WEBVTT 1 00:00:00.280 --> 00:00:03.370 SJC-12991. 2 00:00:03.370 --> 00:00:06.913 Kaylee Osborne Trussell V Children's Hospital Corporation. 3 00:00:13.010 --> 00:00:15.347 Okay, who do we have first? 4 00:00:15.347 --> 00:00:18.330 That's me, Chief Justice, Budd. 5 00:00:18.330 --> 00:00:19.395 Good morning. 6 00:00:19.395 --> 00:00:20.730 I'm Michael Mason. 7 00:00:20.730 --> 00:00:24.750 I represent the plaintiff, Kaylee Osborne Trussell 8 00:00:24.750 --> 00:00:25.583 in this case. 9 00:00:25.583 --> 00:00:29.385 And we're here seeking, asking the court to vacate 10 00:00:29.385 --> 00:00:32.487 the superior court's dismissal of the case. 11 00:00:32.487 --> 00:00:36.873 Here we sided, excuse me, here we made two claims 12 00:00:36.873 --> 00:00:40.803 under Chapter 149, Section 52E. 13 00:00:41.875 --> 00:00:44.960 And allowing the dismissal of this case to stand 14 00:00:44.960 --> 00:00:47.350 would really sanction conduct 15 00:00:47.350 --> 00:00:50.210 that that statute was intended to prevent. 16 00:00:50.210 --> 00:00:53.680 It would also run afoul, the clear public policy 17 00:00:53.680 --> 00:00:57.410 here in the Commonwealth that protects victims of abuse 18 00:00:57.410 --> 00:01:02.210 who take steps to engage 19 00:01:02.210 --> 00:01:05.970 with the legal process and enforce their rights. 20 00:01:05.970 --> 00:01:10.230 Attorney Mason, can you just say what your client did 21 00:01:10.230 --> 00:01:12.423 to show that she was trying 22 00:01:16.760 --> 00:01:20.340 to enforce rights under the statute? 23 00:01:20.340 --> 00:01:21.510 Yes, thank you, Justice Budd. 24 00:01:21.510 --> 00:01:24.760 So she, a number of things, first of all, 25 00:01:24.760 --> 00:01:27.020 she had discussions directly, 26 00:01:27.020 --> 00:01:29.960 with the hospital and explain the situation to them 27 00:01:30.840 --> 00:01:33.060 telling them that she had the prevention, 28 00:01:33.060 --> 00:01:36.200 abuse prevention order that she was enforcing it 29 00:01:36.200 --> 00:01:38.630 through the Haverhill Police Department 30 00:01:38.630 --> 00:01:42.441 so that she was directly engaging with the police on it 31 00:01:42.441 --> 00:01:45.350 and pursuing it as a criminal matter 32 00:01:45.350 --> 00:01:48.620 which actually did continue your honor after this case 33 00:01:48.620 --> 00:01:50.220 and went through a criminal proceeding. 34 00:01:50.220 --> 00:01:53.289 But did she ask for time off or anything like that? 35 00:01:53.289 --> 00:01:56.200 Well, she didn't simply because she didn't know 36 00:01:56.200 --> 00:01:58.160 when she was going to need the time off your honor. 37 00:01:58.160 --> 00:02:01.660 That's one of the decisions in this case is that- 38 00:02:01.660 --> 00:02:04.237 Did she raise the fact that she might need time off? 39 00:02:04.237 --> 00:02:07.949 Well, she certainly gave them adequate notice 40 00:02:07.949 --> 00:02:09.912 under the statute, your honor, 41 00:02:09.912 --> 00:02:13.210 the statute includes providing a copy 42 00:02:13.210 --> 00:02:17.024 of a harassment prevention order as giving notice 43 00:02:17.024 --> 00:02:20.190 which she did and actually the hospital attached that 44 00:02:20.190 --> 00:02:21.410 to their papers. 45 00:02:21.410 --> 00:02:22.407 So she let them know. 46 00:02:22.407 --> 00:02:24.242 But she gave notice that she had 47 00:02:24.242 --> 00:02:26.853 an abuse prevention order. 48 00:02:27.890 --> 00:02:30.010 Is that the notice you're talking about? 49 00:02:30.010 --> 00:02:31.910 Yes, your honor, and that she was enforcing it. 50 00:02:31.910 --> 00:02:35.270 So the hospital knew, and this is important really 51 00:02:35.270 --> 00:02:39.240 to both of our claims under the statute, they had noticed 52 00:02:39.240 --> 00:02:43.155 that she was enforcing her rights and the hospital also knew 53 00:02:43.155 --> 00:02:46.000 that she was likely to need leave in the future. 54 00:02:46.000 --> 00:02:49.840 They didn't know when precisely, but they knew 55 00:02:49.840 --> 00:02:53.190 that she was gonna be engaged in the legal process 56 00:02:53.190 --> 00:02:55.870 which could include meeting with the police 57 00:02:55.870 --> 00:02:57.350 which could include going to court. 58 00:02:57.350 --> 00:03:00.490 And that's what was in the hospital's, 59 00:03:00.490 --> 00:03:03.280 you know, mind, when they terminated her, 60 00:03:03.280 --> 00:03:06.113 really, with no other reason to terminate her. 61 00:03:07.660 --> 00:03:10.993 And that's, you know, looking at the analogous FMLA cases, 62 00:03:11.955 --> 00:03:16.230 you know, they state that when an employer knows 63 00:03:16.230 --> 00:03:18.900 that an employee may need leave 64 00:03:18.900 --> 00:03:21.529 and they terminate them for that reason 65 00:03:21.529 --> 00:03:23.660 that's retaliation, 66 00:03:23.660 --> 00:03:27.603 which here would be paragraph I of Section 52E. 67 00:03:28.600 --> 00:03:29.781 So they certainly had 68 00:03:29.781 --> 00:03:32.403 there's certainly enough that we pled here, your honor, 69 00:03:32.403 --> 00:03:36.790 to justify continuing with our claim of retaliation. 