mays who is a twelve year employee of winco she had excellent performance she was promoted to the p r c person in charge of the freight crew well mark wright was the store manager and dana steen took over means yes all right and that is what evidence is in the record with regard to ms teams role in the terminations sure your honor so as far as what is in the record with regard involvement in the termination decision first and foremost we have missed ian's own testimony from the unemployment hearing and at that hearing she said that she was involved in the decision to terminate ms mays is at the hearing is  so that was the testimony under oath at the unemployment hearing thank you correct and can you did she give any elaboration on what she meant by participated she she did not at that time however there's additional evidence in the record of her involvement including when cohn's windows on discovery responses stating that she was involved in the decision to terminate mays as well as steven's own testimony that she had conversations with mr samuelson both before he came over to conduct further investigation of the cake issue as well as after she had left on vacation she acknowledged she had had a couple of phone for a number of questions related to that however there is still this problem of her involvement from the get go and the cat's paw theory under starr and so even if you remove her from the decision making process there is no doubt that she is the one who initiated this investigation as against me well i mean i'm looking at these in iraq a tour is an after they get done saying that they object to the phrase decision to terminate is ambiguous etc etc they go on to a den of five mrs dean and they say the following people participated in some manner in the decision to terminate and then they go on to name series of people including misty and was there any other further or different evidence offered by one co that she didn't participate i'm sorry that that she did not purchase right that she did not  i mean everything i say says she participated it's not elaborated but is there anything that says she didn't participate i i don't believe so i mean i think there's no doubt that she was part of this process from the beginning and she was the one who chose to include mayes in the investigation so i think it's pretty clear that she she had at a minimum involvement from the initiation of the investigation but i also think there's significant evidence in the record of her active participation in the decision made  s deposition and essentially did you make the decision to fire she she was and she what she stated was and that was in the context of scott mccartney and him being the individual who actually did the firing right and so when she was asked did you direct scott mccartney to terminate ms mays she just said i don't recall she didn't say no so so i think that's indicative of the fact that you know there's a question of fact as to did she actually as to who actually made that decision and steams involvement in that is that is so critical obviously because of the comments that she's made regarding ms mays saying that she did not want a male in the role of the chair of the employee safety committee remarks right yes the district court did call the stray remarks and i'm not sure under what scenario you can say those are straight remarks if you look at it says ition i don't mean to interrupt you but it's your opposition those are direct evidence or that those remarks are circumstantial evidence well i think they can be considered under the pretext and else as well but i do believe they are direct evidence that can be relied upon to preclude summary judgment in and of itself in in the main is curry actually  it's noted that even a single comment from a supervisor was involved in the terminations that is indicating indicative of discriminatory and rest is enough to preclude summary judgment comments where they're here so here we have the comment when ronnie white replaced ms mays as the safety department chair and mistiness added because she did that because he was male basically and then we have twice where scott mccartney made these statements to ms mays that steen didn't want a any i just want to make sure i think you've i think you've got them there's so both the comments about basically a male being better in whatever position she's referring to and then the comment about the child care which which may be more sort of  you need more context to understand why that's discriminatory knowing that mr olsen would likewise leave to deal with childcare duties but he never got the pushback that ms mays did about it  but i believe certainly there's absolutely direct those comments are direct evidence they're not straight remarks you don't need extra color text i understand that we're referring to ms mays being female in her role as freight crew supervisor  correct so the process changed at the request of the bakery so whereas previously when and she had been told by mark wright how to engage in this process was take a cake off the shelf put it in and store use log and then it could be used to help motivate the freight crew on days when they didn't want to say later you know those sorts of things but subsequently when the bakery asked her to just take something out of the stale scart the action of putting the cake in store you slug was stopped because kick out of the stables card what was the evidence if she took any fresh cake i was sure so yeah so is that any that would be historically based upon her own testimony that yeah i did do this and it was part of the process that i was told was the process i was supposed to follow and that would be demonstrated in the in store use logs but unfortunately they were very sporadically produced and preserved and so we just don't have the benefit however we do know that the other items she testified were taken for in store use for the first similar reasons they do show up an in store use log on the few dates that we have so chips pop rolls deli trays those sorts of things that are always there and contrary evidence on i mean she has her testimony that before we have the stale cake policy that she records things is there any evidence that she didn't record things other than that they've lost or misplaced their logs i don't believe so i don't believe so i don't think there's any evidence of  that i also think something important to consider in this is on the pretext issue the facts that when co could not get its story straight on who actually made the determination to fire ms mays you've got stories going all over the place of who did what and when but no one would actually take responsibility for making the decision and i think that's pretty indicative one employer can't give you a straight answer as to who did the termination of a pretext and that something else was was going on in that so did she do we have a situation where