title seven retaliation case and the essential elements for a prima facia case which start with a protected disclosure are protected activity and this is a summary judgment ruling so it's a novo standard  the st protected disclosure st protected activity was in august nd of two thousand and twelve quite a long time ago when mr morgan reported to his supervisor stephen sure would that he intended to file a neocon point no neo complaint is essentially the federal employee equivalent to any o c charge of discrimination there essentially one in the same federal employees have a shorter deadline forty five opposition personally i did not see any cases that specifically point to federal employees in the e o complaints however seeing as the two processes are almost identical and  serve an identical purpose i believe that the aug nd in disclosure stated intention to file a neocon point was the st protect the opposition in this case the nd protected opposition was when mr morgan went to his direct supervisor mary hart and told her that will younger coworker had called him a racist that was opposition to will younger making a comment specifically wood's statement on october the th and specifically i'm looking at excerpts of record page one hundred and sixty five so my st question is just about this declaration of the files there are some things in bracket there's a question then he answers in bold that's the formatting on the document i was just curious st were these questions that were being asked to him of his i was just trying to understand the formatting of this document yes so i believe i believe that you're referring to the report of investigation which when a federal employee files in the complaint they go through an initial thirty day counseling process then they go through a one hundred and eighty day formal complaint process the iau investigator at that point interviews the different people involved with the case and get declarations from them or statements and so the bracket is the question from the investigators in the bold is his answer to those questions without having it in front of me i believe that's accurate so let me ask you this  in that document if you need to grab it it would help but that sees me this is very important as he's recalling the conversation having mr sherwood right and he talks about things mr sherwood said about i don't understand why you have the family oh it's totally out of my hands i'm very disappointed with you your drive to tucson every day now i have to show you that i did something right now as i reviewed the district court's opinion in this case the district court discussed the driving to tucson line i did not see the district court discussing the other three things about it's out of my hands a very disappointed i understand why you have to you know this absolutely dire that is a course  order correctly that it does absolutely correct your honor the district court we presented that as evidence of direct evidence of retaliation because those statements the one circuit has said that direct evidence should not require inference or presumption and those statements don't require inference or presumption i mean you did x therefore y happening in the same conversation where you're being handed the adverse action in writing is direct evidence of retaliation the district court instead of going through the entire statement because and the other important point here is that again sure what was asked about this stated that the meeting happened here he recalled giving him the letter and he didn't recall any other details about the meeting so certainly the summary judgment standard what morgan is saying about the meeting should be considered true the district court only looked at that one statement you're driving to tucson every day now i have to show you i did something and the district court basically stated that doesn't constitute direct evidence and fact that may actually be what morgan was asking for since he wanted to be separated so here is a separation that that line of reasoning does not stand up when you look at the entire context of the conversation and i do not know why the entire conversation was not included in the district courts and how that was my question so that the we know that the tucson statement was presented to the district court i take it all of the statements were presented a district court they were your honor yes and i take it nowhere in any hearing or or any section of this to court it's discussed why he did not consider these other statement right there was there was no hearing on summary judgment in this case  and frankly i was perplexed as well when i read the district court's decision on this because these other statements are all part of the same conversation if you're if you're analyzing this conversation to determine whether or not direct evidence exist you have to analyze the entire conversation it would be it would be similar to would be similar to say a clerk of yours making a big mistake let's say never never happens i know i know so and those we have way far afield but say that it happened and you sat the clerk down and you said i don't understand how this happened but i have to show you i'm doing something so you're doing this now you're doing x now well if if you just take the end of that i have to show you i'm doing something so i'm doing x now frankly you can't even that that statement really doesn't make any sense out of context and the context is absolutely critical here and it was not analyzed by the district court but maybe a quicker analogy would be to say that vice president gore won in the florida supreme court without saying what happened afterward but for and we can affirm on alternate grounds i want to get your comment then there's also a recent supreme court grant and occasional bad versus wilkie that may touch on this so i don't know if you're familiar with the graham but you know i did want to give you an opportunity to respond to their alternate grounds of prevailing so as far as the as far as the but for causation standard there there is some dispute and some conflict among the different circuits over whether or not but for a standard but for causation standards should apply to federal employees specifically as opposed to private employees that is in dispute the sea has come out with their own guidance stating that but for causation should not apply merit systems protection board is also follow the same d c has followed the same so there is a circuit split on that issue i don't know that but for causation is a set standard for federal employees nationwide if not and i take it the district court did not address that issue the district court did and did not touch on the issue but our argument would be even even if we are under the boat for standard the but for standard is the straw that broke the camel's back and the straw that broke the camel's back here especially when looking at the timing of everything so sherwood has given many conflicting reports on when he made the ultimate decision to issue the directive reassignment to the southern arizona s s e the agency has argued that the decision was made on august th that off of an e mail that said i would like to move both larry and jerry gerald morgan my client out of the central arizona s s c and into two separate units one at phoenix which is central arizona