i will admit that i believe that the discrimination claim is a lot weaker than the retaliation claim and i want to focus my attention here today on the retaliation claim and what happened in the retaliation before you talk about what led to the retaliation claim could you elaborate a little bit on what the district court thought the record showed or did not show about anyone's knowledge they your client was native american you said you said there's really there's record in your brief you said there is record other things to support the opposite conclusion but all you did was cite to a page and a half of the record and i wonder what what that paid to the record shows that the page that conversation with her supervisor had taken place and the supervisor was the one who was involved in some or all of the disciplinary action she was that was jennifer linear and this started and i if i could just briefly to i mean i understand what you're saying but i don't think the chicken botham may be wondering about why if the district court thought this was the right decision it didn't just enter judgment on partial findings as opposed to granting judgment as a matter of law and going all the way through verdict and then just simply saying as a factual matter i find that the supervisor did not know that your client was native american or i find that this discipline took place because there was purportedly a job violation although some of it might have been erroneous but at the end of the day i don't think there was anything discriminatory about what happened to your client well the question then would be whether that decision was wrong based on the evidence that that we had presented to show them it got at us what relief to you seek in this court to evidence that we presented at least on the retaliation claim actually supported a retaliation claim because if you look at the errors that were committed by the district judge and if i could just go back for a minute to what the facts were because he found that there had been this history problems and there had not been a history of problems there had been two prior disciplinary actions before she filed her first n l r b charge and when she fall that you know or be charged what the court did was say that she did not have a good faith basis when she originally filed the n l r b charge and then carried that through fusing the requirements for the opposition clause and the participation clause and that's where the first error occurred and finding that she did not how can there be an error if she was disciplined before she filed any charges of discrimination how can there be retaliation she  occurred or the filing of the charge of discrimination did not occur before that and we have never challenge that to original disciplinary action she said she did it and april of two thousand and thirteen she said yes i committed that error the only issue that she had was the discipline that was imposed and she challenge the discipline or her union representative challenge the discipline and they reduced it i believe to a letter of warning so we have to look at the discipline that took place after the first charge of and then they immediately retaliated with disciplinary action and then that got repeated all the way up until two thousand and sixteen when her current supervisor at the current station manager dan tore up the discipline that had been recommended again by jen tore it up and said we're stopping this essentially right now we're not going to go forward and she has not been disciplined says what the district court found is that with respect to all of those disciplinary measures there wasn't enough evidence to tie it to filing the charge of the discrimination well enough evidence to tie it to that what the court found was that there was no causal connection and the court also found that there was also and that time period the time period where she was claiming that cam that another employee had been given the overtime and that was between july august of two thousand and thirteen until the con if she bought her at all rb charge during that time period there was an african american employed came a gibson who was getting the overtime she went to the station manager mr pender and complained about that then she filed the n l r b charge and what she claimed that this was discrimination based on her not getting the overtime and not being able to contact her union representative that was on november eighteenth two thousand and thirteen the following day the day after she had complained to the n l r b about the discrimination she immediately was told by mr pender that no longer was or going to be a union book that she would have to go through and follow a much more cumbersome union charge that she was not being able to see the union representative and it never stopped that that another employee and that's why she said originally they said she with a native american yes sir but originally this was a racial claim based on the overtime that's what she reported to the n l r b when she reported it to the  time but that was in the original time when she was this is back in two thousand and thirteen when she was not getting the overtime and an african american employee was getting the overtime rather than her and that was her original position but looking at this though can i ask you something else though if you talking about the three three three of the disciplines survive summary judgment right three of them went to trial yesterday so that's what we're talking about now yes or ok history in the pattern i mean even though three only three were found to be recoverable right doesn't mean the others can't be considered in the mosaic but in terms of actionable retaliation those three were the ones that were tried yes or ok two of them guess i'm just looking at this is an outsider looking at a cold record but two of them were initially because her code or her number appeared on something which was erroneous that's correct you think an employer doesn't have a basis for thinking that someone has done something wrong if his or her code or number up here on a mistake and in two of those instances once they figured out that it really wasn't her they withdrew the discipline they didn't withdraw the discipline they never did they only discipline was only withdrawn after she had appealed it through her union very fine oh that's what i mean that the supervisors never were through it well because the the but that's what the grievance process is for to show the employer that it made a mistake even though it might have been an honest mistake and that the employee shouldn't pay the price for that mistake and that happened twice but didn't present