you all look ready to go i know you're familiar with our lighting system mike some effort to enforce to the extent you see the red light on and you can walk up there be great much but nevertheless the lower court granted summary judgment in its favor miss bogle was the team relations manager at kenya she lied several internal discrimination complaints based on gender national origin and race during her employment when those concerns were not addressed she filed a charge with the e e o c on november tenth two thousand and ten for national origin engender receive the refusal to sign a document that had her waive her right she was when she agreed to sign the document she then sent one part of that document though she was part of her job deedes were helping the company and  having other employees might compliance that is her job was to try to work with employees try to settle things and non litigated fashion and they were concerned that given her own complaint she might be going out and soliciting compliance  who do you see anything untoward about them asking her not to violate an essential job duty which is we want to have this few complaints as possible instead chinning up complaints do you have any problem with that being a condition of the agreement your honor i would say that her job duties were not preventing litigation her job duties were investigation of internal complaints that may occur and investigation of the charges at the direction of legal you're saying it's well let's let's say this if you have a lawyer in a company in the lawyer soul in terms of counsel sol duty is to deal with employ compliance and to try to avoid obviously employers want to avoid having people follow legal actions against them and you find out that the lawyer actually instead of doing that is going out and trying to encourage employees to file complaints this is somewhat akin to that you think that that lawyer and your client have a right to go out and try to  calls but not the participation calls my client was participating in a protected activity and that company does have an interest in preventing lawsuits from being filed but i would argue that in this situation that that was not ms gogol's job dut was the protected activity to which you for your honor my client filed an easy charge on november tenth and then mr jackson had a mistaken belief that my client had assisted another employee with filing a charge of discrimination which is covered under their beds as defacing cause of title seven what is the specific activity of your client that you were our rights so with respect to her charge that's certainly understandable but with respect to the charge were misled better i'm not sure you've quite responded to judge the december third document she was allowed to come back to work on december tenth diana lead better file the charge of discrimination against kiya kia receive that charge on december twenty third two thousand and ten on the summer twenty fourth two thousand and ten the plant shut down for two weeks and reopened on january the fourth on january the seventh two thousand and eleven randy jackson called mrs goble in from vacation to ask her about misled bettors e e o c charge during that meeting and my client denied knowing that misled better was filing a charge but she was accused of collusion with misled better and she was accused of violating the december third agreement there in that time and they promptly suspended her for a second time then she was terminated on january nineteenth two thousand and eleven are under title seven admit that fired and terminating an employee for participating in protected activity would be direct evidence of retaliation except for ms gogol's job duties we argue that a person's job within a company should not be consideration for whether or not they are protected under title seven as the answer it's as the statute covers any employee any member in any manner of participation and that to do so would be and to do so would rewrite the statute as it is mr goble was always at every time following policy of kiyo when she lodged her internal complaint she was not disruptive she followed procedures even mr jackson testify that mr goble never did anything inappropriate at work and was always very professional the case is relied upon by  procedure the issue here is one of their procedures was if you're and by a high level human resources type of fishel such as she was you don't instigate complaints among other employees that that's where the rub is here  there was never any evidence he was instigating other employees to file complaints of discrimination and that that when the lower court made the decision to believe mr jackson over goble that it was a credibility issue that should have been decided by a jury you may have to stop right then and there when you've got this internal very deep internal problem and the employer doesn't have the right to say i've looked at this and i believe ms go you are doing that which you should not be doing us just stop everything and have a jury trial and that's what the lawyers post no your honor i would say that the employee should at least engage in an objective good faith investigation before automatically assuming when they receive an ego see charge that someone is recruiting others to go against the company i would say  and that that was the issue there and i would argue that ms gogol's job was not preventing lawsuits ms gogol at all times had told had told legal and mr jackson about any complaint of violations that she had reported them that it was up to mr jackson and legal to handle those those complaints and to you know i would argue that it was legal job to prevent may please the court and king half of amicus u s equal employment opportunity commission i would just like to start by addressing a question that came up earlier about go with goggles protected activity of course one man  because the statute refers to assisting in making a charge as participation and this court recognized and total systems activities related to filing a formal charge may be protective participation alternatively it would also qualify as opposition under under the crawford decision from the supreme court which recognizes that as this dean a another employee may be may be protected to making a charge and assisting as falling under the participation class as for the causal link between goebbels participation and her terminations and counsel already describe some of the events that that trace a causal link between google's charge piling and her terminations and soon after kill learned of the charge she was presented with  the agreement that was retaliate tory in nature because it prohibited her from making negative statements about here or discussing her complaint with t members those those prohibitions would violate title seven to the extent that they would prevent her from engaging in opposition which would be protected under the statute as soon at the same time the agreement was suspended the first discipline she'd ever received and then only two months after her terminations i'm sorry after her charge finally terminated her there's also a strong that would be part of her perceived perceived claim the crime that she was perceived to be aiding in protective activity oh but to clarify your honor that would go to the perceived protected activity and