good morning and may it please the court my name is thomas o'hagan known here as the of howland the plaintiff and the employee as i prepared this case i realize there are few points worth mentioning beyond what was in the first appeal courts i saw over and over in cases i read do not review findings of fact and overturn them because the courts wisely know seeing a witness and seeing the words on paper are two different things seen the words on paper one cannot judge credibility yet here the court below looked at words on paper don't ever go in my head and did not know that mr wallace in his first meeting with me looked me barely introduced himself and said don't you ever go over my head that gives a meaning to the words that is not there on paper for that reason alone there is a tribal issue of that because with that emphasis it becomes clear  from his words is that he was perfectly aware of my prior supervisor being fired because i turned him in for unethical conduct and he did not want the same they did to follow him  think it is your honor because it is the reason why he would tell you that it's the reason why he set off on a course and it's under spewed of treating my offices differently from any other office in the region and i might add hartford offers no reason whatsoever why that occurred they speculate include has been budgetary it could have been something else but they controlled the declarations of wallace and stewart that they put into the these people would have known why they treated my office as they did they were the ones who did it that nothing was said was to why and the reason given doesn't make sense it could be budgetary if money's already spent to buy ten computers the budget is gone it doesn't matter if they get them to this office or that office yet they're saying it's somehow a budgetary reason makes sense they give it to other offices but never to mine that makes no sense whatsoever it is clearly a pretext when they say oh something else was going on it might have been budgetary it might have something else but it clearly is legitimate business reasons know they engaged in things that were not mine things that aren't so your theory is that they completely imploded essentially every attorney quit within a very short time the office manager who had been there since i was in high school it was the only real job she ever had retired early rather than face more time there because as she put it and as other lawyers put it as well within the last year or two every day has been worse than any day had before this and that's what happened in my office that caused that is the retaliation and that is why my i have a that you wanted to take but couldn't take could not have been scheduled earlier first of all your honor they weren't scheduling me per se their schedule by the former attorney who is no longer a member of the bar who abandoned my case essentially by the time the depositions were taking place he had already abandon my case here he ceased working on it he did not submit a brief in response to the appeal he did extremely poor job opposing the summary judgment and i would submit i should have a honor i didn't really have that opportunity at the time we're talking about i was suffering from a severe depression i was under the care of a psychiatrist and i was seeing two different therapists every week at about that time in fact my psychiatrist said you need more than this he put me into an outpatient hospital program i was seeing group therapy more than one session per day every single day for a period of over two months i was in no shape to take care of that that's why ultimately took an active status on the bar i realize that my mental health puts me in a condition where i do not believe i should be representing other people anymore as lawyers do i was simply a person who went out hired the best lawyer i could find so i thought at one time he may have been a very good lawyer but it turns out at the end of his career he was a very bad lawyer he closed up his office he never gave me his file he never inform me of what happened he simply abandon the case and everything was fine just without the deposition and then one question is whether there was any thing that could have been done about the depositions that as you know it's difficult to say that a judge abused discretion when they were noticed to the  there is no doubt as a second that the second a second element of this that i was retaliated against that there was adverse action taken against me on the job in that i was denied resources in that i was effectively demoted by becoming the only manager force to handle a full caseload in the west indies in the country for hartford in that i was then forced out of my job through extreme pressure from what then the positive from what you just indicated counsel th leave i'm sorry to interrupt go ahead when i had an employee leave and i'd asked my supervisor may please replace this person i would not even hear back from them for sometimes a month or two at a time while the office fell apart for lack of attorneys when i left and some other trainees left within a matter of a week mr stewart my then supervisor had posted job openings all over the place he very quickly hired faster he gave me permission just to advertise the jobs he had attorneys in there and retaliation case in which you don't have any direct evidence of a connection one key question is the time between the retaliate and the  and then it was a fire you so eventually years later you would leave at the expense of having a terrible operation in northern california for years i mean the question is is that a sufficiently plausible story that it has to be in the inference arises from the fifth on the existing facts since the court must a gauge and all inferences favorable to me as the person responding to the oath for summary judgment there is a tribal issue good morning i am thomas mackey i represent the hartford thank you for giving us the opportunity to address the case in the trial court below a couple in a place in the trial court below judge john walter properly decided and properly ruled that plaintiff could not meet in essential element of his prime a face the case with respect to his claims for retaliation discrimination or harassment with respect to and  them by element with respect to the prime official case of retaliation is obviously the really the graviton of this case it really is the key claim that the plaintiff is making here there are three elements to a cause of action for retaliation the first is that the plaintiff must have engaged in some protected activity for the purposes of the motion hartford has not disputed that the second element of