and one assigned to prescott which is in the northern arizona ass se but before i move them i want to talk this over with you well obviously there's issues with trying to use that to show but for causation doesn't exist st is the timing a protected disclosure was made on  august nd so this e mail indicates the moment that he made this decision which we don't really believe that it does even if it does that's twenty eight days apart so but for causation can be met under that standard the language states  desire not an intent the directed reassignment at issue in the e mail was to the northern arizona s s e to prescott whereas the issue here in this case is to the southern arizona  and the and again it conflicts with many other dates that surewood has given at times sure would has said that he finalized the decision october nd at times he said he made the decision after the leslie jones meeting which was in late september at times he said that he made the decision weeks before the jones meeting and it was quote in the works so at this point one of the facts in dispute is when this decision was made and our argument is that if there is a question of when the decision was made then at this point in time the only logical answer that can be given is that sherwood was going back and forth deciding whether or not to make this decision he finds out on october th from the e o counselor who contact him and says a neocon point has been filed against you by darrell morgan you need to provide us with information on this complaint  finds out october th he hands morgan the notice of directed reassignment which is an involuntary reassignment on october th so those are just days apart from each other so looking at the knowledge timing tests which is a common method of proving but for causation or proving causation of any kind in retaliation cases we see a clear temporal proximity between the two and in addition to that there's also there's also a pretext here the directive reassignment had morgan commuting for roughly half of his work hours now the agency standard whenever i've been representing federal employees for a long time the agency standard is that the decision should promote the efficiency of the service that that is the line that has to be put in essentially all of these and morgan's own supervisor mary hart in her deposition stated that she didn't believe it promoted the efficiency of the service she probably didn't believe that because she had come up with a temporary reassignment that separated morgan and younger from each other within the central arizona s s c and was working fine both parties were happy with it and insurer would claim that he didn't know about it but he did page to sixty one dollars of the record is the e mail where mary hart explains to sherwood what she had done so in addition to that we have an e mail between now kaufman maliki i think his name was which is also also at the supervisory level sure would where the two of them are discussing this and they call morgan a troubled child and then when they issue the directive reassignment there's an e mail where they say put good words in and these are the types of comments that show pretax they serve as they serve as at least circumstantial evidence but i believe they show pretax in addition to in addition to the burden shifting analysis i don't skipping around a little bit want to reserve the rest your time yes thank you please the court christina moore center pairing on behalf of the federal aviation administration this case turns on the timeline of events which show that mr would show that the agency's efforts to reassign mr morgan were underway well before he engaged in protective activity this timeline of events is determined by those facts expressly admitted by plaintiff as well as those facts they were deemed admitted by the court at summary judgment and by one point of clarification although the grant of summary judgment is renewed is reviewed to novo the decision the discretionary decision by the district court to deem unless there is a clear abuse of discretion on the record which there is not here what was happening in the summer of two thousand and twelve in the central arizona region of the f a a was disputes and friction between environmental technicians as well as electronics technicians so even as early as before july th two thousand and twelve the agency was already bringing bringing in a mediator sh try to tamp down those escalations initially between mr younger and one other employee as well and then after the july th two thousand and counting or two thousand and twelve encounter between mr younger and mr morgan mr morgan was then included in those mediation efforts now mr smith indicated that the plaintiff believes august nd two thousand and twelve was an act of protected activity it is not for two reasons st of all as summary judgment plaintiff expressly abandoned any claim that the incident in july two thousand and twelve was an act of race discrimination and under the anti retaliation provision the statute you have to engage in activity intended to oppose an employer's discriminatory activities since no act of race discrimination could have occurred prior to that in july as abandoned by  plaintiff he could not have engaged in protective activity on that day furthermore the supreme court guidance in clark county vs breeden establishes that it is a reasonable person standard of whether or not somebody has engaged in protected activity and under clark county when we look to see would any reasonable person have believe that what they were complaining about did that constitute a title seven violation and in this case the facts are on just feuded that the july th two thousand and twelve encounter between mr morgan and mr young or was that mr younger approach mr morgan asked him why he was in the tempe facility mr morgan responded it's not your business what i do and mr young younger responded is that how you want to play it and walked away that was the extent of that interaction and based on those in undisputed facts no personal no reasonable person could consider that to have been a title seven violation raced and even come up and this is a racial discrimination and retaliation claim so august nd two thousand and twelve did not constitute protected activity we do know it's undisputed that as of october th two thousand and twelve mr morgan formally answered the e o process and that does constitute protected activity outside of the central arizona region albeit to prescott he also asked for intervention in terms of an ego and accountability board investigation to get to the bottom of other complaints that were raised about a different environmental technician in that out brief august th two thousand and twelve is the day that the efforts were underway to transfer mr morgan outside of the region and as stated in clark county once those efforts are underway and if they predate the protected activity there's no evidence of causality whatsoever and it is about four causation standard here after the august th two thousand and twelve decision mr morgan in fact does perform work on a temporary reassignment up in the northern arizona region that is undisputed during that time frame mr s learns that there is not enough work to sustain mr morgan there and therefore they're not going to be able to continue that that reassignment