her terminations and that would be assisting supposedly assisting lot of better with the charge in that case we have admission from thea that that was the basis for goebbels termination the decision maker testified that he fired her because he thought she encouraged and solicited other team members her terminations letters had the same reference like better start so there's a direct causal link but let's assume for a minute that there's a difference of well let's assume them first as to her comply and go back a bit after her claim is filed and they talk to her and they have this agreement they don't fire her immediately instead they give her a bonus and a vacation and do you see any problems with that and terms of showing that they weren't going to fire her based on her kline and fact that their firing was based on what they perceived as as the instigation of other people the lines your honor i think that you know again it's a jury question so even though it jury maybe would conclude that he is correct they might also believe go go's version of the facts and although she is terminated january nineteenth when she receives the agreement december third the plan is closed for a period of time dory for the holidays and she's actually suspended again on january seventh so that is a little bit more than a month after the agreement with the plant closure so t he temporal proximity is actually quite close in that case and i see my time is expired so thank you your honor thank you jonathan martin and along with co counsel jo marie we represent key motors manufacturing georgia the employer defendant in this matter we respectfully ask this court affirm the ruling of the united states district court for the northern district of georgia that k in this case has no application to this matter the manager will stand for the basic proposition that if a human resources professional is tasked with identifying and bringing forth discrimination then in so doing carrying out their job duties they are not engaged in protected activity that has no application in this case it is our position that she was not terminated for doing her job rather she was terminated for not doing her job as a result all of the analysis in the briefing that involves the manner drool is it is an apple can or can i ask you the you say she was fired for not doing her job in the terminations letter you say  you referred to diana lead bettors diana lead bettors reference to her discrimination claim not being investigated is i mean that's in reference to her claim about the president having some inappropriate relationship with an employee mr on and miss morris you know that is in reference to the perception that the employer had that she was abusing her position of trust rather than know the senate's about dian leadbetter filed a charge of a part of this charge a loser claims that the company including human resources did not properly investigate her complaint so it in that that's what led better was complaining about that human resources had failed to investigate her complaint against mr on and so ok but wasn't wasn't ms gogel instructed not to investigate that i mean that was her testimony anyway her testimony was that she was well her testimony was that she was initially told by randy jackson not to investigate and then she was told by kevin kim to conduct a secret investigation and he later told her to discontinue that investigation stop the investigation do not gather any more information and destroy all information related to anything i had and so it seems so on the one hand her supervisors in striking her not to investigate and then on the other end her terminations letter she's she's been told she's terminated for not investigating so which is it well she was terminated for not working with diana lead better to try to avoid litigation that was the job that that's another sentence but you know one of the one of the reasons given in you know my job is just to try to get your your case you know understand your case and i don't understand that instruction to her i mean that in her term a nice letter saying you didn't investigate and then when you follow that down she was told not to investigate so i mean was that really the reason she was fired or one of the reasons she was fired and if so how do you fire her for doing something she was instructed to do or you know we were respect for  lead better at a number of complaints about things that were going on at the company and over the course of a number of years they as she went to miss goble who was the head of team relations in an effort to try to resolve and address those complaints it's our position that is part of investigating and if the entity the uncontested testimony from mr goble is that she was tasked with investigating it and then making recommendations to randy jackson the key decision maker and that was part of the problem is that miss go that was not providing adequate information and the perception was that she was providing biased information because she had lost she had it began she had begun to put herself interests ahead of the corporate interest which was a problem for somebody in a confidential position of trust oh you heard through counsel from the e e o c we could clear that assisting misled better in her charge was protected activity let's assume that she was engaging in her own or she was complaining on her own behalf in that case you had a plaintiff who was complaining on her own behalf but she was doing it in such a destructive manner that she lost her protections so we would respectfully submit that the balancing test that was used by the magistrate judge as well as used by the district judge was the appropriate analysis and there was appropriately applied in this case but you don't have evidence here in the mr jackson ms go will never was disruptive i mean this in terms of you know disputes of fact and the record you're out of it what is uncontested in the rocker is the perception that she was being disruptive and what i mean by that is this if you look at miss go but not mr jackson right it was mr jackson's perception he lost confidence in her abilities to be objective based on the facts that he was aware of but he didn't say she was disruptive or i would submit texas city she was then i mean that was my understanding of his testimony well i would submit that certainly encouraging employees to participate in her last it would be disruptive activity and that certainly is you know that's actually consistent with the law and the jones case jones versus flagship where they said in that case that the employee's advocacy on her own behalf and the exact quote is joan's right to express her grievances and promote her own protected activity i mean the next reason given in our terminals and letters that see didn't discourage ms lesbo lead better from you know go in external as opposed to internal or something to that effect was in the termination letter and now we've got declarations from both of both parties that that was not true so what about this perceived protected activity claim yes i think that's the best addressed by this court's precedent seeders purcel rot where that where the court has held that it is not whether or not the employee is actually engaging in misconduct that governs it is whether the employer reasonably believe that the employee is