review of these motions for summary judgment in consideration of all the evidence that has been placed on the record we believe that the evidence clearly shows where there was discrimination where there was  a basis for wrongful termination of miss marquez and basically that in hindsight taking a look at her whole time that she was at harborview which is forty three years she was an employee of harborview medical center  she dedicated herself to her job and not around to around two thousand and seven she became a patient service specialist too and then in two thousand and eleven that's when she went ahead and made a complaint regarding possible  misappropriation of time in relation to some of her fellow employees when she brought this to her supervisor mr newcome she basically denied that any such activity actually occurred there after this is when miss market started says no to some sort of treatment being treated differently the record indicates that she was told that she should retire a number of times so you bring in age discrimination yes that's correct you're obviously not yes yes your honor and basically there's there's enough evidence from the record especially in this from an asian case for the courts to make a reasonable inference and i really focus on the word inference here because evidence that we have really shows lot of evidence in the record that she was being counseled and told not to confront other employees and things happen so then we're really moving back to whether it's protection all right and the burden of persuasion there you know in terms of  in all right so you have the twenty of lebanon and stents where she thought that that that someone was being was improperly claiming overtime and miss new can said she couldn't substantiate that but then your client pursued an audit and i believe that the audit found some support for that right this correct or ok and then there's also a twenty eight thirteen complaint against mr newcome which was investigated by mr paine correct that's correct you're right that occurred in if i'm getting the timeline correct lady that occurred after they had already started calling her and about don't confront people that's correct and then and it occurred i think it was it they started calling her in maybe in march then that was in june and then it was decided in december and then she was terminated the following year your t ok so i'm wondering if that right the first one clearly i guess what i can tell from the record your client was at least an average employee  for above employee but there are some issues here because one of the witnesses in this particular case of provided testimony constance smith said that some of her evaluations were not even prepared by her she signed off on it with the evaluations itself were not signed by her so to me that creates a very genuine issue of material fact is who signed off on these evaluations because if we're using that is that go i'm assuming at this stage of the game that she's that we expect and assume that she was a valued employee for forty three years if anything the strikes me as a very patient response but i don't understand the real answer to what callahan's talking about which is and that is in question are we in pretax land you have to show pretext ye she's expected to do in not to be involved with these other employees during the course of this investigation and it may lead to her terminations why does it matter whether that's a official policy or not is it your raises an issue whether that is actually accurate because a number of these employees that she's worked with she's worked with for a number of years she's gone over to their house it's reasonable for an employee to go to another employee's house and make discussions especially if she didn't know  agree with you after forty three years of what appears to be unquestioned decent employment you know whatever if they came the first time she confronted i think it was fall deaths or whatever but who is a friend to a friend and a there some kind of a friend enemy or whatever i don't know what we want to call it but anyway the first time if they had fired her the first time she did that i don't think anyone would just crave it if that would seem to be unfair but they called her in and said don't do that and then she keeps and they didn't and then how many times did the caller in and say don't do that before they she finally got fired well you know they told her not to do that if this was it could you  doesn't but the thing is if your employer says hey don't contact people about how what we're doing here and then you continue to do it i think i think what we're trying to say is and we haven't talked about this but but what i'm hearing is they gave some reasons here so now you've got a pretext you know they shifted it and i think you're going to have a hard time saying that that didn't give some races because your client even admitted to doing some of the especially if this is a policy that's not i mean this is a a letter that's basically drafted by someone who disagreed with her in the past and she's reported for you know misconduct or not you know actually managing the way she should have managed that creates a reasonable inference here that there's something there's something beyond that what's what's going what's then what now are you talking is that for pretext or is that has the burden shifted did they give a legitimate business reason and then time are you talking up for pretexts or were you talking about it or in order for them to give a legitimate business reason we have to take a look at the language of the letter that and you know basically we have to pass also ask ourselves where does she get the authority or rights to be able to make this type of statement that she's not allowed to communicate regarding an investigation it's almost equivalent to not being able to defend yourself or investigate it's pretty common that when they do internal investigation that people are told don't go out and don't go out and harass people you know because then then people start saying well i don't want to talk to you because someone so shut up i mean i mean one of the gals valdez or whatever said called and said she's outside my house what do i do right yes but i mean that's a little that raises an issue of material fact too because there have been friends for such a long time there were several employees who complained and from the management's perspective they had other employees complaining even saying that they were frightened what's a management supposed to do well to stay away and so i should judge callahan's concern i want to give you an opportunity to make sure that my notes are right if i that is not challenged the question is especially employment discrimination cases if we have really just an arrest of parties providing testimony i mean half of the respondent here these people you know they're coming into i mean there's investigation taking place i suspect that these people have their interests of their jobs you know past argument in my view would be that she was a good employee for forty three years then she called to the attention of her supervisor something being a mess the supervisor didn't agree with her she went further and the super then the audit proved her right and so she passed it off her supervisor basically because