any assertion of whether it was in good faith second the lower court turned on its head causation well and found that essentially temporal proximity crime of fish case third lower court construed adverse action much too narrowly for a state law minnesota whistleblower act in minnesota human rights act claim losing the forest through the trees and fourth the court construes facts in favor of millennium without considering the fact of blatantly violating which in our laws cheating housekeeper sent to mind her own pocket they said she created her own form and she directed housekeepers to under report there in time so that she could increase their own bonus will guess what happened in response to summary judgment to those three persons who said that ms mcgee discouraged them recanted their declarations when they were provided assistance from an interpreter alvarez the employer argued honest belief in its moving papers so the employee had a chance to respond in its responsive papers to argue good faith to submit evidence that it was there was inconsistency submit evidence that it really wasn't a good faith honest belief need never got that opportunity instead the issue of honest belief was never squarely before the court was first raised in reply we asked this court not to countenance that aberration and not to allow good faith belief to be used as an excuse when your stated indisputable legitimate nondiscriminatory reason doesn't hold water let's talk about even though the issue wasn't squarely before the court we know that there is evidence in the record that shows this was not a good faith belief ten years of the same practice do others doing the same practice that nikki did and let's talk about the shocking recovery that was supposedly made remember nikki gets kicked out on vacation on the twenty first of tobar after on the twentieth of october she said i would forfeit my vacation but nonetheless they kick her out and go microscopically inspector workspace and supposedly shockingly discovered this wage an hour violation that's been going on for ten years look at what simmons did there on the twenty seventh he's been in this position for six days digging through her work area and he says that the housekeeping department is working excellent he says with her some mind minor opportunities for improvement but what happens to the next day the next day h r comes and meets with simmons the same h r to whom i had complained for years about illegal treatment and by nine fifty five the following day he followed the direction h r told simmons dig deeper and in response simmons found people quote willing to speak to h r about  this is not an honest belief this is not good faith this is a dirt digging retaliatory investigation and it's based on hearsay all of what simmons said is based on what an assistant manager is not true that was in the submissions in the courts totally disregarded it in fact the only investigation that set forth in the supplemental appendix submitted by the defense shows that there's tons of inconsistency in the in vestigation they did into this supposed shocking investigation they came upon in october the same person didn't question everyone the same person didn't ask the same questions the same questions were even ask never had the chance to deny that she was doing anything wrong and she was following direction they found that all in this lawsuit the second and third errors by the lower court misused temporal proximity as a weapon and adverse employment action analyses to narrow the framework let's talk judges about what we have here we have a forty one year employee that is a long time for the last three years of her employment from november on my thumb to november of eleven on my phone to november of fourteen on my pinkie she complained multiple multiple times and experienced a lot of bad stuff even if you only consider what's in my hand that is temporarily proximate in a forty one year employee's history that is a small time a small amount of time and what the court also failed to acknowledge and used the law to even rate is this time period that's at issue it was not couple of single discrete incidents it was a lot of different things coming together so that the totality of the circumstances should have been considered but what did the lower court do she threw the facts and pulled out everything that was an adverse employment action enough for her defining adverse employment action as that which is the terminations of that which is a reduction in pay or that which is a big removal of vacation but that's not what the whistleblower law says and that's not what the minnesota human rights  whistleblower access it's that which dissuades an ordinary person so not only do the court slice through the facts wants to pull out everything that wasn't adverse employment actually enough for her she sliced through it again to pull out everything that wasn't two months apart of temporal proximity in there between my pinky and my thumb starting in november of two thousand and eleven when she refuses to testify falsely by january of two thousand and twelve she is being nitpicked this continues and teller terminations her last complaint is six days before she's terminated in november november thirteenth of two thousand and fourteen which is terminated on november nineteenth of two thousand and fourteen and what do we have in here the very first most egregious fact that the court ignored is the lawyer yelling so she originally says i'm not going to lie she's told we don't use supreme and standards she testifies yes we do then in march a lawyer calls her up and says this there are no freeman standards she testified he's yelling so i'm obviously not anywhere near as loud what do you want me to do you want me to talk to do you want me