of sexual and age discrimination because there are tribal issues on both cars ation and pretext the summary judgment granted in favor of u b s in this case activity and adverse employment action are both undisputed obviously in this case we do not have direct evidence of causation nobody at u b s is going to say that they terminated miss samuels based on her confusion your client was fired as i understand it in the afternoon is that correct that is correct order and did your kind testify that she gave a low voiced information that morning that she that we have marching are that the morning prior to her discharge she advised a low voice of both her prior complaint and her belief that the present investigation was itself in retaliation for her prior complain voice they're feeling the same position they should have the same responsibilities and the result the thing the voice can now basically claim no knowledge of prior personnel record so you're saying that he had no one of the management to whom sam is made a complaint that is correct and he did participate in the subsequent investigation so even if lavoy didn't have knowledge quinto certainly did because they knew if they fired her then that they were going have a lawsuit on her hands instead they waited and they waited for an opportunity to fire under the pretext of a disciplinary action and that's what i would argue trigger  we have evidence that she was given the race requested and then three months after making her complaint she was terminated and based again your honor we are somewhat hampered by the fact we don't have any direct evidence of somebody at u b s saying we fired her because of that complaint but we do have the temporal proximity of three mines that's what you get and addition to that we have an exemplary employment history of eleven years with no prior disciplinary action and we have heard termination that was the stated reason for the samuels termination are correct and i think to the second prong of my argument which is the critical way the call was made that the the records from the company show the call was made the question is what was ms samuel's participation in that call and also was she disciplined more severely than the other participants in that call in retaliation for her prior complaints of discrimination what prior manager of the of the corporation and the problem with saying that the void can now claim no knowledge imputed or actual is it turns out to be a bit of a corporate shell game they have an employee they want to get rid of ok i have nothing else know i'm sorry to say i'm from london england but i've lived here since one nine hundred seventy three so the english think i speak like an american the americans think i speak like an english so i'm sort of stuck somewhere in the middle of the atlantic ocean on my accent i get a hard time from my takes the word of two people who clearly said they were involved and they bring her in also and she's the only one the most valuable employee the highest paid employee she gets fired the others don't isn't that a pretty strong inference then it goes back to wanted to get rid of her because she was a troublemaker and one arm our money and made a complaint about discrimination let's see if i can take all those int one question but go ahead i might object that it's compound but i wouldn't add to that so she did complain in december that she was underpaid the reason she made that complaint was because somebody who was working for her who was male and under forty was being paid more than and rightfully so she resented the fact that somebody who was working for her was earning more than so the company looked at her complaint and looked at it from two sam point one was she being paid enough and was it because she was female and over forty that she was being paid less they looked at all the other people who were being paid to a comparable to her they found that it made no difference whether you were a woman and no difference how old you were most of the people who were paid complaint but they also concluded that indeed she was being underpaid she was within the range for her position but she was at the bottom of that range they were going to raise her pay to gifty five thousand in april and then to sixty thousand as soon as they could get permission so they were going to raise it anyway they recognized that she was underpaid but they used that complaint she was very upset that he agreed that she was underpaid and so they agreed to raise her pay at that time but it wasn't because they concluded that she was discriminated against based on her sex or her age turning to the later part why did they believe her or not believe her and to leave the other employees and remember the rant to the right three other did the investigation believe that those employees were credible witnesses they initially denied being that she but they were that she was present or that they've even made the call company got the phone records found out that the calls were made two of the women came forward implicate her when she was not there the company concluded that she had been present three witnesses said that she was present or witness said that she had tried to get them to lie that she told everybody let's not tell anybody about this if we tell anyone up should not tell that they were there when the call because they get fired so yes she was treated more harshly than the other two employees the other employees got written warnings told that if anything bad happened again they were going to be fired and she was like oh but there were reasons why she was treated more harshly she was the second most senior person at the branch she was a very senior employee there she was the one that the company concluded that she was the one who told her coworkers to lie and that was of the other two employees and she was the one that never came true never came through with the truth in fact mr low voice said that he would have if she had finally come through with the truth he would have thought more seriously about whether she should be terminated on mark but the fact that she consistently lied never came through with the truth tried to get her other employees to lie and that she was a senior person all made him believe that he should he would have to let her go and i don't think that anybody can really dispute that that was the right discipline at least i certainly don't someone like that you can't have employees at your branch you lie about their participation in the first of all she should never have been participating in the call particularly given she was a senior manager there but even beyond that because this can't have people who lie and who try to encourage their subordinates to lie i think that the key thing in this case is that a complaint