the next case on our docket united states of america versus al has been submitted on the briefs along with the case of in ited states of america versus many anya have bar that's also been smeared on the briefs so the next case for oral argument presentation good morning it may have please the court my name is philip gregory and i'm appearing on behalf of the appellant janine clarke i'd like to reserve five minutes for rebuttal this case  mother who built a successful book business in the construction industry as an insurance underwriter she goes on authorized maternity leave to have her rd child she comes back the day she comes back her boss tony weddle tells her that the position you held prior to maternity leave is no longer available to you all of your book a business in the construction industry has been reassigned i've got to create a new position for you and your prior position would have been available to you had you were turned from maternity leave prior to your scheduled return date there after the young mother's st assigned administrative duties then she's assigned some seriously underperforming accounts where she has to work with them on an online system that itself doesn't operate and the company admits it doesn't operate the accounts are all in industries where she has no prior experience and fact the evidence is one of the three accounts didn't write premiums for more than a one thousand dollars a month and just to briefly explain put that insurance quote out to bid ms clarke in the construction she was in the construction industry would be one of the underwriters who would look at that quote at that quote bit innocence and then which in she would do that based on her knowledge of the industry based on her knowledge of the company and her compensation would then be based both on her ability to get in the premiums necessary to meet her goals otherwise she's going to get written up perhaps even terminated which ultimately happens here but certainly no bonuses and the testimony here is that her bonuses were material true her because of her family situation i think pi be more effective if you make your are your argument in terms of the issues and imprisoned it and highlighted for the core and i think one of your big obstacles here is that the district court ruled against you just right down the line here on her claims that she was discriminated against or or terminated because of her pregnancy and that the leave that she took i think that's the crux of your claim correct yes your honor all right so what i'd like to find out i mean assuming for the sake of argument that miss clark here did make a prime aphasia case of discrimination i understand the district her and one of them was poor performance tardiness underwriting violations and requests from clients to be reassigned to another underwriter so what i'm looking to you for  here today and use your opportunity because i really didn't see it in your briefs is what is the specific and substantial evidence that you can point to and that you put forward to show that these reasons were pretextual certainly and your honor i really think that it has to start when she returns from maternity leave because that's when she's given this new bus book a business and set up to fail and then at the end in in surprise understand what your arguments are you need to point to me in the record what you showed to counter other than her statement what you showed to counter that these reasons were pretextual certainly your honor so let's let's start the record at page one thousand and forty six plaintiffs during this supposedly reorganization was the only writer underwriter with an entire book a business taken away in terms of construction book of business what happened there is her performance prior to maternity leave is  dollars and than the number the acronym used there is gross written premiums or g p so her goal for the year originally was seven hundred and fifty thousand dollars beyond her own statement can you point to that supports that that she was had poor performance that she was not tardy that she didn't have underwriting violations  and i guess let's just start with the tardiness can you do you agree she was tardy no your honor a case where there was an exempt employee that had no set our release schedule that set the record it for ninety three that the same was true for the comparable employee regina malloy at set the record it eight hundred and seventy six dollars or regina malloy never had anybody check any of her hours at any time and that's and ms clark what they road are up for is she's supposed supposedly supposed to be there at eight hundred and thirty although in the morning all of them one looks at the employment manual as long as she does her forty hours a week there's no set time when she has to show up but she's written up for tardiness winched for showing up at eight thirty five in the morning and again what we're talking about here is another issue she's charged with putting our the other at issue your honor is you talked about that they were supposedly clients who wouldn't work with her there is no evidence in the record at all that prior to her notice of terminations she was informed of this and she had an opportunity to deal with that at all and then later on what we have is that i believe that the court said that there was one incident where she she improperly wrote coverage for an excessive amount and she admits it she did that and she apologized but that's not the reason that they terminated or they terminated or because she failed to meet her  charge you know a lot of pinpoint comments on things that you claim the record shows that you she was not treated fairly but there's another process it seems to me you how the person was treated more favorably than your client give me even one regina malloy your honor when she returned from maternity leave she was given her book a business back and in fact that's what the president of am trust david lewis said was the policy that when an employee goes on leave leave of absence the companies expectation is that when he or she returns from that leave he or she will get his or her book a business back that that was the company policy or all extant circumstances they get to say that's what he testified your honor and can you morning may please the court dillon cart for the m trust defendants i do agree with the district court that plaintiff that not make a prima facia case on the gender discrimination claim and in addition i am trust preferred evidence nondiscriminatory reasons for her terminations and plaintiff cites no evidence that the reasons were a pretext for sex discrimination well the the bar for face a case is very low here position she released submitted no evidence or argument directed to that point we're talking about less than a preponderance of an evidence here for that for the for this standard so let's let me terminations they include not only the tardiness but the two brokers asking to be reassigned that she missed she was well short of her goals monthly and annually at length let's take is not a good comparative for plaintiff because ms malloy was also out on maternity leave and return from maternity leave so there's just a logical problem for a plaintiff to say well ms malloy was treated more favorably than me and therefore that gives