the claim is that some adverse employment action occurred with respect to this motion that's tenuous but the alleged adverse action is that there was a lack of resources apparently in what was the largest office in the they call  of whether this in fact occurred whether it was less than another offices are or whether what their reasons were this may have happened none of that is in the record is our right that's absolutely right because frankly in order to delve into that would be me put it this way the harper made the decision that that particular element of the second element of the retaliation claim it was not worthwhile to address the issue on summary judgment you're essentially saying that everything does hang on this question of whether they knew  no the question hangs on the third element of the retaliation claim which is whether there is a causal connection of any type between the protected activity on the one hand and the adverse action on the other and here and i mean there is a fact in the record that something was said to him at the outset of the new person coming in and that not going over a head right so easy you think that was just an idle comment triggered by nothing or you think it was triggered by something it requires speculation is the problem ok all the difference is also but it has to be a reasonable inference because also in the record at excerpts of record three thirty is a follow up email which mr wall sent to not just the apology but to all of the managers of all of the offices reiterating the very specific instruction which is come to me and then follow that up by saying of course if you have a complaint about me you should go to human resources so the totality of the facts that are in the record render the interpretation that that statement somehow means that mr wallace was aware of a complaint that appellant made speculative but there's another key reason that the cargo connection of the third claimed with respect to the retaliation claim cannot be met and that is that there is no way to draw a conclusion that somehow a lack of resources in the northern california office which is the largest office in the region was because of or was designed as an intended only as was the a very foolish an odd way for a company  back at somebody that's i suppose not impossible well but it but not impossible is not the standard it must be a reasonable inference must be a pretty used the word plausible your honor a moment ago inferences based upon facts it is not correct to say that inference is must be drawn in favor of the nonmoving punny they must be plausible they must be reasonable and here you would have to come to the conclusion now just to set the stage mr wallace was originally the direct supervisor of the western region for the appellant he was promoted so that he's now the national manager and mr stewart is the regional manager so now we have mr stewart who is directly responsible for the northern california office and we have mr wallis who's responsible for the entire nation and we're dealing with one of the largest offices for the company and by the way let's not minimize the fact that we're dealing with lawyers and we're dealing with lawyers who are representing insurance on legal claims so you don't have to just draw the conclusion that somehow these two managers are willing to sacrifice their careers by causing this large office to fail you also have to draw the conclusion that in so doing they are willingly putting their insurance at risk for potential adverse legal result i see some peculiar that that hartford hasn't countered any of the the accusations because right now you have a bunch of one refuted accusations that you even retaliate tory or otherwise drag this this office into the ground but if you actually look at the record and what those accusations are and you can see it specifically in mr hagan's declaration submitted in support of the motion they are in attorney retired and wasn't replacing enough another attorney resigned and wasn't replaced soon enough also on the record by the way is that there was another attorney hired into that office but that hiring fell through at the last minute this was in the open portion and therefore that attorney wasn't hired and then a paralegal resigned these are not the types of business decisions or business actions that even speculative lea can be interpreted as the sort of actions that would be intended in a retaliatory way to force the plaintiff out of his job that's why w we were first made that request in opposition to the motion in other words there was no meeting confer beforehand can we should we shall we if there had been i may have actually considered it because of the fact that mr stewart was hospitalized and it was very serious i would like to point out though that with respect to the argument made by appellant with regarding the reasons for those late depositions those reasons that he has now stated and were first raised in his reply brief where that his attorney had abandoned the case nowhere below and nowhere in his opening brief did the appellant ever assert that the depositions were not to take them to him for that or some that's not the question question is just really you know whether it's really worth in litigating creating these kinds of complications yes the one of the things that i would that i would add with respect to those depositions is that there still has been no clearly articulated explanation articulated explanation of the evidence that might be raised that might result from the depositions that might actually have something to do with this motion there are two things that the appellant stated that he thought he would get out of it one was he could somehow potentially attack the credibility of mr wallace and mr stewart and cause them to fall on their knees and admit that they really did know about the complaint and the second is that he would a do some facts regarding the amount of staffing in the offices but again when you go to the elements of these causes of action whether it's the third element of the retaliation claim or the fourth element of the discrimination claim which is that that there must be some addition of discriminatory modes neither of those two points would move the ball ok thank i mean you're asking to infer causation and even the case law that says you know three months is plausible and six months isn't just about possible right there is a point work where evidence becomes pure speculation and i would agree your honor that at that point the court can see this tribal issue affect i just don't think this is that cakes here i think we do have plausible inferences that mr stewart and mr wallace retaliated against me