70 00:03:36.790 --> 00:03:39.855 And in terms of the interference provision 71 00:03:39.855 --> 00:03:44.450 under section 52E that's paragraph H, you know, 72 00:03:44.450 --> 00:03:46.500 there's no doubt that they had noticed 73 00:03:46.500 --> 00:03:48.673 and that her termination prevented her 74 00:03:48.673 --> 00:03:50.290 from exercising her rights. 75 00:03:50.290 --> 00:03:53.440 She was attempting to exercise her rights 76 00:03:53.440 --> 00:03:55.503 and she was fired before she could do it. 77 00:03:55.503 --> 00:03:57.480 And, you know, the analogy I drew in my papers 78 00:03:57.480 --> 00:03:59.810 which I think is the most, it's probably the closest, 79 00:03:59.810 --> 00:04:03.500 when you look at the FMLA cases 80 00:04:03.500 --> 00:04:05.070 would be a pregnancy situation. 81 00:04:05.070 --> 00:04:07.660 You know, the, in the Parada case for example, 82 00:04:07.660 --> 00:04:09.370 you have an employee who's pregnant, 83 00:04:09.370 --> 00:04:11.470 she doesn't know when she's gonna need the leave. 84 00:04:11.470 --> 00:04:14.180 She knows she's gonna be out at some point 85 00:04:14.180 --> 00:04:16.390 hopefully doesn't know when that's gonna happen, 86 00:04:16.390 --> 00:04:18.090 that's the situation my client was in. 87 00:04:18.090 --> 00:04:20.310 She was cooperating with the police. 88 00:04:20.310 --> 00:04:24.550 That process was ongoing, but she hadn't yet been, you know 89 00:04:24.550 --> 00:04:25.890 summoned to a court date, 90 00:04:25.890 --> 00:04:27.979 that the police didn't need her to come in yet 91 00:04:27.979 --> 00:04:30.180 and give any testimony. 92 00:04:30.180 --> 00:04:33.444 So it was simply premature to expect her 93 00:04:33.444 --> 00:04:37.633 to give an exact date and exact duration of a leave. 94 00:04:38.500 --> 00:04:41.510 Can I start, justice, Chief Justice Budd are you done? 95 00:04:41.510 --> 00:04:42.343 Sorry. 96 00:04:42.343 --> 00:04:43.176 Yeah, go ahead. 97 00:04:43.176 --> 00:04:47.613 Can I start with the employment itself for a second? 98 00:04:47.613 --> 00:04:51.150 'Cause there's something still remains to be done 99 00:04:51.150 --> 00:04:53.810 before she's a full employee, right? 100 00:04:53.810 --> 00:04:57.770 Have you alleged and I'm just trying to confirm 101 00:04:57.770 --> 00:05:00.730 that she is an employee based on your allegations, 102 00:05:00.730 --> 00:05:02.840 because even your allegations 103 00:05:02.840 --> 00:05:07.530 represent that there's some followup still going on, right? 104 00:05:07.530 --> 00:05:09.870 What is your understanding at least, 105 00:05:09.870 --> 00:05:11.580 what are you alleging based on 106 00:05:12.850 --> 00:05:14.570 the why she's an employee 107 00:05:14.570 --> 00:05:16.260 even though she's not completely done 108 00:05:16.260 --> 00:05:17.943 with the employment process? 109 00:05:19.400 --> 00:05:20.840 Well, our allegations are, 110 00:05:20.840 --> 00:05:23.360 and thank you for the question, Justice Kafker. 111 00:05:23.360 --> 00:05:25.370 Our allegations are that she actually is an employee. 112 00:05:25.370 --> 00:05:26.220 I mean, this is someone 113 00:05:26.220 --> 00:05:29.403 who has gone through background checks. 114 00:05:29.403 --> 00:05:32.400 The hospital sent her an ID badge, 115 00:05:32.400 --> 00:05:34.790 they issued her an employee ID number. 116 00:05:34.790 --> 00:05:35.930 They put her on the schedule 117 00:05:35.930 --> 00:05:37.483 told her when to show up for work. 118 00:05:37.483 --> 00:05:38.593 She's an employee. 119 00:05:38.593 --> 00:05:40.080 I mean, I, you know- 120 00:05:40.080 --> 00:05:42.330 But the letter that you both referenced 121 00:05:42.330 --> 00:05:45.000 indicates she's still undergoing 122 00:05:45.000 --> 00:05:47.523 some kind of background review, right? 123 00:05:47.523 --> 00:05:48.940 That's what the letter says. 124 00:05:48.940 --> 00:05:50.474 But with all due respect, that's just not true. 125 00:05:50.474 --> 00:05:53.119 I mean, she had gone through the background checks 126 00:05:53.119 --> 00:05:55.970 and then was hired, 127 00:05:55.970 --> 00:05:57.730 I mean they- Was she getting paid yet? 128 00:05:57.730 --> 00:05:59.943 Was she entering time and getting paid? 129 00:06:00.950 --> 00:06:03.300 Yeah, she hadn't come in for her first day yet, 130 00:06:03.300 --> 00:06:05.300 your honor, but the nature of her relationship 131 00:06:05.300 --> 00:06:07.130 with the hospital was an employee. 132 00:06:07.130 --> 00:06:09.933 I mean, they hired her to be a staff nurse, 133 00:06:11.370 --> 00:06:12.800 you know, as I said, she went through 134 00:06:12.800 --> 00:06:14.967 all the required background checks, 135 00:06:14.967 --> 00:06:16.100 was on the schedule. 