and appeal from a summary judgment on a retaliatory discharge claim right under kansas state law and or cancel the whistleblower exception to that at will employment doctrine the whistleblower exception and allows for and for employees to have a private cause of action if they are terminated after they have reported some wrongdoing that have to do pertain to it to the public health public safety and public welfare and in this case news cases are all decided under the rubric of mcdonnell douglas there must be a prime official case made by the employee there must be a and if that's made than if the employer comes form with the rationale that supports a nondiscriminatory or in this case a non retaliatory action then the burden should fact in the plaintiff and th employee and he must show that there was some pretext that the reason that the employer game wasn't the real reason why he was terminated the actually does cover for the retaliation and since this case because in this case there is are several pieces of evidence that the whole universe of evidence in the case that would give the reasonable juror grounds to find the think the reasons given by the college here  travel in violation of the conference rules that the conference the conference and the govern the conference and prohibited the cotton the school from paying for  the reasons given by athletic director rawls he's ready to report the day that he sided to terminate and that he was going to move to alex from this this this this coach and the reasons given were there were several kmiec can and several most reasons lack credibility take for example the grounds that mr coach benjamin had failed and his  and didn't know that that was actually false that the mr coach benjamin explained and deposition testimony that the reason that means that there were six or seven flayers had out on the recruiting trail recruiting players for the next season as the normal recruiting cycle would go and secure in thirteen letters of intent for those for that next season so there wasn't a failure of recruiting and yet  more importantly yeah let it director knew a reasonable inference can be drawn that he knew that there wasn't a failure or a failure in recruiting and yet he cited that in this report that he created on the day that  can thirty eight dollars has keith definition testimony finding its flavor of why he says he left well one person decided to not play softball anymore one person had to go back home to washington for example there were personal reasons given to him and that's those are the reasons that he catfight too and that's creating out of more because they like him as a coach that's not his testimony and i don't think that's in the record about what what those folks from leaving for the new defeat pretext can you meet your pretext burden based on using his testimony i mean what if the what if the record shows that the same players that told him i'm leaving for personal reasons or i've got to go back home to washington told role for somebody connected to rolf i can't stand that guy he says all these nasty things and i'm just not going to be part of it in fact it's so bad i'm quitting softball i mean as your client come in so coming back and saying well that's not what they told me does that good enough well your hon himself in hot water and expose himself to liability because he believes player complaints over the coach well your question about whether all that's the main and i think those are different players and then the players are left in the summer of two thousand and sixteen but again i'm not one hundred percent sure on that believe that you know these e mails these players statements indicated that he was abusive belief on that then the court that would be and what what was the evidence that he didn't believe those players that statement's the evidence and then the jury can use can feel leave that he didn't believe them is number one it's treatment of for player complaints  the idea that he'd had complaints before but they didn't care and then all of a sudden after he makes this report then all of a sudden they care about complaints but it sounds to me like you're conceding that the gravity of the complaints are more serious that the allegations are more salacious than they were in the in the early complaints where there wasn't any disciplinary action well cut both ways your honor it can also show that they are fabricated  it please the court very casey on behalf of the board of trustees of the martin county community college known commonly as barton community college located in great been kansas judge carson i'd like to pick up with twenty your st questions which kind of goes to one of the reasons why i asked for oral arguments in this case i was concerned with the plaintiff's position on appeal and their argument which they make several times in their opening brief and in the reply that this court must this court in the district court this being a summary judgment decision must disregard evidence favorable to the college which the jury is not required to believe mr benjamin cites a u s supreme court case for that proposition reeves versus sanderson plumbing five  fifty one to two thousand decision that citation to authority kind of bothered me a little bit i think it's kind of part of your question judge carson as to wealth should the court just disregard any evidence that could be considered favorable to the college's position in defense and only look at what mr benjamin had to say and if that's going to be our standard in this then we can just kind of do away with the mcdonnell douglas test which the kansas courts have adopt which this court has adopted it's a procedural rule of course for kansas retaliatory discharge cases but the problem with that citation with a quotation is the supreme court didn't conclude at that point the supreme court went on to say the court should give credence to the evidence favoring the as well as that evidence supporting the movement that is one contradicted and an impeached particularly from disinterested witnesses and that's what we have in this case what the appellant as the plaintiff appellant wants you to do is to disregard the uncontroverted and the end impeached evidence particularly from disinterested witnesses and i'll go into the facts on that a little bit more i want to address one of your questions judge murphy the allegations didn't challenge those we don't have any information that he was being abusive players at that time the concern from the athletic director was you're supposed to feel twenty players you're not getting letters of intent what we thought he was doing two thousand and thirteen in two thousand and fifty their word to retire parent reports and what the athletic director testified he said in this highly competitive environment you sporadically get complian the ones who departed him two thousand and seventeen complained about his conduct and reported it to the athletic director the same six we've been talking now i think we're talking about two different groups are talking about the earlier ones six now they never complained about coach been jamin at all what the athletic director thought was going on for whatever it's worth he thought coach benjamin was going to go on to bigger and better things and had not recruited that's what it looked like to him again that's that's an athletic director problem that they have to deal with when they have a successful coach and that's really not the crux of our case it's one of the factors that are listed but let's face it it's his conduct in april of two thousand and seventeen that pushed it over the edge that caused the conclusion of his employee ok so the investigation begins in april april of two thousand and seventeen after he meets with the h r director any of these parental or ball player complaints occurred before th sequence as i understand it is he received some calls and on a way this is uncontroverted he