then the supervisor was then charged pain over time or something like that so her problems your best argument is that that's where the problem started and then that's why it's a protection that everything else that favorable to the nonmoving party employment discrimination cases this is even more it's very difficult in any discrimination case actually show that there is intent to discriminate and that's why that standard is a little bit more lenient and in these types of cases and i believe that if you take a look at the totality of the circumstances here there's just too much evidence that i think a reasonable jury could take a look at this and say well something's amiss here something is not just right and if it can i and i you know what's your strongest we believe is not a basis for them to be able to terminate her and it was vague and in addition to that she should be able to have the right during an investigation to still be able to communicate with her fellow employees or talk with them or have communications with them and if you're telling someone that they can't speak about it can't talk about it you know she doesn't have it what's your best case that what that when there have an ongoing investigation and they cite a policy and say don't talk to the people involved until we're done with it what's your best case that says that that's just flat out violation well because again that policy it was something that person that she reported and then thereafter reported again and there after she was terminated that your client's trying to get to the bottom of his chin or off about contacting you know are you the one that called or you know that's that she's trying to she's trying to get to the bottom and they're just and knock it off just like the investigation run its course issue or she really just trying to have a communications with you know someone has made a statement i mean there was an investigation that she had time cards in her car and she's found out that she never actually did it and so it's reasonable for her to start seeing something like are they targeting me something going on here or is this just the slower a newcomer lady who's just going to keep on going after me time and time again and we put forth that that's specifically what it is because we take a look at the two thousand women complain three thousand and thirteen complaint and then terminations there's just there's just too much there that we did we believe that i understand  you know the pretext argument we we think it's has to do with that that's that letter that would she received in relation to who she was able to communicate with and i think that she has a right to be able to look into allegations that have been made good morning me please the court howard good friend for the early harborview medical center of the district court properly granted summary judgment here because the reasons for ms marc has dismissal or objective they were over when we get to pretext it's a burden of persuasion and we basically have to conclude that no reasonable juror would find that that's what the decision she does have going for forty three years  problem space sickly i mean it's you know i mean she's not a problem you know forty three years she makes a complaint about saying i think someone was never paid and it appears that and newcombe either shined iran couldn't substantiate it or whatever she goes further the audit shows that newcomb was wrong and it you can infer from that recently a person could infer from that that you're not very happy about i mean she didn't stop with what complained about nick and they found that that they couldn't didn't substantiate that and so her life suddenly goes all downhill if the timeframe is such that the time frame works for her so  let me address that and the fact that she was not a problem before i don't think the time frame works for your honor and the reason is this the incident in two thousand and eleven is i think as you portray that she was in fact found to be correct the employee at issue was misusing over time and was forced to repay that over time so ms marquez was in fact correct in two thousand and eleven  verifies or doesn't really like that well there's no there's really no evidence of anything that occurred adverse to ms marquez from two thousand and eleven until two thousand and thirteen two thousand and thirteen ms newcomb learns that there's an allegation that ms marquez has protected employee information in her car she brings ms marquez into interviewer and what does she say she says i believe you in fact there's and i found no evidence to support this and she gives her a policy statement that says and this is a university policy it's in the e r as it said s e r forty eight that's policy forty six point three that says don't retaliate against people and in consultation with h r while this they're investigating this she's told don't contact people don't harass them standard language given and correct yes the the letter that's given to her is in advance of that meeting saying in during this week before don't harass people but what does she learn what does ms newcomb learn there after in fact she has harassed people and this is not something that's made up as it's admitted it's not contested and there are emails from the employees feeling uncomfortable about this questioning e mails newcomb on march twenty second the complaints there's another meeting with her with marquez on march twenty ninth she's again counseled but she admits these actions occurred and to me that meeting about her to management and then on may fourteenth there's the final counseling session with baltar newcomb marquez she's given a lengthy list of how she violated the prior counseling and again with an action plan telling  don't confront other employees so really if you're talking about the march of the two thousand and eleven and after that that's when she complains about it come in june yes they're after she's given the notice  final counseling is her complaint so that complaint in june two thousand and thirteen cannot be a cause of the final counseling absolutely why not because the final counseling occurred a month earlier in may spy so these things all curd and they're documented she's then put on paid administrative leave in february twenty fifth two thousand and fourteen and that evening marcus shows up at valdas house and is waiting there were involved as comes home again there's an e mail reporting this she admits that this happens and valdes reports that she's getting daily phone calls from ms marquez and that she's scared of her and at that point there's another meeting at which valdes i'm sorry which ms marquez tells newcomb quote if i go down they all go down to the march seventeenth meeting yes that's correct ok at that point on march twentieth there's a recommendation of dismissal so were the age things happen before that comments about who's going to retire or it be better if she retired or where did those factor in well what the district court found and i believe it's true if you look at the deposition of constance smith there's another employee who basically said i heard things i  assessing staffing and just trying to determine what the units needs were that's ten years ago isn't there some comment somewhere though it might be disputed but for pity's purposes that it would be