136 00:06:16.100 --> 00:06:17.630 They told her to come in a week earlier. 137 00:06:17.630 --> 00:06:18.800 She would have come in that day. 138 00:06:18.800 --> 00:06:20.640 I mean, this is someone who is under their control 139 00:06:20.640 --> 00:06:22.730 and direction as an employee. 140 00:06:22.730 --> 00:06:25.705 So we certainly allege that she was an employee. 141 00:06:25.705 --> 00:06:29.430 And I would also point out, you know, if there's a ruling 142 00:06:29.430 --> 00:06:31.970 in this case that someone who's been hired, 143 00:06:31.970 --> 00:06:33.957 but just simply hasn't started work yet, 144 00:06:33.957 --> 00:06:36.490 can lawfully be terminated 145 00:06:37.655 --> 00:06:39.460 because they've told the employer 146 00:06:39.460 --> 00:06:42.706 that they're enforcing a harassment prevention order, 147 00:06:42.706 --> 00:06:46.160 that would just create an enormous loophole in this law 148 00:06:46.160 --> 00:06:47.371 and completely frustrate its purposes. 149 00:06:47.371 --> 00:06:51.217 What do we make of this sentence in the letter that says, 150 00:06:51.217 --> 00:06:55.387 "The work clearance process was not able to be initiated." 151 00:06:56.260 --> 00:07:01.110 what did, that's your letter, right? 152 00:07:01.110 --> 00:07:03.460 No, no, that's the hospital's letter. 153 00:07:03.460 --> 00:07:08.300 Okay, what's your view, is that incorrect then? 154 00:07:08.300 --> 00:07:12.180 The work clearance process was not able to be initiated? 155 00:07:12.180 --> 00:07:14.640 Yeah, it's with due respect, your honor, 156 00:07:14.640 --> 00:07:15.800 I mean, it's completely false. 157 00:07:15.800 --> 00:07:16.800 I mean, it was completed. 158 00:07:16.800 --> 00:07:18.710 I mean, they, as I said, they, you know, 159 00:07:18.710 --> 00:07:21.833 they put her through a background check, she passed it, 160 00:07:22.720 --> 00:07:26.002 they sent her an ID badge, so she could get in the building- 161 00:07:26.002 --> 00:07:28.870 There, she hasn't quite passed it, right? 162 00:07:28.870 --> 00:07:30.501 Because they're following 163 00:07:30.501 --> 00:07:33.000 whether they should be following up on this 164 00:07:33.890 --> 00:07:37.030 or not is a separate question, but they are following up 165 00:07:37.030 --> 00:07:41.193 on this domestic violence issue incident, aren't they? 166 00:07:42.710 --> 00:07:44.930 Both sides recognize, you say it was wrong 167 00:07:44.930 --> 00:07:47.410 for them to do it, they're gonna tell us 168 00:07:47.410 --> 00:07:49.556 that it was right for them to do it, 169 00:07:49.556 --> 00:07:51.640 but they're still doing that 170 00:07:51.640 --> 00:07:55.283 before she's formally on the payroll, right? 171 00:07:56.980 --> 00:07:58.400 Well, I mean, first of all, your honor, 172 00:07:58.400 --> 00:08:00.460 I think she was in their system 173 00:08:00.460 --> 00:08:03.410 because she had an ID number and it was on the schedule. 174 00:08:03.410 --> 00:08:07.530 So we should, but in your view, because she's got an ID 175 00:08:07.530 --> 00:08:09.730 and she's been given this preliminary schedule 176 00:08:09.730 --> 00:08:13.440 she's an employee for the purposes of a motion to dismiss. 177 00:08:13.440 --> 00:08:16.470 That's your essential holding on the first point? 178 00:08:16.470 --> 00:08:19.240 Well, that plus it's the nature of their relationship, 179 00:08:19.240 --> 00:08:21.220 which is really what what judge Wilkins, 180 00:08:21.220 --> 00:08:23.370 I think, correctly focused on, you know, 181 00:08:23.370 --> 00:08:25.280 she's not a volunteer at the hospital. 182 00:08:25.280 --> 00:08:28.450 She's not, you know, an independent contractor. 183 00:08:28.450 --> 00:08:29.850 The nature of her relationship 184 00:08:29.850 --> 00:08:31.660 with the hospital is employment. 185 00:08:31.660 --> 00:08:34.470 So I think that's the overriding issue 186 00:08:34.470 --> 00:08:36.770 and it's just supported by these other factors. 187 00:08:36.770 --> 00:08:39.650 Okay, so let me get to then the second part of this, 188 00:08:39.650 --> 00:08:41.610 'cause we've took for you to win 189 00:08:41.610 --> 00:08:43.680 we've got some gaps to fill, right? 190 00:08:43.680 --> 00:08:48.680 There's the statutory language isn't exactly satisfied. 191 00:08:49.540 --> 00:08:51.647 You know, she hasn't earned leave, 192 00:08:53.160 --> 00:08:56.879 or requested leave, basically what she's doing 193 00:08:56.879 --> 00:08:58.365 is putting them on notice. 194 00:08:58.365 --> 00:09:03.191 I've got a problem with this other woman 195 00:09:03.191 --> 00:09:08.191 and you're, I want you to be aware of it because it's gonna, 196 00:09:08.390 --> 00:09:10.020 I gotta deal with it, right? 197 00:09:10.020 --> 00:09:11.738 She's not requested leave. 198 00:09:11.738 --> 00:09:15.100 So we have to extend the statutory language 199 00:09:15.100 --> 00:09:18.677 to cover that situation, right? 