we want to welcome everyone to the we're circuit court of appeals this morning good to have you here we have four interesting cases we look forward to discussing them with coun august five two thousand and sixteen i'll come back to that in a moment receive his notice a right to sue they did august nd two thousand and sixteen and was fired about eight weeks later on october t h two thousand and sixteen after nearly forty years of service there at the hospital i should say center health i was in operates a hospital once for a genuine mr faulkner worked in the lab there for nearly nearly forty years those are the background facts we raise two issues on appeal the st concerns the district courts award of summary judgment the nd is related and concerns the district court's failure to permit faulconer to file  employment action and that there was a causal connection between the st and the rd element the district courts air or here is that it awarded summary judgment and ruled that a title seven retaliation claim cannot have an aids discrimination charge as its predicate activity there are three problems with that rolling st the district court overlooked the fact that the nd charge of discrimination but one file after mr faulkner was that's obviously participation activity and it's protected activity as this court held into masters versus karelian which case i'll never forget because it remains the st and only time i've had an opportunity to argue guess i'm really not following this point is your st point that the district court is wrong that being fired in retaliation for an age discrimination complaint to the see that that is protected activity for purposes of a title seven ret turned director to that the rule fifteen question rule fifteen obviously provides at least to a man shall be freely given when justice requires this can be done before trial in the middle of trial after trial to to hear that was intended to conform the complaint to the avonex developer in discovery should have been granted this court addressed that question squarely later in that opinion and set and scuse me and sweetheart plastic versus detroit farming where this argument our position is where the district court held that i'm rich ject ings the motion for alito a man simply because it came to light simply because it was not consistent with my scheduling order this court held because there was no good c that and i guess i'm sort of struggling to figure out what is the value of a scheduling order if it can be ignored without a cause what this court sentence read hard plastic says there's not a case where there is a scheduling  on title seven her talent tory discharge and he had gone to the employer made a written complaint about mark meth his newly appointed supervisor saying they tried to hustle women in the lab rubbed his hand and jennifer hugged the female employees talked about his interest in persona and when you say that the district would overlook that is any of that in the complaint with reference title seven specifically but the facts you just listed that you say the district court overlooked they're not in the compl greatest thing since sliced bread his two thousand and fifteen review which references two thousand and fourteen was glowing and that's an undisputed point philip treats his coworkers with respect and never lets personal issues interfere with his work et r director sherry bennett said i don't really remember getting any complaints about him centric claims that it fired faulkner as a result of a verbal altercation but what happened on that day was rife with factual disputes faulkner denied that he was rude to anyone vice president but can it was called in by h r for a cover story we would submit but whatever happened was so and significant that he has no memory of what happened that day security was also called but we deposed the security guard he said responding to here that you have her directed the district court to sort of enough evidence to create a jury issue or causation but the district court also said this would in any event it's to lead like none of the facts are  at that point i believe what the distance what the district court was trying to say is this it would be in the nature of a constructive amendment like i would have to be allowing you to amend your complaint at this very late date after briefing get to summary judgment it really doesn't matter anymore what's in your complaint it matters no longer tethered to the facts that were alleged in the complaint not necessarily that's why this court are a bunch of cases saying that that constitutes a constructive amendment of the complaint and that the district  has the discretion to deny it that late in the day we didn't want to constructive amendment we wanted an actual let me address the point about my opponent may raise and they may say well we weren't aware of the e e o c charts that they may say that they've said that b low and i want to point you to the record where that's not the case in case you need to address that in arguments let  me make come up during argument this is the deposition of h r sherry bennett and i'm talking about the st charge of discrimination now she says and i'm on page seven hundred and sixty eight dollars i do remember that philip came to my office to present a document basically he was unhappy with his performance review that year he presented me with a document that he wanted to include in his record that was on august th august fifty two thousand and sixteen and at the top of it it had the e e o c charge number written across the top you know the way the write the charge numbers on the top of the complaint so i know at that point in time i knew about it but i may have found about it soner so my point is if they argue to you