base number twelve six five nine seven let's follow the brown vs lexington a it urban county government argument is not to exceed fifteen minutes per employee can pursue the claim versus the employer and in the recent case of that we filed a subsequent to the following the original case the ball promote transfer or discipline via ups and in that case in this situation mr crow one of the supervisors for the lexington failed over and county government had that authority and exercised that authority to discipline paula brown so i just i wanted to start with that premise just to be sure i mean let me ask you before you get into your that is that issue in this case occurred in two thousand and eight what's the relevance of the two thousand and five to two thousand and seven affidavits that talk about what happened in the work environment that well   paula brown had been working and was assigned a job once was returned to work in the fall of two thousand and eight that she was told that she had to do all of the work that was there and it was just a mass amount and back pictures were filed as part of the exhibits where it showed just a maybe a hundred files that were sitting in there that had not been touched off she was gone and then the affidavits of christine blue was actually referenced in the opinion that this court six circuit filed about in the ashur affidavit both of those folks left in two thousand and seven the issue before us is not whether your client had a private fashion case that was the first appeal it's whether the employer's reasons for terminating people who left in two thousand and seven have to do with whether reasons were pretextual in two thousand and eight while from the standpoint of what paula brown had encountered previously under the working relationship that she had with the supervisors and he was there to observe and report the benefit and he was in a position as a one of the think that should be reviewed specifically so that i don't have to spend time going through it but it is the the barry of key opinions that this court rendered relative to the fact that you know the case should not have been handled and disposed of by the judge but in fact that was a jury decision made this court was very specific about that in several places in that opinion so just the relative to some of the situations while serving under the supervision and this was the court's opinion the defendant's dury crow george dillon and stephanie northing and brown complained to an employee assistance program specialist about the bullying behavior and then went through the deep tales of that and stating that according to the coworker when brown was confined to wheelchair after an injury will do on another one of the employer managers instruct coworkers not to a sister it goes on from there to the fact that when the plaintiff filled out an employee grievance farm in which he sought to hold defendants by dylan and crowe accountable for unethical yes that's correct you say that with inappropriate or improper because there existed a genuine issue of material fact as to something tell me what the genuine issue of material that is that summary judgment improper in this case well or the this this court itself stated that specifically in that it was not a case to be tried on from or a judgment but in repeating that to when we come to the smacking his fist and shouting i told you to stop asking other people to do your work for you but but what i'm what i'm trying to get you to do with sort of focus like a laser on the question and so i want you to complete this warming summary judgment is inappropriate in this case because a genuine issue of material back exists as to whether bill in the blank and whether or not the supervisors mistreated paula brown in their their action for instance her media supervisor mr northern but just mistreatment if it's well it's not grounds for necessarily for action under title seven there's got to be some kind of individuals at the time she was employed there for blacks were there and at the time that she was terminated on december the thirty first of two thousand and eight then the next day there were no blacks in the department at all and just the remaining forty whites who were there and the action bush specifically you know  though that miss brown three times refused to obey crowe's order not to ask the receptionist for help during this one blowout that was part of that the basis or well but in the it is true though right if she thrice refused to follow the orders yes or no is that true she'd she did whatever work was a wasn't so instructed i guess there was a letter that came out about the work that she should do supposedly written by a missed northern who didn't have the qualifications for her position but in that letter when it was actually filed with brown that in her testimony was that she didn't sign that letter and that the original date was dated the in may it please the court mr stewart i'm tracy jones and i'm here for the county government and i'm too pleased to be here this morning to talk about this case that's been going on for some time but first i think  i would like to refocus on what i believe the issues are for this appeal since we've already been here wants before and it's my understanding based on this court's june twelfth two thousand and twelve opinion that the issues that were addressed by the district court on summary judgment war for the second time or whether or not the suspension that miss brown was given on may first of two thousand related to an incident of may first two thousand and eight and whether or not her referral for evaluation and for her ability to perform her work duties in july of zero eight were retaliatory in nature for her filings on of any e s c complaint based on race and sex under title seven those are the issues that this court sent back those are the issues that we addressed in our motion for summary judgment in the district court and then those are the but your honor at that that i think was the issue that the court considered we sent it back and the when it came back it was it was my understanding that the reason that it came back was because the judge had determined that there wasn't a and this court thought that there was on those issues however we did not argue because it was dismissed that early on the pretext argument so where we