to call the president of the company and tell you there are no freeman standards lawyer yelling dissuades employees need picking dissuades employees those weren't the only things though they told her you're going to be laid off during the renovation the renovation that was caused by her testimony the twenty three million dollars that had to be spent on fixing up the hotel because they didn't follow the freeman standards they also the court admitted one ever some climate action was that for every day she works she had to take every forty she worked she had to take a fifth day of vacation well there's a lot of other things that happened in that window of time between december of two thousand and twelve and april of two thousand and thirteen when this renovation is going even the brand spankin new front desk person are going to have any guests during renovation but the front deck person was allowed to do executive work you know what ms negate was forced to do fulling cleaning counting towels then when they were trying to set her up to fail during that time when she didn't feel in april of two thousand and thirteen what happens is so we have reverse who's the guy who directed her to say we have no frame and standards reversed gets promoted from her boss to a bigger position he then writes an email in april of two thousand and thirteen when they haven't been able to force her to feel to the director of renovations and says hey i want to inquire whether my replacement is taking control of especially  model the two people who testified the hotel used to freeman standards that resulted in a twenty three million dollars settlement to fix the things that should have been done in the right way and did that taking control happen by the end of two thousand and thirteen neufeld her new manager was microscopically inspecting her work watching employees in the linen room watching employees in the locker room watching her employees in the laundry and no one else's employees watching people punch time clocks the record is undisputed that you felt watched time cox for a long time and you know what she did she sent a memo and october of two thousand and thirteen saying hey i notice people are checking out before the after they've changed into their street clothes and their check in before they change into their other clothes so essentially neufeld is directing the plaintiff to watch to make sure that the time records are accurate so when the  people who signed on the sign in sheet when you stop working and uses that as the payroll that is not a scheme to defraud that is doing exactly what she was told on top of that they essentially forced her out on vacation do this investigation when she's gone and the investigation itself is inconsistent it's arbitrary she is not asked questions in the way others are district court got to some very summary judgment in multiple and correct and overlapping ways but in the fall of two thousand and fourteen millennium discovered under spirit evidence that the director of housekeeping in minneapolis was willfully violating federal wage and hour law by cheating housekeepers out of their time work not a brain promise of gabe's case throughout this has been that she is a whistleblower under the missing minnesota whistleblower act because in two thousand and eleven she supposedly refused instructions from her prior manager robert rivers to testify falsely relating to hotel renovation issues and so they repeatedly call rivers a driving force in the november twenty four thousand terminations because they tie rivers from that twenty eleven event to the twenty fourteen terminations for causation purposes three years later but it's a complete fiction your honor based on zero evidence as a result rivers was not a decision maker in two thousand and fourteen he left the hotel went to boston in early two thousand and thirteen nineteen months before this terminations and he basically disappears from this case he be you know has no bearing and have absolutely nothing to do with that termination s and you have three new people who end up becoming the decision makers on this terminations and of course you know they ultimately never deposed from this river river so if we focus on undisputed facts in front of millennium when it on this now he test fight he was given no instructions he task force at this hotel and others previously he went and he noticed things about the department we have the degen investigation covering housekeeping and all other departments the company went in and they pulled everything apart to see what is happening where as it relates the time punches and then you have the crane interview of mr mcgee which was the chance for her to tell her story and when she has that opportunity to tell her story the only reason she can say for why she changed time punches one hundred seventy eight times is that these people didn't know military time what that has to do with punching out when your work is done i really don't know  but of course they don't know that that time clock is being backed up and and i could direct your honour's to i think it's s a three my supplemental appendix it shows in the gab o'clock and it and she's just one of forty six housebreak keepers who were impacted and who the company showing its good good faith and honest belief here ended up writing out checks to all of these people to mitigate the risks that have been created negi so she's just one of forty six but if you look at that document you'll see in the guid changing time punches and you'll see the amount of time it being sixteen twenty six is one of the  times backed up to sixteen hundred so she still has no answer for her own sworn testimony and undisputed evidence that came out of her own mouth that her deposition now in her reply a brief negate