anough evidence to show and question the legitimacy of all of this discipline when we had two of them two of them had her code on a mistake what do you where does an employer begin to think that a mistake originated if the mistake has an employee's coding on it because we had witnesses that would testify to say for example let me use just the twelve miss cans as an example that you had a two a four b mr covington that had programmed on the scanning device that this other employee miss genevieve huff had used and we had always testify that they could program different numbers on scanning why i when i first started today i said that i think i'm going to have a tough time on the discrimination crime so the retaliation is just because she was complaining and saying that certain things were not being done the right overtime list and there is an african american employee who is getting the overtime she's not on the out on the overtime list and that's wrong that's when she filed and said discrimination and the n l r b charge so everything that came after that she filed then for charges of discrimination and related the first one back to the n l r b charge so what we have is we've got participation clause activity beginning in december november december of two thousand and thirteen and that never ended she kept filing them and so what we have and what i've said before is you've got a report you've got a retaliatory action taya disciplinary action taken against her immediately thereafter and that did they please the court good morning jonathan lettering assistant united states attorney on behalf of the appellee in this case district court's decision to grant the postal services motion for judgment as a matter of law should be affirmed plan and i'll do that just just one clarification i just want to make sure that the record is clear about that i asked a question this trial just to so it's clear i may have misheard you but this was a jury trial so this was not a not a bench trial it was a jury trial and that's it that point when the plaintiff's head clothing the plaintiff it closed his case that's when the judgment as a matter of law was decided now on the retaliation cl at the key part about that is this string of discipline begins before mr burke ever files and if any of complaint we have complaining about the discipline that took place after th where you have to say about that so the rb complaint that is a red herring or b complaint once has the district court looked at it that complaint mentions the word discrimination and it's talking about discrimination based upon union activity you're not conceding that is not actionable in their title some and it's not and maybe actionable somewhere else under some other labor statute but not under title seven because the protected activity really wasn't protected it wasn't a complaint based on one of the april seventh two thousand and fourteen almost a year after the discipline began and notably in march of two thousand and sixteen after all of the disciplinary actions that were at issue the three that were at issue at trial in march of two thousand and sixteen a supervisor who had no involvement in any of the prior discipline and her name was mr chase but a chase recommended that mr burke receive discipline now ultimately she didn't receive discipline but there's a record evidence which is the disciplinary action request that was put in by mr chase a good showing sort of on the front end before the complaints and on the back end well after the complaints that mrs burke was insubordinate and she was a problem employee that supervisors finally decided to try to do something about the record demonstrates that each of the actions that were taken in this case were taken for legitimate nondiscriminatory non retaliatory reasons and the increasing discipline that mr burke faced over time was due to the progressive system of discipline that the post office employs and sure there was there was one complaint that she made where she did allege discrimination based on race right that is correct and how many before you continue explaining how many disciplinary incidents took place after that complaint showed ok so the but it's the july seventh two thousand fifteen ego complaint that's the first time that we see ms burke complain about race discrimination ok so the there's only one disciplinary action that occurs after that and that's the september two thousand and fifteen miss delivery incident a condominium at the condominium that's where the wrong apartment right and so was in question correct ok and i can go into the facts on that if the court were like oh my just wanted to place everything in the temporal i understand read right so so when i was mismanaged to speaking earlier about the march two thousand and fifteen incident about how that was somehow retaliatory for each activity the problem with that is the the last the most recent complaint that she had the at the time of the march two thousand and fifteen incident was in september of two thousand and fourteen so well outside any reasonable inference of causation why aren't these arguments that are heard more of this maddox can make to the juror can can you know gentlemen of the jury on the fact that the discipline was imposed in close proximity to the time of the founding of these n l r b charges reckitt should make that argument to the jury in the jury can accept it because that is flawed as a matter of law because the notion that the n l r b charge again that's not protected activity under title seven so if that argument would be improper as a matter of law that's one thing and you know one can't argue temporal proximity if you're temporal proximity fails as a matter of law and so you can't argue if you've got four or five months to go outside that window of two to three months that this court has said is sort of on the edges you can't you shouldn't be permitted to argue that because it's it can be decided as a matter of law in less i think there's i think there's a possibility it could be under two if two facts were established one if the contents of the you know are be charged i guess theoretically you wouldn't have an opposite to the two prongs to retaliation claim right so you wouldn't have a participation clause argument because you're not participating in a proceeding under title seven but theoretically if the n l r b in charge did in fact perhaps the plaintiff didn't didn't know which paperwork to fill out right and so if a plaintiff filled out and are being charged and it's replete with with statements that they feel like they're being discriminated against based upon their race or gender or whatever that may be and that in order to be in charge