filed our summary judgment motion we argued that although there was some temp proximity there that there was also a very clear legitimate nondiscriminatory reason for the suspension that occurred related to the incident in may and in arguing that we talked about the issue of the blow up at war in fact i think there is no factual dispute if you look at depositions and you look at the affidavit of mr crowe as well as the deposition of mr brown that despite their their disputes or inability or or what ever was going on their ability just to get along in the workplace he was the director and he did ask her to perform duties that were related to her job on three different occasions and she didn't do those and that was his basis for suspending her she was treated this probably in the quality of the work it was impossible for her to perform and then when she protests that brought on the blowup if that's her argument and this sort  of gets precipitated the blow up what does that do to your to your argument or your are i believe that the work that she was doing as you know issuing these permits which is part of that divisions work going on before she made any you know see can point and there's been no evidence introduced that it was drastically increased or in any fashion after that there and  work was completed the later that day by other by other people fairly quickly according to mr croes affidavit so it was really not an issue about the work it was an issue about the working relationship which isn't isn't a basis for title seven or tele ation and that really wasn't the the the basis of her complaints when he was asking her to do the work she just didn't like the way he asked her to do it and continued to go back and forth with him and with the deputy director rather than help the customer are you talking about the incident that involved in this would yes that is the incident worsened it was asking what about ms was affidavit were she says crowe was overly belligerent and threatening we were self left the building crying at cetera i mean isn't there a genuine issue as to sort of who was at fault in that incident then well i think the question would be even if that were true whether or not if he was behaving in that way it was being directed at miss brown as a result of retaliation for the c e o see comply in mr croes affidavit while he says he was aggravated he says he was aggravated because he kept having to ask that the work be done and also that it wasn't getting done and that a customer was waiting so i don't think that there is evidence that even though he may have been mad and i'm not going to tell the court that it probably wasn't because he probably was that it was a basis for retaliation it was a basis for getting the work done on that particular occasion and much the same true when she was sent to  which is the employee assistance program for an evaluation for her car which is the other issue i think that is back in front of this court as to whether or not the mrs brown established pretext for that the reason we gave the reason you gave is these e mails and i would imagine particularly the june twenty fourth two thousand and one that would be correct your honor that e mail in conjunction with the other ones that came in as well as the interactions between her supervisors her coworkers and the division of human resources that was regularly encountering are there was some concern particularly based on that one of the think she expressed as to whether or not there was you know something going on with too much stress that was going to impact her ability to do her work again there was a reason established for that it is not uncommon under those types of circumstances and it wasn't based on retaliation and there wasn't any evidence to the contrary introduced by miss brown that it was so when when you know when she came back to work there was even some effort although that it's been made into an issue that the plaintiff is arguing it was retaliation in this case to try to work with that doctor who didn't peeper off work for several weeks to reintegrate her into the workplace not to retaliate against her but and to pay her for the period of time while they were trying to do that the one thing i do want to see her once and immediate i mean wasn't there some in the car and there was some lag in the time what's the employee assistant to the employee assistance program if the medical doctor that sees them or the medical provider determines to take them off war nor normally not just miss brown but most employees are asked to use their sick time or whatever they have during that time period the issue here because that's out of the government's hands once the the medical providers say you know i need to do further evaluation or i think this person needs some more time from work we can intervene and say no we want you to send him back we have to wait till they say it's ok with us to come back once that decision was made and we we attached e mails from mr jarvis to whose he was the  manager and human resources handling this to the director of human resources saying they have determined to return to work at which point did come back into our court and we have some questions for him based on what he reported to us about the best way to do that so we don't have any more of these blow ups at work and he was the doctor was on vacation so they at that point tom and i think the e mail is dated september the first from mr jarvis to mr allen  let's go back and let's not only pay for the time we're going to spend trying to talk to the medical provider but let's go ahead and just pay the entire time that she was off so the payment wasn't made immediately but i don't think that's the issue while the doctor risk keeping her off when the government extended that time to talk with the doctor she was ok so again there's been no evidence to contradict that and i think that's what the district court judge was saying in his opinion is that you know once those reasons were put out there there has to be some type of a of a argument put forth by the point of in some evidence to show that those really are legitimate  standard back to the but for issue on you know but for the issues that we've presented you know those things would not have occurred but for i just like to ask you i understand  the terminations was subsequent issues when