mr lauren sure before you argue i would like to tell everyone that the court will take a recess after this argument we have a different panel hearing at least as to one person hearing the franklin cases there will be a recess at the end of this the court welcomed her on the earlier cases and then  whether there's a triable issue of fact we're guarding pretext with regard to that we believe that we presented much evidence what you took talladega would allow or try are facts to reasonably infer that the stated reason drug diversion is a pretext the evidence begins with ms murray's own testimony in which she has adamantly denied diverting drugs well but i thought that that  that she was fired for drug diversion not suspicion or drug and that is important and it is a real difference between the two while it could be the difference between suspected of a crime and actually committing a crime in this i mean my understanding of the case which may be imperfect that this one is that he we've got a nursing home manager who gets a complaint from a point from a patient which gives her reason to suspect a drug diversion who makes an immediate check of the records as she should do finds information in the records which she says and i realize you may argue  which she says convinces her or that there are some irregularities terminates miss mari on that basis and then in a subsequent begin an investigation so it was initiated by our nurse gage who was a friend of the other nurse doody who we accuse we suspect of diverting the drugs with regard to the border nursing the only agreement is that for you it is very important the distinction between suspected drug diversion and proven drug diversion in situations like this it's not going to be very c that the employer has actual proof of drug diversion but the employer may well have strong suspicions sufficient to warrant disciplinary action or a separation now if the employer i q lation were simply suspected drug diversion in your view do you continue to case yes and i think we do know and now i'm not interested in the facts i'm interested in not interested in the legal conclusions as to this question of course i'm interested in the facts and we've read very closely what you've done but if you have a reasonable suspicion you are a diversion wouldn't that warrant a separation  nurse from your employment well to answer that question or want to what we should do when what he saw does is look at how the facility treats other similar situations and this particular case the plaintiff had gone war times bringing concerns about nurses dooby with suspicion of drug diversion and yet after each of drug diversion i thought the i thought the complaints me that she says that you made were about drug use not about drug drug drug use in drug diversion right because at one point there was there was some there was some oxy which was taken so if we compare the two situations with regard to nurse to be no action taken so the best way to look to see what the practice is what the facility did and that particular case they did nothing so your case then depends upon  this similar treatment similarly situated there is no your honor this is a case which involves a tally of the evidence we've presented eight eight separate types of evidence which taken together  don't this isn't a question of eight types of that evidence this is a legal as well a legal question involving evidence ways to ways to establish a tribal issue of fact and we've presented eight different types of evidence recognized by case law to be evidence from which a jury can look  disparate treatment in terms of how they responded no no no i realize you see the way that she you know from right on this and she hadn't responded the same way in doobie but i don't recall anything in the district court record that indicates you made the argument that i think you're making too she judge lynch now as they treated two similarly situated employees in disparate ways it we didn't we fact we didn't even limit it to do b there was also a nurse campbell who had given patient number two oxy code on the night before he ended and shouldn't two who had cognitive ability our cognitive problems of it was evidence of suspicion to investigate but once the investigation was done a jury could look at it and say there's nothing here there's nothing here to sustain your finding for your time in addition and that's the tribal issue found the company has a fired her claiming that she actually in fact diverted drugs and the evidence is clearly in conflict on ash and in terms of how they actually put their policy into practice that is in dispute look all you have to do is look at the way marie was treated in comparison to the other nurses speculation side of this one of the court has sex between reasonable inference and speculation the district court was correct in granting summary judgment because the evidence of causation does not support the inference retaliatory but i note briefly here that in because this case washes under the main human rights act in the main whistleblower protection act the the causation standard is bought for causation so that means that would have needed to produce evidence from which a reasonable jury could conclude that but for her reports to got told about to be she would not have been terminated and obviously our view was that she can't she can't meet  with what's the point at which we look at this i gather from your brother's argument that the bat i take some indication that he seems to think that we should look at this as of the g that is after guptill completed her investigation and asked the question whether this nurse would have been fired in white of the results of that investigation if she hadn't complained about the duty well i believe that's correct your honor i think you have to look at what was in the mind of god talk when she made the decision to terminate so that means all of the other tips relating to the  poor documentation that led to her suspicion about drug diversion and it also includes what the plaintiff has put forward taken in the white most favorable to the plaintiff as evidence to suggest that her reports about duty were and in some simply because she resented the complaints about the movie is there anything in the record that shows any special relationship between come to an end to be or any investment i got till the end to be as a person or as an employee was the only supervisor for the second ship but as the as the district court noted with respect to that fact below its admitted speculation there was no evidence presented in the record to show that she was in fact the only nurse available to serv supervisor on the second shift so it was it was really not of an injury quality and should not have been it would not have been really relevant or pertinent to this question so beyond that there's and there is no evidence to suggest that this your honor i would say that that the diversion of narcotics is something the nursing homes are very concerned about very diligent about and in fact it is an ongoing challenge it's not something that happens how  of worker because this is right there were two or two reporting obligations here one was to the licensing authority which is the department of health and human services and the second was to the nursing work so they had two  that this case should go to a jury which i i certainly don't believe should happen i just want to touch briefly on the issue of judicial stoppel which is an unusual issue but one this court has dealt with before  showing deliberate dishonesty which is in fact not an element of judicial stock when it created it placed great emphasis on the lack of unfair advantage against my client but my class role in this is irrelevant the issue is protecting the integrity of the court against people taking inconsistent positions which is what this is all about and the case law in this circuit and particularly in the fifth circuit there's a case right on force with this robinson case which we've cited where a chapter thirteen debtor brought an employment claim without reporting it on her schedules and was stopped from doing so on a very similar facts so for that reason i if the court gets there i would i would urge you to to see rule that this case should have been