the testimony from each of these employees who are listed in response to the iraq or tory was that somebody else made the decision it wasn't me correct i don't know who did correct so yes you'll take the deposition of the other witness and the witness says the same thing right and in fact so the district court concluded after and footnote eleven of the decision that it was h r that made the decision however the h r thirty six representative said i don't know why people are saying we don't you know disagree if something is legitimately theft or dishonesty then if you argue it would be serious misconduct in the practice who would be to deny those benefits correct so we agree with you that that there's a trial issue over whether or not it was in fact serious misconduct or rather discrimination and presumably those issues would also fall as well and would have to go to correct correct right because it's immoral in fact do any of the claims isn't that t  hinges upon whether or not she was you know basically terminated for discriminatory reasons and this whole cake issue really in the practice of it and as does the fair labor standards act issue because the reason that winco did not pay out her wages for vacation was based upon that gross misconduct provision in this alleged c v a so so in fact if we say she didn't commit gross misconduct i'm not sure that this court has to actually even reach the c v a issue  may please the court dean bennett for winco holdings incorporated winco request that the this record be affirmed and all causes of action be dismissed i want to make three initial factual points that i think is going to help in context for my argument the first if that's all that we had in this record then i think i would say there's a failure of proof on the part of the plaintiff to establish the travel issue of fact on pretax but that ignores all the other evidence that ms all rich just went over in great detail as to whether or not there may be a distinction as to why they fired ms mays even though it may or may not have applied to mr mcinerney i'm not sure i buy the argument about well he took a fresh cake and not a stale cake i think the issue is over into caves took place before stina knew who was involved should know who was involved and it's also under speed is that when seen involved loss prevention be independent department winco assigned to do investigations there was one ploy employee involved it was nick mcnally it was a male employee that's how this whole thing got started the third high contextual point mays was terminated for theft and for dishonesty the dishonesty aspect of may's conduct undisputedly had nothing to do with steen it had to do with mays saying my former manager mark wright gave me permission to take the way i've taken him the lead invest called mark right after he suspended mays so we could check out her story said mr wright did you give may's permission to take a six and he said absolutely not that's a dishonesty component and you'll see in the a s four hundred termination mr olson testified along with a number of other people that there had been cakes in the break room and there are cakes in the break room under appropriate circumspect didn't he also testify that he understood that this was the practice that was ok to take the still cakes for the  he said i think he did counsel i think there's that that that testimony is in the record isn't it i don't recall specifically i know mr olson i mean the problem is that there's conflicting testimony from when co if you take the former employees testimony and stack it up with the testimony that kristen is referring to isn't there i don't think so because in the limo case particularly for the discrimination claim courts only require an employer honestly believe it's reasons for its actions loss prevention was the one that doesn't that's not the answer to whether there's conflicting testimony there could be conflicting testimony but it's not material loss for vention talk to mark right loss prevention did its analysis and loss prevention came to the conclusion of dishonesty and why couldn't a reasonable juror decide to decide that she was fired for gender related bias the only connection to gender in any way are the supposed to direct evidence which i'm happy to address those comments specifically chair of the employee of the chair of the safety committee and the undisputed evidence is seen doesn't determine who's on the safety committee or who the chair is that's not her decision so that may set another employee told her that steen took her off the committee that wasn't even  responsibility of seeing to do it's not even her job it was also can textually and in temporal proximity to the termination decision it was at least six months beforehand and is not connected to a  terminations it's separate from a committee and she was already off the committee steen wasn't involved in that and you can look at the testimony there are about four pages of miss may's deposition testimony were all these allegations come out and you can look at those and there is no can textual or proxim testimony i felt like i was putting steen out may's subjective belief about what steen thought about her child care needs is definitely not direct evidence of discrimination what the facts are is steen has children steen promotes female employees there's rely on that's a case where you have rock stacy who gives jokes about females body parts about their menstrual cycles says i don't want pregnant people here i mean there are a litany of about fifteen statements and that rises to the level of direct evidence where you take the child length case and judge reinhart's decision where you have two japanese or two asian employees and they're called a racial slur and judge reinhardt says yeah that is angry just and bigoted and that raises that level of direct evidence or you have the courage of a case that they rely on for hawkins use that same language you have hispanic employees and they call him dumb mexicans and the decision maker making those comments that's direct evidence were not there on direct evidence and that's what judge judge lodge determined i think need to denying that it was made or are you i'm just trying to get to that it seems to me you're taking a position that that's not direct evidence to say that a man would be better than a woman and i'm having a hard time with that one so i want to say it's not easy to respond with all due respect she didn't say a male  be better than a female she said that the testimony is made said the scot told her some time we don't know when and i'm not saying that that statement did happen i'm not trying to create an issue of fact here what i'm saying is she said white directly very directly and i so maybe i'm missing the i guess i need to there are all these remarks there is that one remark several remarks about when she's identified three but take any when you want and i