tries to undermine her own deposition admissions by claiming she's an egyptian immigrant who's second language is english so essentially they say that we're not allowed to rely on the summary judgment admissions where she repeatedly agreed with facts that show that she was violating federal law but she was a senior manager in this hotel for forty years she spoke fluent english she didn't have any problems with the deposition questions when i was getting admissions from her and now you know that one of their main arguments in the reply is that we can't you know we need to undo the dispositive deposition admissions because english is her second language absolutely the court should be able to use the deposition admissions  take them at face value at summary judgment the critical inquiry on the various claims you know and there are six of them so it's hard for me to jump through all of the evidence and there's never really been a cogent list of what the  all of the protected categories are and how they string together whether it's a minnesota human rights act claim or a minnesota whistleblower act claim but if we look at the information that was before the employer at the time and what they honestly believe they would go over on the sheet and write down four o'clock and he'd say why are you doing that and they said well we can't have overtime so that was very concerning he literally stood by the time clock up when they were coming in and and they were putting the wrong time down on the sheep after punching out at four fifteen for twenty so then he reports that to senior management and he sort of disappears the company then does that investigation across all the partment and they find some minor violations in other departments they find that she's using this form and sure an h r person said yeah she's used that form for a while she testified that she drafted that form and if you actually look at the depositions h r the the new h r gave her a new form that was compliant so that when people signed it they understood that their time would be backed up and it would be employees who approve time punch changes that was the form that she says she still had permission to use this form but let me be perfectly clear on that form there is nothing there is no evidence that anybody said that you could use this form to back people's time up to take away time that they had actually worked and that's what was actually happening here you had people who didn't get their rooms cleaned until four fifteen four twenty they come down they punch out and you know then she's going in one hundred seventy eight times and moving their time back to four o'clock that's blatant wage an hour violations and that's something for which the company could could get sued and had legitimate concerns about that and that's why they issued all those checks so that's the information that was before the employers week and then we have that janice crane interview as i said where miss crane came in another outsider from one of the millennium hotel in chicago she came in mission to gabe secretly recorded that tape recording and it's very clear that she is given the opportunity to explain why she is changing all of these time punches and her only excuse is that the housekeepers don't know military time what that has to do with anything i really don't know and we also have them growing out of those investigations not just the forty four checks that were forty six checks that were issued we also have discipline being meted out against the  folks in other departments who had some minor violations and you know there were i think forty or fifty in all the other departments but there were one hundred seventy eight with miss nicky and listener gabe was the only one who had a payroll bonus she testified that having her bonus linked to pay for all was unfair because it was very tough to meet the payroll bonus and so you know she hadn't she had a basis to want to to cheat these housekeepers out of their extra time so if we look at the six legal claims he essentially have a lawsuit that says you know i was termed in two thousand and fourteen for being a whistleblower based on something in tw eleven and if you don't believe that i was terminated from agent if you don't believe that it was because i went out on ethanol a leave and if you don't believe that not have these other retaliation claims the district court dismissed  claims for several reasons including no direct evidence m h r a preemption limited adverse action no causation and no pretext and given these dispositive failures the court also  declined to rule on questionable protected conduct and also statue of limitations failures because we have two statute of limitations that work here one being under the minnesota whistleblower act which for refusal claims as the supreme court  hinted at in the ford case there's both refusal and opposition claims but the opposition claims are six years but the whistleblower act claims here are the refusal to testify falsely in two thousand and eleven so that should have a two year statute limitations and certainly the minnesota human rights act has a one year statute of limitations i could go through the why there is no direct evidence here but i'll skip ahead to the question of adverse cites the same standard about you know for adverse action of dissuading a reasonable worker for making a discrimination claim so she applied the proper standard now burlington another case also still say that petty slights and minor annoyances aren't insufficient at the hearing on the summary judgment one of their main adverse actions claims claimed was that she had to fold towels this manager of the housekeeper department during the renovation was forced to do menial work of a folding towels and therefore that is