an inference of sex discrimination it doesn't make any sense ms malloy also went on maternity leave for her to make that argument i would think she need to point to a male or a female who had not gone on maternity leave who was treated more favor but so was miss malloy when she returned from the turn treated any differently than the plaintiff here no your honor every single employee had his or her broker's reassigned in around the january two thousand and fifteen timeframe just when plaintiff was returning from her rd leave of absence and if i could address the s m l a interference claim so the the key issue on an f m l a interference claim unlike sex discrimination it's not the intent of the employer it's the factual issue of whether the plaintiff was or was not returned to the same or comparable position and here the undisputed facts show that plaintive was returned to the same or comparable position the factors are identified and twenty nine c f r eight hundred and twenty five point two one five and if i could just go through them briefly she had the same title both after and before her leave which was underwriter she worked in the same select business department she earned the same compensation receive the same benefits work the same hours in the same office had the same supervisor had the same duties and authority and responsibilities plaintiff contends that the reassignment of her brokers somehow made the position now no longer the same or no longer comparable she focuses on compensation and claims that the reassignment of brokers affected her ability to earn commissions because they were lower performing than her previous brokers the problem with that argument it contradicts the undisputed facts of the record which was that commission was never a component of plaintiffs or anybody else's compensation plaintiff did not and the other underwriters did not develop a book of business in the sense of going out and finding new brokers for which their incentivized by being paid a commission on sales that's not how the industry works the brokers are assigned to them hence that's the essence of plaintiff's argument that she complains about the assignment o she lost out on the ability to earn what she contends are merit based bonuses but the undisputed evidence is the bonuses are purely discretionary and they're based on factors such as profitability of division and company brokers i heard opposing counsel highlight that one of plaintiff's complaints is that the reassigned workers were in industries other than construction and she focused on construction before her leave but the undisputed facts  that of all the accounts that she opened in two thousand and fifteen a full eighty percent of them thirty four out of forty two were in the construction industry so there's simply no evidence that when she returned from her rd leave in two thousand and fifteen it was in anything other than the same or a comparable position what about the statement that had she returned from maternity leave sooner her prior position would have been available to her yes your honor so i think there are two reasons why that is not enough to raise a tribal issue of fact regarding her interference claim st of all the intent on an interview the intent of the employer on interference claim is not the issue it's was sheer waste she not return to the same are comparable comparable position you got to look at the facts of what the position were and i believe as i've outlined it was actually the same or comparable position but clearly wasn't the same position it was comparable here say it was at least comparabl me and i've been struggling with it a bit because it seems at least in my view whether summary judgment was appropriate on this claim is is a relative a close call because on one hand  the the scenario she alleges is plausible that is because of her leave her former clients were taken from her and she was given under performing accounts the scenario also has support from the record and seems entirely possible that the lower performing accounts could lead to job performance problems and a lower bonus even if that bonus wasn't explicitly tied to financial targets on the other hand taken what you've submitted in in your briefs and here today it seems like am trust's account is also plausible and appears to have you no support in the  assigned to the same accounts as clarke were able to meet targets in line with those set for clarke and that clark's compensation remained unchanged despite the new a class counts so  the question is was a summary judgment appropriate here and attend a look at what the district court focused on and that despite the opportunity to take disk every on many of these issues looks like ms clarke failed to develop additional facts to support her claims beyond her declaration and that's what i'm struggling with is there other items other than her declaration i've tried to ask that of her counsel is there anything else that you identified that she has put forward i think your honor summarized  the evidence that's in the record you know the district court did cite to district court cases that have addressed analogous fact patterns and they both did hold similar to the district court below that reassignment of accounts or refocusing on accounts even where the commission was an issue is still not enough to make a position non comparable after a leave the state of the breed in case in the case i guess i'm of the questions the other question i had for entrust was whether or not the district court was proper was right in saying that she failed that ms clarke here failed to exhaust her d e f e h complaint you know she alleges that she was subjected to discrimination and retaliation the complaint also states that my profile e o clients have been taken away and given to another employee in retaliation for me taking leave and i received a negative an order of you in real relation retaliation for taking my leave and so i just i'm not quite sure why the freeman case doesn't control here and should her claim five retaliation for filing a complaint in violation of fees not survive here yes your honor i would say for two reasons number one i think the district court was correct that ms clark did not exhaust her administrative remedies it's true that the word retaliation is in her administrative complaint however it's not retaliation in the sense of i opposed unlawful activity and was retaliated against it soley retaliation in the sense of an f m l a interference claim that i went on leave and in quote retaliation i was i suffered adverse action and that's a very different type of retaliation case than a feed it retaliation case for opposing alleged wrongdoing well i guess trying to look at the record here and then our you know the freeman case remem says oklahoma oakland unified school district which says it's appropriate to consider such factors as the alleged basis for the discrimination dates of discriminatory acts specified within the charge perpetrators of discrimination named in the charge and any locations at which discrimination is legit to have occurred to determine whether the retaliation claim is an compassed within the scope of an administrative complaint and here all the alleged acts of retaliation and discrimination involve the same individuals mr wetherell louison entrusts h r