engaged in misconduct and that's where i think the facts here are instructive your honor your misc gogel testified in her deposition they counsel argues that the magistrate judge and the district judge made him permissible credibility determinations but even if one discounts the testimony of randy jackson the testimony of the thirty b six witness and the testimony of and goes directly to how she describes her job she described her job as conducting investigations are the direction of legal and if they involve managed that she had to work closely with the decision maker and we would invite the court's attention to her deposition testimony which is at the docket at one seven tane and pages one hundred three one six where she describes her duties she said that she generally provided the information and the facts discovered as well as making recommendations to mr jackson when investigations involved both rank and file employees as well as management employees now your honor against that background we need to look at the facts that mr charge and that was very much her right however what was not her right was to take her special position of trust and then begin to gather evidence and attempt to  encourage employees rather than using the company's processes to step outside and join her lawsuit and there were three red flags that mystery mr jackson had within a month red flag number one she filed her c charge within a week of the position statement being for being submitted as judge carnes pointed out they asked her to sign a document the document did not ask her to give up any of her rights this case is distinguishable from the circuits present and goldsmith where the employee was asked to waive his right to a jury trial the spade minute self that was given only reinforce her job duties you cannot use your confidential raise you had a lawyer she's the i don't want to sign this without talking to my lawyer and then she signed it yes so i mean that's certainly it would give most managers pause her refusal to acknowledge her job responsibilities but there were two other independent things that occurred within all of the lawyers and georgian they're out on the border in alabama the coincidence that miss go this miss could lead better had complained and gone to miss gogo for years and with a matter of weeks of muskogee filing her e s c charge all of a sudden this other employee files another charge using the same exact law firm that's the second red flag that gave him pause i think more importantly you know as miss carter described the sequence of events the morning after winter shut down one of mrs goebbels subordinates came to randy jackson first thing in the morning you know in so doing whistle blowing on his boss he put his own job in jeopardy and he said you know mr jackson i want you to know that miss gogel is the ringleader and trying to attempt to get employees to join her last thing in fact she has already gotten to diana lead better so we have three independent things that pat caused him to cast doubt on her objectivity and that's really what this case boils down to should she be a trusted to be objective in investigating ego charges so why isn't this a jury question this is a simple legal analysis rather than a jury question we would respectfully submit but you know just to follow up on justice scales question i mean that the the idea is that there's evidence on both sides you know i mean whatever you perceive her to be doing she says that's her right to do it and i guess your response to those yeah but the way she went about it was disruptive in you know wouldn't that be a she says no  disruptive and there seems to be evidence on both sides of that i mean why in that a jury question well your honor what we would submit is this and that goes back to her me to evidence you know the law of the circuit has long been that title seven's protections are not absolute and that an employee can be so disruptive in carrying out their opposition that the protected activity so interferes with the performance of his job duties that that probably a better case that is almost on all fours is this court's decision and ham in the hand decision what we have was an employee who was not the ultimate decision maker however according to the case her duties included investigating instances of alleged discrimination filing written reports with her findings with the appropriate supervisory personnel and recommending appropriate action for their final approval and disapproval that is virtually identical with the responsibilities that miss gogel was intrusted which is why it was important for the company to have her in a position where they could trust her to be objective and not put her own self interest head of the interest i mean  ham according to the opinion gay internal investigative reports to the campus newspaper i mean it's just not what we have here is  well what we have here your honor is our employees who were are encouraged to go to team relations with any problems and complaints that they had and the head of that department the boss of the department appeared to be encouraging those individuals to go outside the company and file a lawsuit against the company understand your argument thank you i see my time is up thank you charge which would prevent her from being able to any to assist the e e o c in the investigation of the charge it wasn't just about her job duties it says i will not seek access to any files or documents here we have it shifting reasons again during the thirty six testified that it was not about performance and it was only about the alleged perceived perception that she was solicits hating sitting other members to file charges i would submit to the court that regarding the investigation of president on and mrs morris that she investigate it year it couple years ago and not only was she told not to investigate it but that misled better started complaining to bob tyler which was gogel superior and mr tyler at that point before misled better filed her charge reported again to randy jackson and illegal that misled her not complained about any gender discrimination and that she didn't know she was going to file a charge i just wanted to be sure we were kind of all on the same page that that was what that reference was that in the terminations letter to muskogee where  you didn't investigate as misled betters complaining that h r didn't investigate her complaints that's what that's what that was a reference to it sounds like everybody agrees that's what those about here ye mr martin references it's the other way around ronnie jackson came to him and said we've already suspended tyler for filing his start if you can give us any more information almost goble will look at doing the same and promptly after her terminations mr williams was given her job these are all issues of fact that a jury should be able to hear you see the declaration from misled better who adamantly denies that she was solicited for anything in that miss gogel did not as and mr jackson we proposed did not do an independent objective investigation thankfully i just ask you heard mr martin cite us to the him case why it isn't him control  was improper and in the ham case it was about opposition more so than participation and we are arguing here that if there is a balancing test it only  appreciate the argument well done