiscriminatory reasons why he does have a he does have a burden in that regard right with regards to a pretext yes to come forward under the mcdonnell douglas stent that's correct he does have a bird to come forward with evidence or inferences that the jury could rely upon to defeat pretext but so saying that the whole burden is on jew back it's wrong but the other problem with that line of reasoning by the court is that it overlooks what i said at the outset that the workers comp retaliation only needs to be a substantial reason one reason for terminations the court could properly rely on i mean if i'm sorry the defendant might be relying on other grounds that are appropriate grounds but what it may not do is partially rely on the in an improper ground of worker's comp retaliation in the court seemed to overlook that and really decided this case on the wrong standard just did not seem to get that and how that and the origin to commit to that we cited that case i don't know it's also based on florida workers comp what's the supreme court florida supreme court supreme court of florida case that you're relying on for that substantial reason is there one no there isn't one is it the the second issue our address is and i think your honor touched on it this is not a disparate treatment case so that when michael says that were asserting similarly situated employees being treated differently that's not true the the  most of the evidence that other employees were involved in businesses that competed with michael and michael's allowed it is really just to allow the jury it could allow the jury to infer that if michael's tolerated that then we got to question whether michael's really cared deeply about what mr due back was doing here it supports pretext the concept of pretext that the employer is misrepresenting lying about why they terminated the employer employee as the horne fisher case points out and we put the site in our brief or the quote in our brief we can't expect the employer to just announce that he's terminating an employee for an improper purpose right that it's easy for an employer to make up performance based reasons we have to look at the whole record and apply our comm our complaint there is no doesn't say that and says the trial court should evaluate well and summary judgment the truck court should evaluate whether the plaintiff has offered enough evidence and inferences that a jury can permissibly drop that would defeat pretexts but the ultimate determination and consideration of the facts on both sides and most importantly in a case like pretext who's telling the truth and who is not has to be submitted to a fact finder where the plane of has come forward one big difference is that of the worker's comp claim it need only be a substantial basis for the terminations not the entire basis to go back to roberts when the jury being able to deduce or to infer from the telephone conversation on september sixth that roberts was agitated and very angry the question of jurors might wonder and truth be permitted to wonders why couldn't that conversation wait i couldn't that way to day or two it really shows a very angry roberts and when i we coupled that with how this may have impacted his his wallet directly the jury could infer that roberts was very angry about the worker's comp claim and he was the protect the main protagonist in the terminations decision is the one that pushed for the record this record shows that and your honor mention that mr roberts asked for as he just sample himself by sending an e mail to mr due back interesting lee during working hours well it's also true that mr roberts did not share that fact with the other decision makers at michael's with regard to the terminations process and i agree that that's he's a little bit dirty in that respect that it doesn't look great for michael's and it looks of two faced in a sense well michael roberts also said it's kind of something else the jury could wonder but he said i didn't really like this he just projects i didn't think they did anything for me we could all wonder if he'd like them if this were the one come out differently and finally calling the investigation not a new investigation isn't fair on these facts mr roberts was investigating facts he discovered on september fifth he was investigating the injury and the things he did in this new investigation related to something that just happened referring back to an investigation you did about expenses six months earlier that's not part of this investigation he launched a new investigation because he was very upset the jury could find about this injury all right thank you both very much thank you