200 00:09:18.677 --> 00:09:21.294 With due respect I don't think that's correct 201 00:09:21.294 --> 00:09:24.251 because the statutory language- 202 00:09:24.251 --> 00:09:26.010 Tell me, make, tell me how, again 203 00:09:26.010 --> 00:09:27.710 we'd like to start with the language. 204 00:09:27.710 --> 00:09:30.030 Tell me how you meet the language exactly. 205 00:09:30.030 --> 00:09:33.750 I get that the legislature may have intended to cover this. 206 00:09:33.750 --> 00:09:35.580 It's just, I'm trying to make the language work 207 00:09:35.580 --> 00:09:36.932 in your favor here. 208 00:09:36.932 --> 00:09:38.260 Yes, thank you, your honor. 209 00:09:38.260 --> 00:09:41.240 So, and again, there are two, you know, we have two sections 210 00:09:41.240 --> 00:09:43.190 of the statute that we've filed claims under. 211 00:09:43.190 --> 00:09:47.917 So as to the anti-interference section 212 00:09:50.700 --> 00:09:54.640 you know, the FMLA, which, you know, this statute 213 00:09:54.640 --> 00:09:56.270 one reason I've drawn some analogies there 214 00:09:56.270 --> 00:09:59.704 is that this statute really mirrors the language of the FMLA 215 00:09:59.704 --> 00:10:04.670 in terms of, you know, no interference, restraint, 216 00:10:04.670 --> 00:10:07.430 denial of an attempt or sorry exercising 217 00:10:07.430 --> 00:10:08.600 or attempt to exercise her rights. 218 00:10:08.600 --> 00:10:10.666 It's really the same language. 219 00:10:10.666 --> 00:10:14.310 And under the FMLA analyzing that same language, 220 00:10:14.310 --> 00:10:16.510 courts have found that 221 00:10:16.510 --> 00:10:19.653 if the employer has reasonably adequate information, 222 00:10:20.490 --> 00:10:24.360 that an employee may require leave, that's enough. 223 00:10:24.360 --> 00:10:28.630 Once they know that there's a qualifying reason given, 224 00:10:28.630 --> 00:10:31.060 then the law protects the employee 225 00:10:31.060 --> 00:10:32.410 from being interfered with. 226 00:10:33.317 --> 00:10:34.230 And that's important, you know, 227 00:10:34.230 --> 00:10:36.860 one of the sort of trade-offs in the law, 228 00:10:36.860 --> 00:10:39.830 is that this notice really is intended 229 00:10:39.830 --> 00:10:41.490 to benefit the employer. 230 00:10:41.490 --> 00:10:43.269 And here they certainly had noticed 231 00:10:43.269 --> 00:10:45.310 reasonably adequate notice. 232 00:10:45.310 --> 00:10:49.130 And I would just point to the Shah case, the Sarnowsky case, 233 00:10:49.130 --> 00:10:52.580 the Holiday case that we've cited in our brief at page 12. 234 00:10:52.580 --> 00:10:56.740 Yeah, help me with the statutory language a second. 235 00:10:56.740 --> 00:11:00.440 I get, you've done a really nice job on the analogy. 236 00:11:00.440 --> 00:11:02.287 And I understand that, 237 00:11:02.287 --> 00:11:05.290 I'm just trying to make the statute work in your favor. 238 00:11:05.290 --> 00:11:07.010 So use the language of the statute. 239 00:11:07.010 --> 00:11:10.022 Tell me how you meet the language of the statute. 240 00:11:10.022 --> 00:11:12.650 Sure, well, there's actually, you know, a notice 241 00:11:12.650 --> 00:11:14.690 I think this is even clearer than the FMLA, 242 00:11:14.690 --> 00:11:19.150 frankly your honor, because this statute paragraph E 243 00:11:19.150 --> 00:11:23.150 says that the employer needs to get "Appropriate notice." 244 00:11:23.150 --> 00:11:25.510 One of the issues here is that once my client 245 00:11:25.510 --> 00:11:30.510 told the hospital that she was enforcing this order, 246 00:11:31.020 --> 00:11:33.020 you know, they didn't tell her what their policy was. 247 00:11:33.020 --> 00:11:34.540 And the statute says, well, 248 00:11:34.540 --> 00:11:36.896 the notice is according to the employer's policy. 249 00:11:36.896 --> 00:11:39.270 She didn't know what their policy was 250 00:11:39.270 --> 00:11:41.872 but she told them directly that she was enforcing the order. 251 00:11:41.872 --> 00:11:43.170 So they certainly knew it. 252 00:11:43.170 --> 00:11:47.270 And she also gave a copy of the harassment prevention order 253 00:11:47.270 --> 00:11:51.589 which is one of the enumerated methods of notice 254 00:11:51.589 --> 00:11:53.010 that the statute gives. 255 00:11:53.010 --> 00:11:57.440 So she actually specifically gave notice under the statute. 256 00:11:57.440 --> 00:12:00.440 I think that's the, item number one is the order itself, 257 00:12:00.440 --> 00:12:02.118 and she gave that to them. 258 00:12:02.118 --> 00:12:03.350 So I'm trying to be- 259 00:12:03.350 --> 00:12:06.120 I have the, I have the same concerns 260 00:12:06.120 --> 00:12:08.900 that Justice Kafker is asking about. 261 00:12:08.900 --> 00:12:13.030 This is a very difficult situation 262 00:12:13.030 --> 00:12:16.427 and very concerning that she wasn't hired 263 00:12:16.427 --> 00:12:19.753 or she was fired before she started. 