really want to hear your response on this but he seemed very direct to me and i think we've been clear on that so what is your response please to the two responses i think if you look at the testimony and it's that e r seven fourteen a seven twenty one and look at yourself at that testimony i don't think it raises the level of direct evidence now let's say there's direct the animus for his for stand i will i will concede that point so i get to another to another argument there is an independent investigation by loss prevention and i walk through those facts with you ok bakery manager comes to scene and says hey i think there's a cake up stairs and i don't know why if there are scenes as i don't know why they were take up there when he looks she looks at some records geezer's no reason to take should be up there maybe i'll go look at some video she looked at some video nick mcnally he's there on the video steam doesn't go to we've got an employee here's employee number his name's nick mcnally he's taken cakes only when management is not present meaning that scene's the ranking official only when he's not present we think he's going to do it again tomorrow night scott you better come on over here samuelson comes don hook the head of boss revenge and calls mark wright and said mr wright did katie mays have permission to take a case in any fashion and right mark wright said no i did not say that so mays is caught in a lie is this dishonesty if you want to separate the fact of theft and dishonesty independently loss prevention on its own determined that miss mays and gauged and dishonesty and that was a basis pacifically and a termination document was the basis for termination dishonesty and theft both is there any cost of the employer my understanding was that the former employee bears the full amount of the premium for eighteen months where the cobra benefits your honor i'll be honest i'm not an expert on benefits now as to what the employer's obligation is i do think there is some cost of the employer but i could i can tell you that there would have to be unless the sole reason for denying the benefit is punitive to further punished for it's not punitive and i think it's consistent with what the statute says it says if there is a qualifying event which doesn't include gross misconduct provide notice of your ability to continue coverage and out all you're saying that if the basis for her terminations was in this case serious misconduct then under the law she's not we have a number of cases the food lion case which is the southern district which is the district of south carolina which i think is very instructive on these facts congress didn't tell us what gross misconduct is there's not a regulation that tells us what gross misconduct is judge lodge said i don't know a gross misconduct as in the case law is sparse food lion is very instructive if you look at food lion you have a grocer in the same industry with the same concerns that when cut house and the way that they took it seriously they're like ok well we have a benefit plan and we define a gross misconduct is that personnel policies and there was eight the constituted gross misconduct and the court said the food lion court said it appears congress intended each employer to tailor its definition to the needs in existence ease of it's own business and that's what happened here when co has a it's benefits plan it's its health benefits plan e r three eighty five provides for notice of continuation of coverage except for gross misconduct as defined in e r three eighty two to three eighty three the personnel policies those include dishonesty and theft and i think you can take either one of them the dishonesty or the theft and i want to go back to the statement i made earlier about the valero case well let's just have your point though if you're saying that the employer gets to define what gross misconduct is for its industry yes that's of the food lion case stance and theft is a big problem in the grocery industry but there is a problem so is your position then i think going back to what you said at the beginning of your remarks if the employer honestly believed that she had committed theft without regard to what ms deen may or could decide just follow up on judge thomas question if a reasonable juror could decide that there's a genuine issue of material fact about why she was actually terminated do any of these claims fail at summary judgment i think the answer  disputed if it's dispute or why she was terminated i don't think so if it's disputed that she was terminated because of gender and that was the reason then there's an issue of fact i don't think their materials issues a fact that arise to that level particularly given the don hook mark right dishonesty issue i want to talk about the volume of picks it is it is the law in this circuit and across the country actually and the cover artist case the plaintiffs cite for the cober issue addresses this very specifically courts only require an employer retirement either so how do we know that's just me and if you don't know we ascribe the reasonable belief that's my question we know i know there was some chuckling going on about people pointing fingers and definitions it wasn't that gosh you know i know i was involved they say they weren't involved they were all company official what we know is this is like you know we steam didn't do it steam did investigate it dawn hook came to the conclusion that she lied and she came to brad she said look this is what we found a loss prevention guy made the decision donor made it because he was convinced that she'd li it really not possible to identify who made the decision you know recollection this is in the summer of two thousand and eleven i know the court knows as you go through and there are fifteen thousand employees the loss prevention deals with her w and what happened on what day and who said what exactly when you're asked that question your deposition maybe some people would lie and say i want you try remember but when you terminated an employee it's not a question of who did the investigation the question is who made the decision to terminate or it is a collective decision between management that's present scott mccartney who was there and last preventions findings from its report and it's obvious when we know that because in fact when you go through the deposition testimony all these people were involved in the terminations you're right they were involved in the decision i mean they're involved there was right the question being rocketry what i was saying how do you know to whom to attribute this honest belief because if people were involved in different degrees although nobody seems to remember exactly ok fine so it seems to me that there may be a factual issue on honest belief there is not a fact listen belief we have a we have an investigation and a decision from loss prevention that says this is what