counsel on monday the supreme court issued a decision in the paula vs cotton case which was very critical i think of the way that the summary judgment was approached in this case by the district court and that's the clear misapprehension that it's doing which is that the court in this case there's a five minute for a factual perspective there's a five minute window in this case that the events that occurred between this good side mr ross to this on june tenth of two thousand and ten where the parties account as to what happened is diametrically opposite to each other as to whether are there i mean certainly the evidence in this case creates there are some genuine issues of fact i think the question is whether they're material now this i mean that's kind of an  overarching question that i have about some of the arguments in the case well of the principal issue as to what did or did not happen on june tenth is whether or not this good site asked for permission to leave it was given permission to leave she testifies that she was i mean to leave his office or to walk off the job i mean that's that's one of them i mean i agree we have to assume she says may i be excused but you know is it is it  mean may i leave the the work site princes all together that's that's not so clear and i think that's a question that a jury needs to decide what one person wants that that would be an excused absence from work if you were to simply say may i step outside your office i don't think that would be indicating can i leave the the this is different from me i'd be all i mean so in that case would you agree that the employer you know if they did everything else here that that's a proper determination as she walked off the job we have this is heated discussion about whether or not the graffiti had been removed we have mr ross who looks admitting that he was injured in upset with her and her it what he perceived as an allegation that he she was making that he was lying about having done that we have from now we certainly can infer that there would have been that be a retaliatory intent she asked if she could be excused your testimony as you said yes now is it a reasonable conclusion from mantis he was asking to be excused from work she had a history of not wanting to work the single positions that she had made quite clear and he was very well aware of that there's a dispute in the record as to that you know that she had manipulated her attendance at work for months to not do that i mean doesn't that suggest that there you know if she actually just refused to do it that's why she left that day rather than getting permission i wouldn't use the term manipulative because there's never been any in any indication that she was acting improper in doing that in calling off or changing or working out different shifts she had the right to do that in that clip of bargaining agreement and they have never intended that  manipulating their schedule i think misconstrues was what is going on here in the past had he ever excused her from working in a particular position but when she had as just c alluding to changed around her schedule to accommodate her preferences she was never denied the opportunity to do that because i believe she did have a right of the bargain room and to do that and to avoid working in certain situations with certain people or the people that she had thought might have been responsible for the graffiti the people that she had pointed out specifically with respect to the train services were the ones that she didn't want to work with well i mean and i mean i understand certainly that you're arguing her dismissal was a retaliatory action right but some of these prior actions which i think you're also saying are dismissal are retaliatory the graffiti i mean it is undisputed isn't it that in response rosko vic's tells all the workers that that stuff's not going to be tolerated he tells the supervisor i guess to painted over he tells  supervisor to check the bathroom daily thing to see if there's graffiti and there in that she doesn't complain further between january of two thousand and ten and june two thousand are those all is that common ground in this case factually no because she had she had complained before june tenth two thousand and ten about the second round of feeding that that occurred and when was that comply that was in i don't remember the dates right off the top and he said she had made a complaint to the e o office a ship out in the u c charge may seventh she had made some additional complaints to the office about the new graffiti that she doesn't go back to rosko vic's i guess right well she goes back response responsibility rather as the really really our managers is ultimately responsible to make sure that it's removed and that it doesn't occur again and her testimony is it wasn't removed but my as a fashion question this temporal does she she goes to roscoe vic's in january he does all those things which seems to show he's taking it seriously she doesn't go back to him for another five monsta say it's not cleaned up or you know they're still doing this right right but she goes back with a second complaint about the graffiti and the other late may or early june which is itself another protected act she had ma decker those are also protected acts how do you ken i mean i understand your point that there's testimony that roscoe vix is mad when he's accused of lying i mean not an unusual reaction but tribute that to him how do we then attribute this sort of retaliatory motive than to what's the guys that think it's wanny or something how do we then sort of all right you know seven weeks later sweeney drives up from alabama has a meeting to my knowledge never he never speaks with roeske of x there's no evidence of any concerted action between him and that i can see and that's why i'm asking you because you know the record better than i do how do you connect his decision to terminate and i know you don't like the procedures but how does how does he become serve an avatar for rosko picks well i don't have an issue with the procedure the rule twenty one procedure is sort of the bargain agreement and it's a lot better protection a lot of people have but then even then hearing if you review the hearing transcript of from the rule twenty one hearing this still boils down the roster of x s account as to what happened on june have a biased supervisor whose actions influence an unbiased final decision maker might influence their i mean i thought influence was sort of you know you're the one