264 00:12:20.650 --> 00:12:24.780 And maybe that speaks to whether or not in this circumstance 265 00:12:24.780 --> 00:12:27.078 she should be an at-will employee, 266 00:12:27.078 --> 00:12:31.230 but I have a hard time understanding 267 00:12:31.230 --> 00:12:36.230 what there is to suggest that Children's Hospital 268 00:12:36.310 --> 00:12:40.350 decided to fire her or not hire her 269 00:12:40.350 --> 00:12:44.770 because they were concerned that she would request leave. 270 00:12:44.770 --> 00:12:47.496 In fact, that's probably not why they did it. 271 00:12:47.496 --> 00:12:51.210 They probably did it because they had all of these concerns 272 00:12:51.210 --> 00:12:53.460 that were inappropriate, in my view, 273 00:12:53.460 --> 00:12:56.529 about harassment and domestic violence. 274 00:12:56.529 --> 00:13:00.597 But I don't think there's anything here that says, 275 00:13:00.597 --> 00:13:04.080 "Oh, we're going to not hire her because she might ask to go 276 00:13:04.080 --> 00:13:08.159 to court to renew her restraining order." 277 00:13:08.159 --> 00:13:12.513 I'm really having a hard time understanding that. 278 00:13:12.513 --> 00:13:13.660 Yeah, thank you your honor. 279 00:13:13.660 --> 00:13:16.660 And that, that really gets to the claim 280 00:13:16.660 --> 00:13:17.990 we've made under paragraph I 281 00:13:17.990 --> 00:13:22.610 which is the anti uses the phrase, the term discrimination. 282 00:13:22.610 --> 00:13:26.453 It's really more of a retaliation claim. 283 00:13:27.560 --> 00:13:31.860 You know, the case law under the FMLA reflects that 284 00:13:31.860 --> 00:13:33.853 once an employer has notice, 285 00:13:35.270 --> 00:13:39.030 that the employee has a possible need for leave, 286 00:13:39.030 --> 00:13:41.270 that the employee is engaged in protected activity. 287 00:13:41.270 --> 00:13:46.270 And that's because when an employer terminates someone 288 00:13:46.411 --> 00:13:49.550 because they may need leave and here they certainly knew 289 00:13:49.550 --> 00:13:51.090 she, that my client may need to leave. 290 00:13:51.090 --> 00:13:52.240 I mean, she gave them the order 291 00:13:52.240 --> 00:13:54.537 and said she was enforcing it. 292 00:13:54.537 --> 00:13:57.450 Counsel, I don't mean to interrupt you 293 00:13:57.450 --> 00:14:01.133 but I wanna dovetail off of Justice Lowy's point. 294 00:14:01.133 --> 00:14:05.480 We're at the stage of 12P6. 295 00:14:05.480 --> 00:14:09.700 And so the issue that Justice Lowy just raised 296 00:14:09.700 --> 00:14:13.433 was this is not the old native versus (indistinct) standard. 297 00:14:15.310 --> 00:14:17.920 This is the I and keynote standard. 298 00:14:17.920 --> 00:14:21.881 This is as your brother raised, 299 00:14:21.881 --> 00:14:24.880 this is more than notice pleading now. 300 00:14:24.880 --> 00:14:27.880 You've got to give us something much more 301 00:14:27.880 --> 00:14:31.490 to suggest that it's not just bald speculation 302 00:14:31.490 --> 00:14:35.090 that you gave notice, 303 00:14:35.090 --> 00:14:37.120 that you have this order, 304 00:14:37.120 --> 00:14:40.310 she gets terminated after it well, 305 00:14:40.310 --> 00:14:43.030 arguably still in a conditional offer. 306 00:14:43.030 --> 00:14:45.820 So therefore ipso facto, it's gotta be because 307 00:14:45.820 --> 00:14:49.850 she was going to eventually ask for time off. 308 00:14:49.850 --> 00:14:53.430 Isn't that exactly what I keynote says you can't do, 309 00:14:53.430 --> 00:14:55.723 you just aren't you just speculating here? 310 00:14:56.870 --> 00:15:00.330 Well, your honor, we've actually pled the specific, 311 00:15:00.330 --> 00:15:04.290 specific facts that would meet the prime aphasia case. 312 00:15:04.290 --> 00:15:06.920 So in terms of causation, you know, 313 00:15:06.920 --> 00:15:09.630 we lay out the fact that she put them on notice. 314 00:15:09.630 --> 00:15:12.130 They said they were going to speak to the harasser 315 00:15:12.130 --> 00:15:13.490 which as we've argued in our brief, 316 00:15:13.490 --> 00:15:14.930 I won't go into that whole argument, 317 00:15:14.930 --> 00:15:17.400 but is completely improper. 318 00:15:17.400 --> 00:15:20.650 And then they let her go and gave her no reason. 319 00:15:20.650 --> 00:15:23.240 And when this, when the case is analyzed, 320 00:15:23.240 --> 00:15:26.190 under the burden shifting standard, once we've, 321 00:15:26.190 --> 00:15:31.060 once we've shown that the temporal proximity is very close 322 00:15:31.060 --> 00:15:33.740 and here it's a week or less, I mean, 323 00:15:33.740 --> 00:15:36.809 we've cited cases where it's 11 months here, it's a week. 324 00:15:36.809 --> 00:15:40.080 That's certainly sufficient to meet the prime aphasia case. 325 00:15:40.080 --> 00:15:42.726 And if you look at the broader circumstances, you know, 326 00:15:42.726 --> 00:15:46.690 they gave her no reason, why they let her go 327 00:15:48.290 --> 00:15:50.660 what they've said and they've attached their letter 328 00:15:50.660 --> 00:15:54.052 is that they couldn't start the onboarding process 329 00:15:54.052 --> 00:15:55.610 which is completely false. 