received some calls from some parents and way he does when he gets calls like that from parents or student athletes complaining he says can you send me something in writing he went to the h director julie knob which in this is all in the record and talk to her about it and she has in her notes which is attached to her declaration in the record that they talked about he had received player complaints and parent complaints and he initiated is investigation after that meeting with her so it's those complaints that cause the initiation of the unit yes yes something else nothing else i did he make contact with the people who complained in two thousand and thirteen and fifteen like he did with these people d in two thousand and sixteen did he make contact with them i don't know the answer to that sorry i don't recall so his conduct was different in two thousand and sixteen and following up with the complaints and it was in two thousand and thirteen in two thousand and fifty contacted he asked them to put it in writing it in think the complaints were that severe and took no further action he kept them in the file that was i had many people who had complained at the time he initiated the process know relate to the initiation process with the scene is what is a record indicate that how many complaints by parents or ballplayers were there before he initiated the process the record indicates that on april  th he received the st e mail he said he received telephone calls before that but i don't know if he meant hours or days we don't have that in the record how many we don't have that interacted because so clearly the same is number as occurred in two thousand and thirteen or two thousand and fifteen could have been but they're also vastly different complaint when you read the actual complaints that we had the complaints in two thousand and fifteen and yes yes they're the ones in two thousand and thirteen ye all the complaints that have ever been made against him in the record by student athletes and by parents we don't have all the complaints i don't know that we have all the complaints by other members of the athletic department except as referenced in deposition testimony which i can about things like the basketball yes you had things that were not directly leading to his terminations like these incidents were i want to clarify that that that there's two separate groups there  so i mean pick my for poor was for the purposes of your view of this i would suggest that the facts of course we've already talked about but there's a few other facts that are there uncontroverted that are very important mr benjamin on appeal urges this court to reverse the district court's decision claiming that timing that is temporal proximity the lack of discipline or prior reprimand and a sham investigation show that the just reasons for terminating mr benjamin's employment were a pretext for retaliatory discharge as we talked about just the last few minutes mr benjamin made his report a violation of concert conference rules on february and seventeen it was not until seven weeks later after mr ross had received complaints from parents of disturbing behavior and i don't think anybody challenges that it's disturbing as to how he was treating some of his student athletes and  by the way mr benjamin did not flatly denied that he engaged in that behavior in mid and large parts of it the only part that he denied in this is in the district court's opinion he denied that he yelled and screamed at players he didn't deny the other conduct and that's in the briefs and i've talked about that in his deposition he did admit those other events occurred he put a little different shade on him but he admitted that most of them occurred when we're looking at this timing it was a seven week interval between the report and when the investigation begins and then another three or four weeks before the terminations actually occurs that timing and have a self by this court's decisions is insufficient to establish pretext and a case i think that's particularly that temporal proximity has a minimal probative value in retaliation case where intervening event between the protected conduct and the adverse employment action provide a legitimate basis for the employer's actions here we categories the stated reasons for his termination or d budgetary problems craft no there were no budgetary problems of the the stated reasons for his terminations yes i can do that i thought i could a row of written him down like five times in the last two days of course is it are they generalizations from the record as a whole or is there are allowed there is a specific statement given by the college to mr benjamin it was insu nation verbal the abusive to players and other employees and professional conduct and the inability to manage the softball program in a professional manner didn't the latter include budgetary issues  sense of he has a fund that he's supposed to fundraise for to buy extra items for the softball team and he had depleted that and not restored that fine i was thinking budgetary i was in that the same case in prior years d that had it was it was not specifically listed mr offs made a complete history report to the president and recommending that his contract not be renewed and that was one of the factors that was listed in the report by mr also to the president  unprofessional conduct towards other members of the athletic program and yeah i don't remember if that's exactly what was in the memo but that was that was certainly it i don't know if that was in the memo given to mr benjamin but it was in the memorandum given to the president they specify what those incidents were of these of the employees of the athletic department to the president or to mr benjamin in the reasons for his determination in the reasons the college gave to mr benjamin did not specify those particularly what about the president the president as specified them particularly yes and he nailed to me a flavor for what those were one of them that comes to well there was a direct and direct attack on another incident in january of two thousand and sixteen occurred at the end av a men's basketball game mr benjamin confronted another member of the athletic department about his assistant coaches conduct and how she managed the table and that she was managing the scores table and the coaches got into a dispute towards into the game she got involved in that dispute and he didn't think that they had acted appropriately towards the assistant coach and mr benjamin made a scene for lack of a description right in front of the boosters and that was that was one of the incidents those are the two incidents i believe that involve members of the athletic department the lack of prior discipline i think readily dealt with under this court's precedent it wasn't their policy or procedure it wasn't their practice they didn't show similarly situated employees being treated differently so he can't point to a lack of discipline or reprimand and finally whether or not is a sham investigation really important there's no indication that the college fabricated the student and parent reports there's no indication that they solicited those reports it came to them st yes form in writing but it came from them st but most importantly  mr benjamin wants to say he kicked these people off the team is so they had a bias mr benjamin has never presented any evidence to any court that mr ralston knew that these people were biased in any way or  motive in making these reports to him and that's what the district court focused on in finding that they've had failed to prove it provide evidence of pretexts support his claim for that reason we've asked this court to affirm thank you for your time today counsel mr but if you have some th that the record is not clear on exactly how many when they happened and she is some phone calls were made so the timing of it is this the way the investigation happened mr none of these