well we did know about the charge there's the evidence h r director said  preserve this basis this title seven discrimination that i raise harassment right i raise the issue of mr smith's alleged harassment where is that in the till i see charge it's not in the charge in the letter he provided he said see attached or say and certain or some such and that's his long letter of may want two thousand and sixteen where he talks about all the things i just know we have case law saying it's not in the charge then it's it's not it's not preserve we don't have authorities and then consider things there outside of the charge did he seek to clarify the charge to get the e s c to amend it with all due respect i think this court was reversed on that point and adelman versus and guess who the descend that was that went up to the supreme court and the supreme court said that you consider other documents submitted by the charging party and letter that it's not given to his employer so the charges are liberally construed and he submitted a letter may want two thousand and sixteen is the and again i am sort of caught up on this fact that the complaint itself describes the july charges alleging only age discrimination so i guess i don't know how we get past them and the only boxes checked by the  saying putting to one side what happened before the see the counsel complaint describes the july charges based only on age discrimination so can you tell me why that doesn't control what coun about the letter it simply describes the charge but you think that shouldn't control that's  pointed out in his july charge mr faulkner selected only agent retaliate in the basis of discrimination sections no title seven charges identified anywhere in that no title seven points identified anywhere in that to schemes are in separate sections of the united states code as the supreme court has recognized the drafters the a v e o and the congress that enacted it understood that age discrimination was qualitatively different from from the content discrimination addressed by title seven congress therefore chose not to include age within discrimination or been by title this court and other courts have regularly and routinely recognized that eighty eight dollars participatory conduct retaliation claim there is no oppositional claim in any complaint in this action not even the proposed nd amended complaint significantly plaintiff's never pursued any substantive allegations in the july charge he never asserted any claim substantive discrimination the only claim before this court is not opposition not complaining about smith not complaining about performance reviews it is i filed a charge in july i'm contending that i was terminated for filing that charge i'm he's asserted that in every complaint even the proposed nd in the complaint that the court did not lead to him and then i'll discuss that in a moment in brief plaintiff makes broad sweeping allegations about all manner of other conduct reporting  smith who was not in any way shape or form involved in the terminations decision at issue in this case but smith was his manager in the blood bank when he was removed for not getting blood banks blood patients timely he makes all kinds of before this court they involve different actors that are not in any way involved in terminations despite point of to expand this case on appeal the issues relevant to determination here are limited they're straight forward and they're discrete the district court the st question is whether the district court abused its discretion in denying leap to him and clearly the district court did not discuss that and the nd issue before this court is whether the district court correctly found that as a matter of law alone was the but for calls was terminations there is no evidence in the record as forth that he relies on temporal proximity alone and as this court has repeatedly reckoned timber proximity may not be enough to pass the prime aphasia causation component certainly not eight violation and held title seven does not forbid retaliation for making age discrimination complaints since plaintiffs title seven claim does not map on the conduct of seven prohibits summary judgment will be granted  does does not dispute this as you just heard an oral argument now with respect to abuse of discretion the district court did not abuse scrushy and as judge harris noted rule sixteen govern drill sixteen says the co can do certain things in the scheduling order and must do certain things in the schedule in order the one thing a court must do a court must limit the tom to amend pleadings and its scheduling order that's rule sixteen b three a a court must do that and that is for the efficient administration of justice so you don't end up summary judgment and the case changes to an entirely different theory with an entirely different set of facts rule sixteen before then provides the way you modify a schedule in order and it provides a schedule or maybe modify only for good calls and with the judge's consent here of course the the court had a scheduling order and the scheduling order consistent with rule sixteen except for good caution own an emotion complaint was outside the window of the scheduling order and he consulted with counsel for sentra we agreed in consented to that st amended complaint so we did that was not contested all it was it was a week after the scheduling d remedies that he failed to follow title seven charts all of those are preserved in our answers but we pointed out in our st summary judgment brief that eighty eight dollars participatory conduct cannot support a title seven claim in response plan file the motion to amend this was nearly nine months after the scheduling order deadline after one tali and then a one timely