330 00:15:55.610 --> 00:15:56.443 You know, they didn't say, 331 00:15:56.443 --> 00:15:58.042 "Hey we found disturbing information 332 00:15:58.042 --> 00:16:01.700 when we talked to your stalker." 333 00:16:01.700 --> 00:16:04.634 They didn't say that, they didn't say that you didn't meet 334 00:16:04.634 --> 00:16:06.310 the conditions of your conditional employment. 335 00:16:06.310 --> 00:16:07.710 So that, that argument they've made 336 00:16:07.710 --> 00:16:10.000 I think is a complete red herring. 337 00:16:10.000 --> 00:16:11.570 They said something completely false 338 00:16:11.570 --> 00:16:14.220 which is we can't even start the process. 339 00:16:14.220 --> 00:16:17.050 I mean, she's at the end of the process already. 340 00:16:17.050 --> 00:16:18.414 So, you know, here 341 00:16:18.414 --> 00:16:20.640 I think we've laid out the specific facts. 342 00:16:20.640 --> 00:16:24.343 We're not relying on just pure conclusory statements 343 00:16:24.343 --> 00:16:27.260 that she could prove our case. 344 00:16:27.260 --> 00:16:28.610 I mean, this is at the pleading stage. 345 00:16:28.610 --> 00:16:30.650 We need to see how the evidence comes out. 346 00:16:30.650 --> 00:16:32.867 When you've got someone who's, you know, 347 00:16:32.867 --> 00:16:36.578 actively pursued by the employer, passes a background check, 348 00:16:36.578 --> 00:16:39.250 they hire her, they put her on the schedule. 349 00:16:39.250 --> 00:16:41.040 She says, "Listen, I've gotta enforce 350 00:16:41.040 --> 00:16:43.940 this harassment prevention order against the stalker." 351 00:16:43.940 --> 00:16:46.783 And then a few days later they fire her, you know, 352 00:16:48.079 --> 00:16:50.700 in the complaint, I'm not sure what else we could add 353 00:16:50.700 --> 00:16:52.955 that would, that would give a plausible case. 354 00:16:52.955 --> 00:16:55.000 The point I'm making is that, 355 00:16:55.000 --> 00:16:57.338 that doesn't obviate Justice Lowy's point, 356 00:16:57.338 --> 00:17:02.338 that they could have spoken to the defendant 357 00:17:02.440 --> 00:17:03.530 in the harassment order. 358 00:17:03.530 --> 00:17:07.860 They could have come to some other issue that was raised 359 00:17:07.860 --> 00:17:11.920 by that other than potentially asking for time off 360 00:17:11.920 --> 00:17:15.590 to vindicate whatever rights she might've had 361 00:17:15.590 --> 00:17:17.820 under the 250-80 statute. 362 00:17:17.820 --> 00:17:20.113 It doesn't, it doesn't eliminate that. 363 00:17:21.430 --> 00:17:22.263 First of all, your honor, you know, 364 00:17:22.263 --> 00:17:26.230 it's actually a violation of the order for the stalker 365 00:17:26.230 --> 00:17:27.580 and the hospital to speak. 366 00:17:27.580 --> 00:17:31.060 The stalker is not to contact Ms. Osborne Trussell 367 00:17:31.060 --> 00:17:31.895 directly or indirectly, including with an employer. 368 00:17:31.895 --> 00:17:36.895 So here you've got an employer actively, you know, 369 00:17:37.800 --> 00:17:40.010 facilitating a violation of the order. 370 00:17:40.010 --> 00:17:42.310 I mean, the Pibity District Court already found 371 00:17:43.527 --> 00:17:44.780 that this person was a threat to my client 372 00:17:44.780 --> 00:17:46.186 and issued the order. 373 00:17:46.186 --> 00:17:49.282 That can't be true, right counsel. I mean, it can't that 374 00:17:49.282 --> 00:17:52.144 the order as between these two individuals 375 00:17:52.144 --> 00:17:54.593 precludes Children's from doing something. 376 00:17:55.470 --> 00:17:56.303 Right. 377 00:17:56.303 --> 00:17:58.440 But I mean, the stalker, first of all 378 00:17:58.440 --> 00:17:59.797 the stalker's not allowed. 379 00:17:59.797 --> 00:18:01.119 Right, well I get that. 380 00:18:01.119 --> 00:18:04.710 I get the order precludes the stalker doing certain things 381 00:18:04.710 --> 00:18:07.360 but it doesn't preclude Children's from doing things. 382 00:18:08.630 --> 00:18:10.290 Well, I mean, I would argue the Children's 383 00:18:10.290 --> 00:18:12.960 is facilitating a breach of the order. 384 00:18:12.960 --> 00:18:15.570 I mean, there's really no legitimate reason 385 00:18:15.570 --> 00:18:16.797 to talk to the stalker. 386 00:18:16.797 --> 00:18:18.810 That issue has been litigated. 387 00:18:18.810 --> 00:18:20.470 They did a background check on my client 388 00:18:20.470 --> 00:18:22.653 that came back completely clean. 389 00:18:22.653 --> 00:18:24.910 So there really is no legitimate reason 390 00:18:24.910 --> 00:18:29.340 for them to be speaking with the stalker at all. 391 00:18:29.340 --> 00:18:30.526 And again, I would note that 392 00:18:30.526 --> 00:18:32.654 if that was the reason they let her go 393 00:18:32.654 --> 00:18:34.260 their letter would have said that. 394 00:18:34.260 --> 00:18:35.093 And it didn't say that. 395 00:18:35.093 --> 00:18:37.230 And I think we need the opportunity- 396 00:18:37.230 --> 00:18:39.308 Would it be permissible for Children's 397 00:18:39.308 --> 00:18:41.410 would it be permissible for Children's to let her go, 398 00:18:41.410 --> 00:18:44.737 because they learned "The other side of the story?" 