we know there's knowledge that that person the supervisor got it that next day and that supervisor then took action i think that would be a very different case and one where there could be an argument that perhaps you're now engaging in opposition clause activity and if it was a this might come up this is from the trial transcript page sixteen line twenty four after i asked her question you don't know the month or the year on which you had a conversation with misled here in which you said you told her you were native american correct answer no i cannot be exact question so i'm correct yes i'm correct answer yes so she doesn't know when that conversation occurred so we don't know if miss linear had that knowledge at the time of any of these disciplinary actions  discipline being imposed was the september two thousand incident so your argument is that because the time of trial mrs burke was still the post office employee up until i believe she said march of two thousand and sixteen so it could have happened anywhere in that time period absolutely and the notion that even if mrs burke had been able to establish that somehow  was native american the notion that these actions these three disciplinary actions taken on the basis of her being native american is no reasonable jury could find that there were there were  think i can look at the docket she can give you the date i do believe it was fairly fairly early on i believe it was after we had filed a motion to dismiss it was this mother knows the amended complaint the amended complaint some of some of the district court's order reads like it's a factual finding as opposed to what a reasonable jury could have found in other places the district court says no this could have been a jury issue but it doesn't make a difference anyways because of x y and z but some of it reads like factual findings i think i have the same impression and i didn't but i think that the reason perhaps  it has that impression is because i think the district court was trying to be very careful to construe the facts and the light most favorable to mrs burke and saying ok if i find based upon these facts which i'm finding are in the light most favorable to her no reasonable jury could find in her favor so i think that's that's why it reads and that fashion and if i may the interesting thing about this case is when you look at the timeline of the complaints and the discipline it's a scenario really of reverse causal connection it's a scenario where almost virtually every time mr burke receives discipline she filed and complaint afterwards attempting to use the process as a sort of sensually against management and as the court can see and as i pointed out in the brief on the issue of pretexts mr burke relied upon conspiracy theories far fetched conclusory assertions that none of which are or probative of pretext  plaintiff had completed its case in chief grant the motion for judgment as a matter of law and then the case went up on appeal and the court affirmed and the court sort of grappled with some of that procedural procedural questions a couple of you asked about i think i can summarize our position and hopefully less than two minutes this case has nothing to do well it does but it doesn't because i'm essentially conceding on the national origin and the race crime so that take that out of it completely and let's focus on what she on the retaliation claim when she followed her n l r b charge and this has been filed with the court she said repeatedly i have been discriminated against  by failing to schedule me for overtime she testified during the trial that she talked to her supervisor the station manager mr pender that that was based on an african american  gibson getting the overtime rather than her so and her n l r b charge she repeatedly says to basis for the discrimination not getting the over time and not allowing her to have her union representation but those those those if i see that in an hour are be charged you could interpret that one of two ways one is discrimination based on something akin to a title seven protected category but the other one is that the post office is not following the union contract and not letting me have seniority with regards to either a work assignment or asked to overtime or the like and they're letting somebody who was behind me in the bid line get preferential treatment and i could describe that is discriminatory too but she put meat on the bones when way that she did that was talking to mr pender to tell him that a nother employee who was not on the overtime list was getting the the overtime rather than her and that but that's not that's not racially discriminatory or she felt that it was and had gone to mr pender to report she told him that it was based on race she said that she was being the victim she was being discriminated against she did not say right i know that or that seems to me to be part of the problem because it doesn't matter what race or ethnicity the other employee had if you thought that you were entitled to overtime over that employee because of seniority the other employees race or ethnicity or religion or color or anything else or gender doesn't really matter what go to the opposition clause activity with what she filed with the n l r b ok did she have a good faith belief it would have been known her supervisor is also a mr penders african american and she was pointing out that he was giving her the overtime she did not say and the other employee is african american because it's known i mean he's the one who's making the decision that she can get the overtime mr  told mr pindar that dad when she saw that it was tammy gibson and this case is not about whether she is native american i have abandoned that what is about is the treated differently than an african american employee and that's what she had reported and gone to mr pender about but this case is about her participation cost activity and this court case the e o c versus total system services in case a two thousand case where and participation clause activity and that's what we're talking about you don't go underneath to look at the good faith basis for the charge and so that's when and if you look at her participation was active and what happened immediately after that and we have successfully shown that the legitimate reasons that they've offered are just simply false we brought in lots of witness testimony about that the falsity of the reasons and notwithstanding what the district court judge upheld those reasons were false and we were able to prove followed immediately your honor right after she had followed her ego charges and that's the participation clause activity i appreciate it thank you thank you