amendment and good cause having been found and after the close of discovery and after summary judgment significantly planted plaintiff admitted in his motion to amend that he never asserted or even intended to assert in a d e a participatory retaliation claim in either his original or st amended complaint in his motion for leave to the district complaints up to that point had been limited to title seven they were not meant to be construed or interpreted as extended extending in any way to the eight at no point in the motion to amend did mr faulkner seek to explain the is a clerical error this is black's law dictionary is a clerical error not not an error that is the result of judicial determination reasoning he made the plaintiff's counsel made a reasoned decision as you heard him just defend a moment ago to not apologize and our and our motion to amend we want to supplant title with a lawyer well not not under black's law dictionary they could be neglect that's neglectful clerical error but that's not what happened here he didn't seek to take out title seven in his amendment he seeks to keep title seven and add in the eighty eight claims and now he wants to retaliation claims not replace one so if it were a scrivener's error of the type where he says i meant title now in denying leave to amend the district correctly plot the good call standard on rule sixteen b and disregarded rule fifteen standards because they are not a political the court correctly noted that once the deadlines in the schedule order expired rule sixteen ceases to apply the rule fifteen standards cease to apply and the good call standard under rule sixteen before governs the district court held the touchstone of good calls under rule sixteen b is diligen and the standard is not satisfied if the party seeking relief or that party's attorney has not acted diligently in compliance with the schedule the court then concluded plenty of failed to act illegitimately and failed to carry his burden of showing good calls because he provided no explanation for why he didn't amend earlier why he was waiting until not once after the scheduling ordered a lot of why he was waiting until after the close of discovery he just simply said without any explanation whatsoever it's a scri and as the court is now where is not with there had been any unprejudiced to your client if the district court had granted that motion and your honor this gets your point st prejudice is not part of the analysis under the under the good call standard so we're  rule sixteen prejudice is not part of now since it would have been prejudicial because although he makes all of these arguments in summary judgment and he tried to elicit some of that depositions we did not try to chase those factual issues because they are not relevant to the matter of was his jalopy charge eighty eight dollars charge the but four calls was terminations now he's got all the shifting sands and shifting legal theories of the book for causes not really charge would have been protected activity the factual predicate it seems would have been the same was the july church or the factual predicate would have been similar in that instance if you did that but he was he was not court on its own issued its ruling saying that he failed to establish the cause of the court acted without argument from from central on that point which goes to show it's a clear determination and no abuse of discretion to find believe he may have sent something to us the same day he filed a motion we do not consent now i've already talked about title seven dollars eighty eight cents tory activities the question  aside the lack of any actual flame even just looking at the facts of ok there is a july charge and then there is a terminations could he ever surpass the pretext face recalls ation he absolutely cannot i won't have all these new certainly that weren't in the complaint and plaintiff hasn't directed the court any evidence that the individuals who fired him considered his accusations against smith in their  district but also said there's no evidence of causation and there you go in and that's supported by the record that is supported by the record because there is nothing tethering his jalopy charge to his terminations in any way this was a result of intimidating  and threatening conduct that he initiated on his own on october th this is not some accumulation of performance issues that they have discretion as to when to act and then and then make that determination this is the result of serious threatening conduct that occurred on a specific day that he chose to act and gauge and act on the and they made the determination on that basis one thing that must be clarified i realize i'm running out of tom but one thing that must be clarified is they repeatedly said below and they beside her in a threatening matter manner and venting his personal space which he knew was threatening conduct because he had seen his cows at home on the farm doing that that did not come and any way shape or form during the charge or after the two points in response st the motion for leave to amend was filed april th counsel was right they did not oppose that the order was entered by the court on april th six days later there is no rule fifteen a thousand and sixteen for your references in the record at j one thousand four hundred and seven and pages following and there specifically mr faulkner talks about i'm complaining about sex harassment marking smith doing inappropriate things to women who work there and and so forth and remember marking smith said i retaliated against you when i went when you reported me to h r so that's on the record and it was received by the e e o c on may nd which means it's right about the time that your office received remember the