399 00:18:47.330 --> 00:18:49.044 No, I don't think it would be your honor. 400 00:18:49.044 --> 00:18:50.830 I mean, there's, that's already been litigated 401 00:18:50.830 --> 00:18:53.520 and a judge found that the stalker was a threat 402 00:18:53.520 --> 00:18:57.500 to my client and my client's enforcing the order. 403 00:18:57.500 --> 00:18:59.991 There's nothing that came up in a background check 404 00:18:59.991 --> 00:19:01.620 that would cause them not to hire her. 405 00:19:01.620 --> 00:19:03.429 I didn't see this in the record, but I, could you, could, 406 00:19:03.429 --> 00:19:07.840 if you could point it out to me, was the order at the point 407 00:19:07.840 --> 00:19:11.005 that it was communicated to Children's Hospital, 408 00:19:11.005 --> 00:19:13.620 was it only after the ex parte 409 00:19:13.620 --> 00:19:16.140 or was it after a two party hearing? 410 00:19:16.140 --> 00:19:18.720 It was after a two party hearing and it was almost a year 411 00:19:18.720 --> 00:19:22.290 after the order entered, so it was a long after. 412 00:19:22.290 --> 00:19:25.480 All right, and does it also indicate as to whether or not 413 00:19:25.480 --> 00:19:27.680 there was evidence taken from the defendant? 414 00:19:28.580 --> 00:19:30.143 Does the record indicate that? 415 00:19:31.730 --> 00:19:33.850 I's a good, you know, I believe that's part of the order, 416 00:19:33.850 --> 00:19:35.640 your honor, but I'm not entirely sure. 417 00:19:35.640 --> 00:19:36.473 Okay. 418 00:19:36.473 --> 00:19:39.230 Can I follow up on Justice Georges' question 419 00:19:39.230 --> 00:19:41.490 about the 12(b)(6) standard, 420 00:19:41.490 --> 00:19:44.052 'cause my understanding your argument, 421 00:19:44.052 --> 00:19:46.236 and again, if I'm mischaracterizing, 422 00:19:46.236 --> 00:19:50.632 when she alerts Children's Hospital 423 00:19:50.632 --> 00:19:55.415 that there's a domestic violence restraining order 424 00:19:55.415 --> 00:19:58.350 out there, she is putting them on, 425 00:19:58.350 --> 00:20:00.400 I guess what you call implicit notice 426 00:20:00.400 --> 00:20:04.010 that she may need time off to deal with this, 'cause again, 427 00:20:04.010 --> 00:20:07.150 I'm trying to apply the statutory language 428 00:20:07.150 --> 00:20:10.470 in a way that you win, but I need to get there. 429 00:20:10.470 --> 00:20:14.283 So I agree you satisfy everything, 430 00:20:16.110 --> 00:20:18.260 except for the request for leave, 431 00:20:18.260 --> 00:20:21.370 you have to somehow get there. 432 00:20:21.370 --> 00:20:24.540 Is it that you're notice that she's got 433 00:20:24.540 --> 00:20:27.300 this restraining order to Children's 434 00:20:27.300 --> 00:20:29.537 means that she's implicitly said, 435 00:20:29.537 --> 00:20:32.240 "Look I'm gonna need time to deal with this." 436 00:20:32.240 --> 00:20:37.240 And is that enough for you to satisfy the 12(b)(6) standard? 437 00:20:37.960 --> 00:20:41.850 'Cause, and is that right, is that your argument? 438 00:20:41.850 --> 00:20:43.950 It is, it is your honor. 439 00:20:43.950 --> 00:20:47.540 And, you know, the issue with that claim, 440 00:20:47.540 --> 00:20:49.880 the retaliation claim under paragraph five- 441 00:20:49.880 --> 00:20:54.680 I get I, if you've, if you've met the, I you meet 442 00:20:54.680 --> 00:20:59.180 if they fired her, because you requested leave 443 00:20:59.180 --> 00:21:03.870 to deal with this, they're violating I, I get it. 444 00:21:03.870 --> 00:21:06.260 But I've got to somehow get over the hurdle 445 00:21:06.260 --> 00:21:08.870 that the trial judge or the motion judge didn't 446 00:21:08.870 --> 00:21:11.320 which is that you requested leave. 447 00:21:11.320 --> 00:21:15.240 And I'm trying to get a sense is, is your, 448 00:21:15.240 --> 00:21:18.404 is your notifying them an implicit request 449 00:21:18.404 --> 00:21:21.000 that you're gonna need time to deal with this, 450 00:21:21.000 --> 00:21:22.340 through your work? 451 00:21:22.340 --> 00:21:24.790 'Cause we have to get over that hurdle, don't we? 452 00:21:26.100 --> 00:21:28.820 Well, it, yes. 453 00:21:28.820 --> 00:21:31.120 I mean, we need to allege enough to show 454 00:21:31.120 --> 00:21:33.083 that there's a plausible case, 455 00:21:34.030 --> 00:21:38.100 that they fired her because she engaged 456 00:21:38.100 --> 00:21:40.703 in protected activity. 457 00:21:40.703 --> 00:21:41.790 Right? 458 00:21:41.790 --> 00:21:44.640 And that's where these FMLA cases are helpful, 459 00:21:44.640 --> 00:21:46.361 because and I can, I can point 460 00:21:46.361 --> 00:21:50.750 I think this is probably the best distillation of this point 461 00:21:50.750 --> 00:21:52.350 that I could find, your honor, 462 00:21:52.350 --> 00:21:54.730 it's an a case it's not in my brief. 