adverse action when i mean everybody has to fold towels to do their job  theoretically you know we talked about that there were issues relating to somebody didn't somebody didn't wear a hardhat but but she was the only one forced to do it or series of things that she claimed to be adverse actions one of the things she claimed that was adverse action was that the company hired a couple of illegal immigrants and that that was done to retaliate against her and that was adverse action of course then she admitted that once h r figured out the issue the the employees were gone within five days so it was just this litany of minor things throughout you know that that i really think do not raise rise to the standard fundamentally they started with with the case you know of course you have an adverse action and two thousand and fourteen on the terminations but there's really no adverse action between now and the court presume the district court presume that there was also an adverse action in two thousand and twelve when during the renovation she had to go from five days a week to four days a week well there are no rooms to clean that point in time there's not very much for housekeeping to do and certainly everybody else in the housekeeping department was laid off but she was allowed to continue doing your job her job were going to any other management level people laid off in that period or i don't usually follow your honor i think it was just housekeeping but but if we're going down that path one of the things the district court should have done was apply the statute of limitations to that then because for for that alleged would be untimely not on the question of causation and temporal proximity to the court here did not make temporal proximity a separate element of the claim the court simply said that you know you don't have temporal proximity here it's three years but then you actually have to have evidence that there was an intent to retaliate and that's where the whole notion comes in of the honest belief of  employer here and that is the information that was in front of the employer when they when they made the decision and really you know they relied so heavily on this notion of rivers being the chess master behind the scenes that is making everything happen well rivers is gone i mean if you read their summary judgment relief brief below it's all about rivers and how he was trying to get everybody to to go after  neves but the record will show that rivers completely disappeared from this case so he's like this phantom in the background of the case who who has nothing to do with the terminations the most they can point to is this take control e mail from tw thirteen which doesn't tell the new manager to take control he just asked a question and somebody taking control of mr mcgee and i missed and gave testify that you know she was a strong personality so of course you would want to know is is the new general manager taking control of things including of miss negate who who you know based on the record with was a difficult employee i see my time is up to the court have any questions relating to any of the friedlander has come down in between the whistleblower act on its face says as the amicus brief points out the standard forever some climate action is that which might dissuade a reasonable worker this court did not apply that standard she didn't apply the wrong in fact she made an affirmative statement that the only things despite what burlington said remember in burlington the court judge this person went out on a suspension and came back and got all the money back and the court said that would dissuade a reasonable worker but despite that language from burlington judge erickson specifically said the only things that are adverse employment action are taking away vacation losing your job or losing money that's totally inconsistent with burlington so although she i'm just go switch to that part of my experience here sure so number number one i think this lawyer yelling at her and that statue limitations argument is not a political at all because the court found specifically in footnote number  one in a footnote she didn't decide the statue imitation so the lawyer yells at her that's that would dissuade a reasonable worker similarily here's what happens with respect to vacation so this is right before she's fired this is in june of two thousand fourteen here's what happens your honor number one in june she's told you can extend your vacation like you have every other year she's been there forty one years and then in july she's told no you can't because we have a use it or lose a policy she talks to somebody else in h r in august of two thousand and fourteen and they tell her oh yeah you can extend it to july but despite those prior communications on october eighth she is directed by the person to whom she complained about discrimination and harassment decide within the next eight days despite the fact that the policy says you have to give two weeks notice that she must go out on vacation so finally you know what your honor on the twentieth of october the record makes clear that she said i will forfeit my vacation and instead of letting her for for her vacation they forced her to go on a run in somebody to inspect her work area and cooked up a reason to fire her the investigation itself is adverse here there's inconsistency is i beg of you to read the crane transcript before you decide this case it is so clear that she was not asked the same questions as are in the supplemental appendix for everyone else and it is so clear that she has a very serious language impediment she kept saying i do what i was told i do what i was told or words to that effect and as this as we pointed out on page twenty six of our memorandum to this court it