complaints that came from pesta myers and her abilities serve them after she came back all that was my understanding from this court's opinion in june of last year that the terminations was so far removed from the activity that it wasn't going to be considered as retaliation or ok so the only retaliatory action we're dealing with here is the referral and the suspension different than what we brief because it came out later i think it does change the standard back to what what it was or more more definitively clarifies what it is and i think if if a review of our pleadings and the opinion from the district court show that if since there have been no other real reasons put forward other than the reasons that the government has issued about it's not unreasonable and we cited cases in our briefs that in our brief that talked about you know just suspending someone or disciplinary action for instances that are clearly violated you know violate the policies are not adverse or are not necessarily retaliatory so therefore that we established a good reason with that and there is nothing that has been put forth to show that that was pretextual the same thing would be true in regard to the referral and the time off related to that the same standard would now apply under the nasser case and we put forth those reasons both from the medical the medical wesh now which is in this case it's under seal the report from the physician but times in the crow incident what's your response to that and the best thing i can tell your honor about that is that we included in our brief and it's also attaches exhibits to the the in the record for the summ judgment the deposition transcript who's miss browne's and she talks about you know the when he first approached her that she got it she talks about going to leaving going to the deputy director she talks about coming back shucks about mr crow coming back and telling her again and she talks about you know leaving her workstation entirely and going to the other building so again while their dispute may be as to each other how they related to each other which isn't a title seven violation there is no dispute he asked around at least three occasions that day and those permits were not done and that's further evidence by the fact that other people had to do him later on in the customer still sitting there let me ask you could the jury infer retaliatory intent based on the fact that jervas refused to ever meet with brown to discuss her suspension or to schedule her the appeal of her suspension could the jury infer retaliatory intent from the actions or inactions i don't believe so your honor because miss jarvis there is evidence in the record both from e mails back and forth and that she wasn't engaging with miss brown so she was modern though that she was talking with her e mailing her back if she was out for a period of time based on the doctor so i believe that that there was no way they could meet there and the appeal actually was part of the terminations hearing because she was gone during the time the terminations caring would have been scheduled but when she returned when the suspension hearing would have been scheduled when she returned to work then they had to reschedule which put it in line with the terminations so i don't believe that that would be accurate you saying that if a person i suspended because they are suspended the the hearing would be put off until they somehow got back on the suspension with him and you could see that that normally is how it works at the government they have a hearing date because it's civil service hearing which involves a panel of citizens and they're scheduled once a month and so they are sometimes get scheduled far out thank you that starts would you have any questions i don't think you are ready thank you for your extremely important to look at the fact that the letter that the supervisor wrote that was missing or linked in was you know not something that she had done and she testified and admitted that she had not signed the letter and it was a letter that obviously was created pictish of sleep because of the dates that were on the letter u as a said originally with the may day and then the subsequent dates on pages two and three showing that it was not written until i think november the twentieth of mr stewart yes ma'am can you walk tell me where in the record that matter appears i know i've seen i can't find it you have a reference in your materials or should i just keep walking your honor but see there was a that letter so the terminations itself is not at issue in this case only the suspension or referral but you're saying you disagree with that's or disagree with that statement because it was as a result of the action that occurred against or middle previously and and documented and that doesn't surprise me with regard to the referral itself i mean when one reads this june twenty fourth e mail from your client to  several folks lane blevins and james i mean are you saying it's pretextual after somebody gets this e mail to have a concern about that person's mental well being with the situation and the amount of work that was being done in the back that my client dealt with buyout thousand customers a yea and when the actual accusations were made against or where the individuals were prevented there were three individuals prevented by the lexington ever been county government and the content of their testimony relative to mr brown was not true of them was not contesting or challenging what she didn't do at all just that at the one of the individuals among the three was amended bedroll that her supervisors that said that  came in then she was to be referred to one of the other individuals who worked in that department and in the nother situation the second situation at the time mr brown had gone to the restroom prior to the time that the customer wanted to be saying and but with in dealing with all the others and many times and she said that of the nine employees that were in that apartment there might be five of them in the back room or outside smoking and she had the responsibility for handling all of that and with dealing with five thousand people customers and there being three not even complaints actually of the individuals that they call there were only three and she was one of the you know top performers in that department and thank