person sort of can you know get the vibe that  what the boss wants and they do it even though they don't share the emotions so to speak i mean listeners are required to show the emotions are required only to act upon those emotions even if they don't particularly when they don't know that there's a bias how does he act catspaw when he doesn't you know there's no connection between rasika vic's motives and this guy's actions in any way he just takes a separate look at it and says you know animists can be reflected in his testimony after rule twenty nine hearing as to his account of what happened and mr sweeney had just had to make a choice between who he believed to be believe this r honour's i'm heidi hartman i represent norfolk southern railway company and mr ross to fix the general foreman at the bellevue railroad yard in bellevue ohio we believe that the facts in this case and the record supports viewing it as a straightforward retaliatory discharge case based on her removal from service and her discharge not these other secondary issues that mr heron raises in his brief we think this is the type of case that is precisely contemplated by the supreme court in nasser as the type of case that is appropriate for separate judgments just because an adverse employment action exists and just because there is some protected activity that doesn't mean that there is any link between the two that's what we really need to look at here and that's what's totally lacking in this case we think that there are three very important and undisputed facts that provide the framework for what we think your decision should be in this case first of all before the decision to discipline or penalize ms good so i was made she had an opportunity to have a full fair thorough hearing before an impartial hearing officer and that is mr sweeney that's pursuant to the collective bargaining agreement between her union and the company and that's what mr heron admits today you know gives her better protection than most people this is an extremely unique procedure you know before any decision is made to discipline an employee under their procedures they're given a hearing they're given the opportunity to sit and listen to all of the evidence that either supports or whether it is a matter of law that a limits and he kept argument well i acknowledge that in this court's chatman case there is not a purse defense because of an independent about investigation however i think if there were any defense available to any employer this is the case where it could be in existence because you know we have an impartial hearing officer coming from that's the case under two other circumstances first where there is retaliatory intent and second where there is proof of proximate cause and there is no retaliatory intent on the record here  heron has characterized mr roscoe picks feelings as anger that's not supported by the record if you look at i'm sorry but it's sounding like cheery argument to me you're saying that there is no genuine issue whether he had retaliatory in terms well he he said he was not angry well we're he surprised if he said he was he admitted to being offended and upset but that doesn't give him a an intent to retaliate against ok so i'm just asking you a well i agree that we have to look at the very facts in light of in the light most favorable to her i don't think that there is a reasonable inference that can be drawn from her statement may i be excused that she had authorization to leave that's another one of the undisputed important facts that i'd like you to keep in mind as you consider this case that is she admitted good that she left the premises without telling any supervisor including her being excused to leave the work site altogether but i think we have to look at what she asked she didn't say may be excused from work may be excused from the shift use a vacation day or personal day to not work today she was in a closed door meeting she had been told to do a job that she didn't want to do she came to mr ross to fix office seeking the opportunity to be relieved from then he had a discussion with her and the e o officer where neither of those two norfolk southern employees gave her authorization not to work that they told her the job was safe that they expected her to work at after the phone call ended the conversation proceeded with mr ross to fix only she asked for relief from that position and he told her no i expect you to do the job you're not going to get relief from that job she said may be excused they were in a closed door office she walked out of the office and if you look at the rest of the record that rest of the record does not support any finding that mr roscoe picks expected her to be gone he was in his office mr davis came to his office and discussed what had happened during the safety meeting where ms good site openly refused to do the job that she had been assigned to mr ross cavitt said well let's go get her and bring her back and talk to her because he expected her to be out working the job that he told her he had she had to do so they go and they look for her you know the actions of mr davis and mr ross neither of which are contradicted you know they're out looking for twenty minutes they discover that she's gone mr davis continues to look for her for the rest of the picks has to go in shut down another job inside the mr davis what continues to look for her continued to check around the yard to see if she came back because they didn't expect her to not be there is the relevant question whether she thought she had permission to leave or whether they thought they gave permission i think it's whether they thought they gave her permission to leave and why did because it makes sense but why do you this goes to the argument of pretext your honor i think that you know judging the facts as they are on the record this employer mr miles mr sweeney on behalf of the employer had an honest belief that ms good site did not have authorization to leave and therefore she violated norfolk southern conduct and safety rules by leaving without authorization he told ross could be said that he didn't have that conversation into the cat's paw because the decision maker was relying on his account i don't believe so first of all there is no evidence that he was being untruthful there a issue of facts between her and him they don't agree that she asked may i be excused he even if she asked may be excused again looking at the record the full record all the facts in the record it doesn't suggest that she had