she did and the undisputed facts are those the jury decides after listening to the to the evidence and the ambiguities and who made the decision that it was really ms steen who was driving the decision so the jury decides she's really the prime mover here then wouldn't it be relevant to consider all these comments and think there would have to be such  there would have to be inferences that are not reasonable like steen on vacation who didn't start this to target mays because you know mays was involved called mark wright and said hey you're about to get a call from donna hook who's going to ask you whether you author maze or and steam didn't know that mays had said mark wright gave me permission to that was the justification for her action she didn't know that there is no reason to believe that the mark right don her communication about  dishonesty which is an independent basis and a good faith basis for termination and even counsel so that here instead if there is dishonesty we agree that's a terminal offense in a rises to the level of gross misconduct keep coming back to why couldn't a reasonable juror decide otherwise given this record counsel there's plenty of evidence on the other side of the scale and your honor i respectfully disagree that there is no direct evidence and i'd like to that's the common practice common practice because i think that something that is troubling a little bit troubling and the way that it's presented there's out slips and there's whatever else may said she had authority to do there's no doubt management can get a cake financially process it through and account for it and when co system whether it be from the floor or take a sales ca back you can't take a sales cake there's a process where you can go through and it's not a common practice can't take us they ok can't take a stale cake and it's a slippery slope and the pickle declaration which is the undisputed expert testimony is what the grocery industry if you i'm sorry i don't think there's i understood i think his point simply was at the time she called in loss prevention she had no idea didn't know who did know who write it and actually if you look at the unemployment hearing testimony and i'm sorry wish i could give you the exact page number but within that testimony she talks about reviewing the videos and she included both the nick mcinally video and the katie mays video with the stale scar tissue so clearly mays was a target from the get go in this investigation when it was passed on to loss prevention and the other critical factor and that is the fact that as scott samuelson testified miss steen told him that the use of cakes in the store had never been allowed period which is counsel acknowledged is not true management certainly i mean when we've been knowledge is management can use the case so so the fact that misty was making these false statements to loss prevention about what the allowable practices in the store are is pretty indicative i think of her what's your answer to t his alternative theory that she lied she i mean she did make a direct statement that mark right told me it was ok and when the interview right right flat out denies that he  think first of all we're dealing with questions of fact for the jury this question of who allegedly credibility determination that the jury's going to have to resolve i do i think that's a credibility determination and i think when you look at it in the context of all of the other testimony including in but in terms of there being an honest belief that there was dishonesty or theft that's all they need to show right and i think the problem is you look at all the people involved in the investigation and especially seen as a decision maker she certainly i think at a minimum there's a question of fact as to whether there was an honest belief that pays engage in any kind of misconduct at all i think the other thing of course there's a question of fact because her direct supervisor says he never told her that right exactly exactly right and i would also very quickly like to address the food lane case which winco relies upon to assert that an employer should be able to basically define gross misconduct however it wants but i would no that although counsel was referring to a portion of the food lion case where there's a discussion about what just gross misconduct mean the employer tried to figure out what it meant that's in the findings of fact a section of that case in the conclusions of law section they actually go through and analyze a legal definition and partly for the employee who is not a manager adopts the analysis of the corbell case which relies upon state law as far as what the definition of misconduct would you disagree that the category of theft falls within gross misconduct i mean i think i think probably under most circumstances it would fall within gross misconduct however you have to actually look at the circumstances surrounding it i don't think you just get to label something is theft and walk away unplug your ears i think you have to actually look at what the practices were with the employer and what the employee was informed of and the whole point of cobra is to help an employee transition it's incredibly because our profit margins are so slim but then we look at all the things that employees took off those shelves of the store whether it's windex or a roll of cleaning paper or a stale cake clearly there are exceptions that the employee does the employer doesn't see is that correct that's correct that's the judgment joins questions different she's saying context aside if they're if they're just in a hypothetical if there were a circumstance where employer decided somebody intentionally stole something even something a very minor value is it your position that that would not be gross misconduct i don't think so and again you have to look at the context but but i guess if we're talking about a good good faith belief standard and i would note that in corbell the northern district of california that court specifically rejected the good faith standard because cobra has such a high high level the intent required to commit gross misconduct it's this outrageous behavior well  o but i like let's say she took twenty five cents she was a cashier took twenty five cents which she did steal money at a cash register and you might think that's kind of de minimus but and you have the cake may be minimus over here but if you stole twenty five cents out of the cash register would you be making the same argument that's a good question i think i hate to say but i think it comes down to contacts and what they've done with other people in that situation and with other people in that situation if they've decided that that stuff and that's unacceptable conduct so again it's i guess established pattern a practice that thank you a facility thank you thank you both for your argument and your briefing mase versus when co is submitted