representative in the same relatively short time frame and that at the same location so  why wouldn't that be something that would be found during the course of this and brought under the the freeman umbrella your honor friedman says as we poured in brief inquiry into whether a claim has been sufficiently exhausted must focus on the factual allegations made on the charge itself describing the discriminatory conduct about which a plaintiff is grieving it's just a different type of retaliation to say an adverse action was made because a plaintiff went on leave from an adverse action was made because the plaintiff allegedly oppose unlawful activities  d i understand tallish for filing a complaint is not the same as retaliation for taking leave but i guess my question is aren't these allegations like or reasonably related our kit our contention is there they're just different that investigator the the the way the cases frame it is would an investigation plaintiff requests that a right to sue so there was no real there was no real investigation done well wouldn't the investigation of the former  the investigation of the latter i would say no there's no reason for an investigator to look at into whether and when and how did plaintiff oppose d unlawful activity because that wasn't germane to her allegations even though the word for television was in there it was tied solely to her taking leave not opposing unlawful activity and assuming she did exhaust then we get to the merits and assuming she made a prima facia case i believe she relies solely on the sikh temporal sequence of events we've preferred evidence of nonmetallic of tory reasons the tardiness the failure to meet her goals the brokers requested to be reassigned and i think plaintiff rely solely on the temporal sequence of events to try to raise a tribal issue of fact in the case law is clear that even though sequence can be enough to make a prima facia case once the employer prefers evidence of a non retaliatory reason you need more than that to supply summary judgment i don't think we have that here or any other questions mr karp thank you very much  the court and to answer your honor's questions about where that testimony is from the president david lewis concerning her getting her book of business back that's it e r seven hundred and forty five when she writes i'm sorry he testifies the nd example you're showing is an example of an individual in which she still technically in this case we're talking about jeanine meaning ms clarke has that book a business however because of her absence other underwriters are stepping in to help service it we're going to continue to book it under her name because the expectations are when she returns from leave or any employee returns from leave that book a business to is still going to be the when it in this case it wasn't just turns your your company your friend says that this was something that was done the whole company reorganization and every every employee suffered the same and that's not what the evidence shows your honor and in fact that the testimony is she's the only individual who had her entire book of business taken away and it's also important to note that it was taken away as mr wetherell said two were on january twenty because she stayed longer on leave had you been back so soon or your position and your book a business would have stayed with you that the new book of business you go was largely the same type of business you had before right no you that's not disputed by anybody she ended up doing additional work and getting other work in to meet her goal but what she was initially given was completely outside the construction industry what is that show when what she was writing before she left on maternity leave was millions of dollars in premium and she comes back and they say to her we're going to give you three accounts eleven of whom who hasn't written  hasn't written business for more than a one thousand dollars a month and to others that the company entrust is thinking of terminating that's the evidence and then she's given a  a goal of seven hundred and fifty thousand dollars what's important is that's the goal she's given when she comes back when she's trim and aided she's trauma needed because from february to answering my question so our question is when they did the same thing to all the employees and used treated the same as all of us and she got eighty percent of class of back in the same thing doesn't that indicate evidence that she is not being discriminate did against because they were treating her the same as every other employee in my answer your honor is a when she came back from work she didn't get construction you've said that again and again and again and then i question if you'd answer my question parisian well and perhaps that perhaps i'm not understand so when what she ended up doing is scrambling to write premiums and she ended up writing some premiums in the construction industry to meet her goal but she wasn't given those brokers as the construction industry brokers as her clients means you didn't get exactly the same back she didn't get any construction industry client you see the evidence that was pointed to by a car i guess every other employee was treated the same they all got reef refurbished and so on i don't see  having difficulty because you haven't answered his question and made his argument i don't have that's why i want to give you a chance to do it certainly but i think i think perhaps there's a disconnect she wasn't given clients in the construction business and she was never given clients in the construction because he's and there's he was incorrect when he said over eighty percent of her cases were in the same business as before what your honor is talking about is what premiums she ended up writing versus the client she had she never had clients in the construction business at any time either before or after no after she returned from maternity leave ok now what is the eighty percent of the business council said that she got back when they redid all of the climbs and he said over eighty percent of her cape business was the same as she had before is he is he being fair with a record eighty percent of the premiums she ended up writing were in the construction business but the she was not assigned any clients in the construction business but she's treated exactly the same as every other person they all did this because no your honor because each the evidence is each underwriter was supposed to nurture and build business from his or her client base and that sometimes you did work for other people or you did work in other cars in other clients but those weren't necessarily your clients if you got if you got exactly the same this eighty percent or whatever it is as every other employee i don't see how that show she's been penalized that's the point i was making that's the question i'm asking but she was penalize because the clients that were hers weren't in the construction business from from the day she were trying to work to the day she was terminated there were other industries these were clients of hers that is who were  signed to her by the company now outside of the construction industry in out in february which when they entered the find her different clients the same as all treating her the same as all other people