our final case this morning is smith versus cheyenne retirement home best there's number seventeen dash eight zero five five held so you may proce as ready says submitted her charge of discrimination up to the e e o c in may of two thousand and fourteen she did not know why she had been subjected to adverse employment actions against her including intense scrutiny disagreeable conversations with her manager i'm being terminated for false and unreliable reasons she filed her own charge of discrimination was very detailed in describing what happened to her she mentioned and she said i have had previous experience of having filed charges of discrimination in two thousand and twelve and this is what has happened to me in the last few months that charge of discrimination that has been filed by this it boy he can it was appealed and there was a finding that we were not responsible it cost us a lot of money and time and we disparate discriminatory treatment occurred in september two thousand and twelve when demoted from being a shift leader so i don't i don't see any reference to a previous complaint having been filed that's what you said in your opening statement well it was a previous example in the in her two thousand and fourteen charge of discrimination that she had filed she had and that protected activity is having made a complaint about discrimination and i don't see anything in the document you're talking about about a previous w i think i know where you're going and you can have seen you on that course but i just want to pin down whether you're making any claim that this document references a previous complying obviously an straightforwardly set forth that gave the complainant information as to why she was being treated the way she was scrutinized about her how she set up her dining room what she was doing with the refrigerator she made complained about this and shit that was given short shrift she called the hotline down to a matter of credibility as to the cause for terminations the employer says i told her we told her to be in the up stairs dining room was in the its mind when miss sniffen was terminated and that was those previous charges of discrimination and so it's clear that complaint and then she started to see the retaliation adverse informant actions taken against her she didn't know why and t that could be attributed to the evidence in her behalf our first i'm proximity in time now in trying these retaliation cases there's two kinds of evidence direct evidence and circumstantial generally in retaliation cases you have to rely on circumstantial evidence and in many many cases they say proximity in time is something that should be considered there are opinions which rent for certain periods of time as being not  enough to cause an inference of retaliation alone but they say you need to have additional facts in terms of whether or not this part similarly in time is the circumstance is relevant and here we have additional facts first of all did on most days the one testimony of the manager of the defendants that he had met with her that morning even had told her that she needed to and so when you when you're saying that somebody had no proof of insubordination mr oliver was told it was insubordination by mr hebert right so h and i told her i asked her why she didn't go up stairs and she had no verbal response we're smith says that's meeting in did not take place there's a direct conflict of her till flack disputed material fact is whether or not she was given an order that she failed to follow this is the this is the median of a jury lot of disagreement as to the law and as to the underlying facts of this  the complaint speaks for itself as does miss smith start to discrimination as the court pointed out earlier that the charges discrimination never included any reference to the earlier twenty twelve charge  brief and in the argument this morning and the fact that the employer references the previous charge and indicates that incurred thousands of dollars in legal fees why wouldn't that put the agency on notice that maybe there is a retaliation issue involved here but i believe what you have to get earlier charge it seems to be complaining about having to do with thousands of dollars in legal fees to fight the field why doesn't that suggest some underlying resentment about having to deal with her previous charge and the least  give the e e o c some basis for reasonable investigation of her retaliation client as to that point i believe it may be an indication of annoyance of having to deal with another claim that wasn't submitted in the context of what i meant by saying that they are making that statement was that this is a repeat of mrs smith's making unfounded complaints e e o c media will consider that when it's determining whether there's credibility  well no i understand there may be different ways of reading this but isn't that the point that there are different ways of reading this one way of reading it is to kind of raise a red flag with the e claims not was put into the response not up the responding employer's position statement in that case there was a reference determination in the e e o c complaint there's just continuing the timeline  respondent also referenced this plaintiff's terminations point of then tried to bring a wrongful termination claim but the tenth circuit in that case said this is not sufficient there were not the allegations in that claim that would give  certainly an extreme hypothetical i know what you're taking the position that there's just simply you're quoting boston to assist taking the position that there's nothing the employer is say that would link a current e e o c complaint to a prior this position statement which i don't think is warranted in this case but even if you were based on that that would not rope in all of this by your conduct i think the context of that statement is such that it's beyond the not represented by counsel they're operating process and they're not going to be able to dot all the i's cross all the t's why shouldn't the smith given some leeway in that regard in terms of the exhaustion issue but then i agree that this is not a formulaic requirement and the courts have been clear on that that this is the process usually completed by the lay persons and so checking the right in april twenty first for the fourteen all the facts in this and this e e o c charge deal with an entirely separate set of people set of circumstances set of occurrences and woodworker twenty twelve and part of the purpose of these charges of discrimination is to put the employer on notice of the charges against that here the employers not under any notice that mrs is that mr smith is claiming this twenty twelve e e o c quitting has any ever really explored other than the one statement and in the position paper with position statement but you know i was going short i want to touch on a couple of those summary judgment issues as well so the district court also found that even if there were jurisdiction in this case there are two great separate grounds for summary judgment the first the lack of a causal connection and that means there has to have been some evidence linking the protected activity which if there was just issue of pretext and understanding the timeline is that the one point i want to make on that is the issue is not really what actually happened whether mr heppner told mr smith but he went over so mr fail to if you want if you want thirty seconds you got all right thank you thank you thanks to both of you for your arguments case will be submitted counselor excuse this court will stand in recess until nine o'clock tomorrow morning