but in discussing with the manager in northern arizona they come upon the idea of the correct but at the summary judgment stage if we assume what mr morgan says is true there are a number of things that mr sherwood said that mr morgan says shows that this was all retaliation for  why was shipped off made to drive three hours a day or whatever it is the district did not at least in its order did not address the entirety of that conversation and mr morgan is saying that that alone is grounds for reversal what's your response to that is that the district court address what what the focus of the adverse alleged adverse action was which was the reassignment to tucson and he did the district court held that that was in direct evidence that was not specific and substantial enough to show pretax so as indirect evidence the court's ruling was correct and that in that respect but what about the a parts of the conversation that at least in the order did not was toward did not address correct so even if this court were to consider that to be direct evidence of pretext it's still not sufficient because plaintiff has to do more and show that the discriminatory reason more likely than not was the most ation for the reassignment that it was pretextual meaning designed to hide intentional discrimination was one make sure i'm keeping your argument straight i asked i know one of your alternative grounds for affirming in this case is the but for standard is that we're talking about now well it applies in both because the planet has to be able to show more likely than not that the adverse action meaning the motivation to reassign mr morgan outside of the region was motivated by him in gauging and protected activity if the decision had already been made before he engaged in protected activity it cannot be more likely than not the reason for the  will make sure i'm not at least in my mind i'm not blurring the issues here so there's the for the st issue upon which the district court ruled was insufficient evidence of pretext for x it assumed without ruling on the issue  of the primal facia case of retaliation and now what you're saying is that even if there was pretext shown there still was insufficient evidence of actual discrimination i'm saying that even if one portion of it an october th two thousand and twelve conversation is considered direct evidence it doesn't establish pretext because it has to have been more likely than not the reason for the discriminatory act and mad why do you do this to me i told you not to do what i'm sippin you to something wise and if you would believe his version of the story and i understand that you don't believe that version but assuming a jury would why it's not sufficient for this case to go forward it's not sufficient based on this court's decision in vili a remote versus aloha island which stated that when the only evidence the plaintiff has presented is a self serving affidavit that's uncorroborated that is not sufficient to generate a genuine issue of material fact but how would he in this situation it's a conversation to an employee and an employer or is by a boss a guest tech if you know a government employee would you know what i mean how else would he corroborate that other than saying this is what happened well in contrast to mr morgan mr sherwood has corroborated his statements he affirmatively testified in his ego affidavit that he never once dissuaded mr morgan from pursuing  claim he tested that he didn't learn about the intent to file any claim until much later this is corroborated in the record by the e mails that show the date mr sherwood was informed that plant plaintiff was considering filing any complaint that was on september th two thousand and twelve the very same day mr share with the e mail show he's reaching out to human resources he is asking for guidance in terms of providing the information to mr morgan and gets that number from mr morgan to call gets the accountability board website for unfair labor practice complaint to be filed and instructs mary hart to ford that information to mr morgan we even case at trial conflict resolution and that's precisely what the agency did that is evidence that corroborates his statement at the crime rates when he actually learned mr sherwood was considering filing any complaint and a crime rates that he wasn't dissuading anybody from doing anything he was facilitating the information i get your point i take it he's going to because again you don't have served at all so he's going to get up and say well but this is this is a he said he said case and that's mr sure was versions of events but i should be able to tell the jury my view of events in this conversation and so what can the law says that he can't do that at this stage the the la says he needed to provide something more than only a self serving uncorroborated affidavit anybody can say anything in an affidavit and create a genuine issue of material fact at that point i would also add that even under clark county v racists given what the e e o c does in routing out and identifying people who employers that are racially discriminatory is the act of calling somebody a racist a violation of title seven under clark county very very conceivably know and if that's the case then we're left only with october th two thousand and twelve as the act of protected activity and in the record it that mr sherwood finalized an asset decision prior to that on october nd two thousand and twelve when we look at the universe of undisputed facts protected activity did not occur on august nd two thousand and twelve the decision to reassign mr morgan occurred no later than august th two thousand and twelve it predated any sort of protected activity under clark reassignment and in this case it's undisputed that prior to the october th entering of the iau process mr morgan requested separation from mr young or in the conversation with m jones and subsequently with miss hart that it cannot be said that the reassignment caused any injury ultimately at the end of the day it was the delivery of the decision not the actual nature of the  that to which mr morgan objects so when at the end of the day were left with and uncorroborated self serving appetit affidavit is the only evidence of anything that could be construed as pretext it's not sufficient under this court very briefly asking for separation is not asking for reassignment not the same thing two different words in the english language there the september th e mail that morgan sent t heart that was going forward it sure would that i am requesting to file an e o complaint against will younger because i believe he is discriminating against me that is a protected disclosure and sure what was aware of that prior to october th when the counselor communicated with him and just briefly in an overall sense i believe that the agency is complicating a very straightforward process on how these cases are proven we we have a process to prove causality it's knowledge timing or it's circumstantial or direct evidence and direct evidence has been proven are has been provided knowledge and timing test has been met in pretax has been shown so the so for those reasons we request that the decision be reversed and remanded thank you thank you counsel thank you both for your argument this case this matter submitted and this panel is adjourned thank you