of discrimination does not excuse employee from discipline for that employee's misconduct the employee cannot commit misconduct and then seek to avoid the consequences of that misconduct simply because the employer previously made a complaint if an employee is accused of misconduct that manager must have the right to investigate that misconduct and if the manager concludes the misconduct occurred then the manager has the right to discipline including terminate the employee even though the employee had previously complained of discrimination even if the manager knew about that complaint even if the employee was been a great employee for eleven years even with all those things were true the employer is that clear of the states that simply because she had complained three months earlier discrimination got the pay raise did not create a sufficient inference because that inference from that prior complaint that was broken by her own misconduct suppose for example the employee complains to her boss of discrimination on one day says i think discriminated against based on my sex the next day the employee comes into work and punches a coworker or embezzles money or is selling drugs that work whatever the misconduct is the company clearly has the right to discipline in fact terminate that employee for them its conduct even  the employee employer knew about the complaint it was the same actor involved and even if the employee had been working there for years and years so the only evidence that the plaintiff is presenting the appellant as presenting as inference as eviden is the same actor temporal proselytes and the fact that she was a long term employee but even though in some cases those can only create an inference by themselves all together in this case they don't because the employee by her own misconduct broke that chain if anything temple proximity favors my client she committed the misconduct on a thursday and by monday they've completed the investigation and  to let her go and so it's more likely that the temporal proximity is that she was let go for the misconduct and that is what all the evidence in this case was there was no no evidence at all that she was let go  michael douglas will pick up and what would we do with michael douglas picked up and we'd swoon and all of that type of stuff the evidence that the company had was that she was the one that made that call later this woman miss shott was looking at a deposition in the case she b s and told her look these people have called the emergency number for catherine zeta jones which is supposed to be michael douglas's number and i don't think that's right and i think we can all agree that you know it really jeopardized the u b s s relationship could jeopardize u b s s relationship with important celebrity clients if they're only employees are calling the emergency contact number for the clients it turned out it wasn't michael douglas's number but that wasn't the point they violated the rules that they knew about you pronounce it who was the broker who had brought in the catherine zeta jones account and said by the way i heard the three women at the office calling what who they thought was michael douglas because they got his phone number off the emergency contact information down schweller got upset that people were trying to call his client and told the branch manager and that's what led to the investigation that led to the terminations but remember she wasn't terminated just because she was employee and she's the one that told them to lie during the investigation and that was the really egregious conduct that she did usage and correct and but obviously as i say the company doesn't have to be right and the cases are absolutely clear that the decision doesn't have to be right but does it create an inference of discrimination or retaliation i remember there was a case where a guy was accused of using drugs at work and he came in and he denied the use drugs at work and the company concluded that he that he engaged in the misconduct because again companies have to be free to conduct their own investigations to reach a conclusion right or wrong as long as they reach a conclusion that is doesn't create an inference of retaliation and here i think the evidence is clear that it reached its conclusion based on the evidence that was presented to it that she had engaged in this misconduct whether she did or not and there was no inference court case for the proposition in this reply group what is your response to that since obviously you didn't get a chance to respond as a reply right i think that we have a kohen case which is i think it's the common case that's pretty clear that you don't knowledge from one person to another person and it has to be the actual decision maker that is the one that has the knowledge but i agree with judge bright that that is not the be all and end all of this case and that's not go case is not going to turn on this imputed knowledge i think it's much more important to look at whether the way any inference is that could be drawn that she was fired because she had complained and i just think the evidence is so clear as the district court found that there are no inferences to be drawn on whether it was the same actor or not whether he knew of the complaint or not whether she was a good employee or not the still isn't enough evidence to create an inference that she was fired because she had complained disproportionate discipline imposed on the other employees let's just portion of the hiring a supervisor employee for misconduct the conduct was the same your honor they both parties fire her because she lied with their employees lied as well you are they fessed up so the speak what they did is they implicated my client ms samuels but in a record itself going to get punishment as judges all the time for people who finally come forward with the truth she did not we don't know if she did or not your honor we don't know what the truth is that's for the jury to determine she's saying she did we also have a witness that was not even interviewed saying that it was a queer a who instigated the phone call we also have a query saying that castleberry heard the others pose a doubt independent witness was her quote best bud and would back up anything and where he had to say that's in the excerpts of record at pages three three five six nine eight six nine nine so there's a question whether or not this was not a these subordinate employees getting together and saying we're in trouble here let's pin it on samuel samuels maintains that you did not interview all the witnesses that they were just really looking for the evidence that they wanted to get rid of samples that they didn't gain or even interview this other employees through who backed up at least a portion of samuel