permission even if he said yes to leave the premises what it gives the inference that it raises and she had permission to leave his office and to stop the discussion that they were having with which she was quite please the honest belief doctrine i think provides a basis for granting our motion for summary judgment mr swain e was able to take to hear good site offer extensive explanation for what happened she was able to offer witnesses on her behalf she and all three of her union representatives were permitted to question all of the witnesses vic's in front of mr sweeney she was permitted to make arguments her her representatives also made arguments you know they had a full and fair opportunity to present all the facts to mr sweeney and mr sweeney relied on the particularized facts that were before him which include first her admission that she left without telling anyone that she was leaving you know if you don't tell someone that you're leaving you can't really reasonably expect them to know that you did and the facts here show that they didn't know that she left also look at her admission that she was openly insubordinate to mr davis during that safety meeting  refused to do the job that he assigned her to do more than one occasion in front of her coworkers well she believed that he was changing the rules right she believed no i don't believe that it's a case and she believes that he wasn't assigning the position to her properly under their seniority so that's what i mean and that's the same argument that she had been making all along and there wasn't a change she just believed that when she bed for the yard position on second shift she waited to do it until she thought that she held enough seniority to hold the job and that she preferred the job that letter walk around and get exercise when that became not the case because other individuals been to the same shift and they had greater seniority than her it became the circumstance that sometimes she had to do this job that involved driving around in a truck for the shift and not getting the exercise that she preferred getting and she didn't like that and so she did as judge catholic pointed out change her schedule work with her schedule take vacation days or personal days when it was clear that she didn't have the seniority to hold the job that she wanted to do i don't disagree that you know she had the time available to or she could use it the way she wanted to but she gave this employer notice that she was not going to show up and do the job so they could cover it you know they had employees who could who could work and not leave them in the lurch the way that she did on june tenth when she just walked off the job without telling anybody that she didn't intend to work big state to characterise it as that because mr davis testified that the proper procedure if that is the situ it was for her to go to mr roscoe vic's and see if she could get the or see if she could get him to change the shift but more significantly those actions been lying about having removed the graffiti and before his admissions that he was offended and upset with her for accusing her of lying if the situation in this case had simply been her telling mr davis any other coworkers no i'm not going to do my job then walking off even if there had been other protected activity right up until that minute that would be insubordination let me ask you this but davis isn't the one that set the process in motion r testimony more believable than the other bericht and if he chooses to believe mr roscoe accessory which he did and mr roskam existence the money is tainted by his biased because of the events that happened in that five minute meeting meant that she could leave the plea the premises as opposed to his office because that's what she was asking can i leave her into an innocent question was going to leave the premises and again how a jury wants to interpret that they may say i'm dead wrong they may say said yes she said may i leave and she left like left and if that's the information that was given to swanny would use still have a cousin  she came in this is exactly what happened she came in we discussed this she started talking about the graffiti i got a little start and it was you know i didn't give her permission not to work the job and  said let me think exactly what she said she said may i leave and i said yes you can leave and that's the last i saw of her so he gives an account that is exactly like her account ok if i found a stranger question probably my time's running out if he asked if she could leave and she left but came back to work the next day the one big case because it would have been terminations if he had said yes you can leave and then decided to terminate her anyways claiming he didn't save you to leave the nest or would be then yes there would be a case i hope i'm understanding you're asking you if he gave me the exact accounts that she gives and didn't lie about whether she asked to leave well again it's i'm not sure that that's going to make a difference because the prison what happened after rude words which was the removal from service in the used edition of the disciplinary proceedings if i understand your question correctly if he if he said yes i told her she said if he yes she asked if she could leave and i said yes she can leave and that was the end of it we wouldn't even be in a room twenty nine disciplinary pursuing because he would have given her permission for the leap to leave that day what if in assuming she comes back to work the next day  saying is that he gives an account that is just like hers and he says and then when she left i believed that she was leaving without authorization because of the nature of our conversation i did not understand myself it's giving her permission to leave the premises and then you have a hearing and she says well i understood it to be and s all the facts i mean both of them are giving him the same facts and he makes a judgment is that would that be yes obviously would still would if there still are retaliatory animist underlying his testimony if there were twenty nine hearing as to what happened then yes there's still would be against publishing ok even if it's so is that the retaliatory animists underlying is testimony or retaliatory animists in removing her from service and instituting the disappear proceedings on the collective bargaining so it's that's where the entity is a disciplinary president his subsequent testimony at the hearing in support of his actions of that tool is tainted by