better if she retired and when was that and we don't know happened and we don't know who made them we don't know when they occurred there based upon the deposition testimony of constance smith which isn't about your one fifty six or so and she ad out as a district court said in his order that when questioned she said she couldn't relate comments negative comments about his mark as to our age this may not be directly relevant to the legal question front of us but i do have to ask is there a difference in terms of retirement benefits for ms moore because depending on whether she voluntarily retired or whether she was terminated i am not sure because it's not in the record  my understanding is that her her benefits were vested as a person one employee based upon her years of service and that they could not be forfeited as a result of the status of the reason why she left employment  that that she should retire not not just back in two thousand and five isn't that right that's the allegation i think i'll have to look to look at that site but that's that's possible that's possible i was referring to the deposition testimony of ms smith who was unable to put any dates on on any of the statements or for that matter identify with specificity anyone who said anything about her age i think mark has made the allegation that's my only point that that's that's that's quite possible but the point is as i think the district court rightfully determined that action either protected action or an age related statement occurring in two thousand and eleven really has a very such slim causal connection to adverse employment action occurring two and a half or three years later that is based upon specific documented and admitted  facts of wrongdoing that no reasonable rational fact finder could find that it was a substantial factor in her terminations the fact of the matter is there are many many older you know people over the age of before this happened but you're relying on attenuation we are and you know i know that the lapse of time is not sufficient and that's particularly perhaps more true in retaliation cases because we know people can lie in wait and pounce that's possible but in age discrimination cases i think you know to to show animists continuing for two and a half years you need something more right about the initial but nothing happens to her for two years so my question is when was it established that she was right we we don't have the date that that occurred but we know yes it was sometime in two thousand and eleven yes i think i think there are allegations that she made in two thousand and seven and then again in two thousand and eleven and i think that one the two thousand and eleven was resolved that year so really you know in the absence of any adverse action taken to an employee over a two year period it's very very very difficult to make any sort of causal link between the one and the other and they're going to it's almost  repeated violations of what you've been told to do then the question is pretext well there are two reasons why it could be pretext one of them as suggested by judge callahan seems to me at least plausible the newcomb has it out for be because she's been shown shown up and as you said it does not have to be closely proximate in time you could lay in wait i to be a complicated question i'm struggling with it and it's pretext well if it is pretextual does that make it go away for purposes of age discrimination well that is to say this is not the real reason it happened i think that's gone as a reason and now what we have is that reason doesn't apply they've got no reason to fire her and we haven't the record all this talk about retirement well to start with the first aspect of your question if i if i made up in a little my time i think oh well the if it were retaliatory and this is i think why i judge martina's found no reasonable fact finder could could find discrimination in this case were it work reasonable to assume that she was leaving him in wait for a reason she would have done all a lot more with this protected information in the car allegation then dismiss it and say i believe you and it's undisputed that she did she said i believe you there's nothing here go on but just don't harass people and the only reason the only reason she was called back in was because other people came and complained to her what's an employer to do in that situation so as to that point your honor i think in this situation there is no causal connection for retaliation as for age discrimination i would agree one hundred percent that a stray remark and and you know there are other cases you're with me when i was saying is if you take away this reason and call it happens for over two years after that no reasonable fact finder could find that this was pretext on the on the set of facts ok thank you very much could you put three minutes on the clock please your honour's on the issue that we have to take a look at here is whether to retaliation was or harassment was that the basis for which miss marcuse was dismissed specifically we know right here we have that really doesn't matter because it's a question that if your employer can tell you don't do this and you continue to do that it doesn't really her state of mind to me doesn't really matter perhaps but the issue here is you know she's able to have a conversation so why are they still why are they still to conscious contact in the employer insane i've got you know i mean obviously down the line and you know and that's probably probably more evidence of the exact reasons that you don't want people contacting people and pushing them around so that they change their stories all the time is but they're it's undisputed that during the period of time before they took action against her that they they kept contacting the employer saying and you know she's calling me she's calling me she's calling me you know well that's the that was a concerning issue when i asked miss newcome about these e mails that she was receiving complaints of and then when we did the deposition testimony of you know mr valdez she said that this is not true these are not accurate statements what about guns so that march fifteenth the first time she was counseled the very next day she contacted maria gonzaga who denied it and then denied being an informant and then your client apparently responded it's to res this then and then went to her the next day swear on your mother's grave and what you've just reminded me that that's right her her deposition testimony is then that she wasn't concerned but what about the well i mean the problem that i have at least with if you have one domino then the rest of the dominoes fall down is i can't that is a credibility issue that i believe that should be presented to a jury and think it is if the employer gets a complaint from gonzaga saying this things that i would say is that policy itself there is a written there is a washington state policy that's that's my whole point here is that there's you not to read retaliate harass or get involved in this type of activity but the concern here is she's kind of terminated fairly in relation to this letter that the and laura newcombe presented to her not really that policy and that policy they haven't really established was a retaliation or harassment in relation to this even if you consider those