463 00:21:54.730 --> 00:21:58.427 I'm happy to to send the site over today, 464 00:21:58.427 --> 00:22:00.733 if that would help, but, you know, 465 00:22:00.733 --> 00:22:04.600 and the case it's called Johnson V Dollar General 466 00:22:04.600 --> 00:22:07.240 inside of the Northern District of Iowa 467 00:22:07.240 --> 00:22:08.150 and the court there said 468 00:22:08.150 --> 00:22:10.670 that it would defeat the purpose of the statute 469 00:22:10.670 --> 00:22:13.861 to allow an employer to retaliate against an employee, 470 00:22:13.861 --> 00:22:16.966 when the employer has received enough information 471 00:22:16.966 --> 00:22:19.440 to put the employer on notice 472 00:22:19.440 --> 00:22:23.050 that the employee may need FMLA leave. 473 00:22:23.050 --> 00:22:25.410 And the reason for that, the court explained 474 00:22:25.410 --> 00:22:27.735 was because in that situation, 475 00:22:27.735 --> 00:22:32.295 the employer has both shown the required animus 476 00:22:32.295 --> 00:22:36.460 and engaged in conduct of sufficient gravity 477 00:22:36.460 --> 00:22:39.130 to brand the employers actions as retaliatory. 478 00:22:39.130 --> 00:22:41.950 So, you know, under the interference provision 479 00:22:41.950 --> 00:22:44.550 there's no, you know, there's no motive 480 00:22:44.550 --> 00:22:47.740 that we need to prove, but even under retaliation, you know, 481 00:22:47.740 --> 00:22:49.896 once they know that she may require leave, 482 00:22:49.896 --> 00:22:51.760 and again, I think we've put forward 483 00:22:51.760 --> 00:22:55.463 more than sufficient facts to show that they knew that, 484 00:22:55.463 --> 00:22:57.810 they can't fire her for that reason. 485 00:22:57.810 --> 00:23:00.720 But counsel, and I don't want to belabor this point 486 00:23:00.720 --> 00:23:02.770 but there were a whole lot of dominoes 487 00:23:02.770 --> 00:23:04.538 that would have had to have fallen 488 00:23:04.538 --> 00:23:07.800 for all of this to come into play. 489 00:23:07.800 --> 00:23:09.043 You allege a violation. 490 00:23:09.043 --> 00:23:12.900 Some reviewing authority was going to have to find 491 00:23:12.900 --> 00:23:16.420 either by an application or the police probable cause 492 00:23:16.420 --> 00:23:19.970 for a complaint, there would have gone, you know, 493 00:23:19.970 --> 00:23:21.870 through all the procedural machinations 494 00:23:21.870 --> 00:23:24.890 assuming all of that, and then potentially a trial. 495 00:23:24.890 --> 00:23:27.710 There are all of these things that are so far downstream 496 00:23:27.710 --> 00:23:31.150 which again goes back to the I keynote standards. 497 00:23:31.150 --> 00:23:33.860 You're making a lot of presumptions here, 498 00:23:33.860 --> 00:23:38.440 that needs to be alleged with some specificity, 499 00:23:38.440 --> 00:23:40.200 which some have in the complaint. 500 00:23:40.200 --> 00:23:43.116 And I'm just wondering if you're saying it's there, 501 00:23:43.116 --> 00:23:45.260 then that's all you need to say. 502 00:23:45.260 --> 00:23:48.480 But again, I'm just wondering, I didn't see that in there. 503 00:23:48.480 --> 00:23:51.380 And I'm wondering if you're saying that that's pled 504 00:23:51.380 --> 00:23:54.380 in the complaint and if you could point me to where that is. 505 00:23:55.510 --> 00:23:58.120 Well, your honor, you know, my client hadn't been, 506 00:23:58.120 --> 00:24:00.480 those things hadn't been scheduled yet, your honor. 507 00:24:00.480 --> 00:24:03.540 I think the issue here is that, you know, 508 00:24:03.540 --> 00:24:06.741 if employers are allowed to fire an employee 509 00:24:06.741 --> 00:24:09.677 who comes to them, which is what the law encourages 510 00:24:09.677 --> 00:24:12.517 is this notice, and that's for the employer's benefit. 511 00:24:12.517 --> 00:24:15.757 If an employee comes to them and says, you know, 512 00:24:15.757 --> 00:24:17.830 "I'm in the process of enforcing this order 513 00:24:17.830 --> 00:24:20.640 I've been in contact with the Haverhill Police Department. 514 00:24:20.640 --> 00:24:22.168 Here's a copy of the order." 515 00:24:22.168 --> 00:24:24.759 And then the employer can fire that person 516 00:24:24.759 --> 00:24:27.101 with no possible consequence. 517 00:24:27.101 --> 00:24:31.450 I just think that completely upends the purpose of this law 518 00:24:31.450 --> 00:24:33.730 and also violates public policy 519 00:24:33.730 --> 00:24:35.540 as we've also we've alleged in our complaint. 520 00:24:35.540 --> 00:24:37.990 So I absolutely think, and we've alleged all that. 521 00:24:37.990 --> 00:24:40.353 And I think that's certainly sufficient 522 00:24:40.353 --> 00:24:41.930 to state a plausible claim. 523 00:24:41.930 --> 00:24:43.531 I don't think the law says 524 00:24:43.531 --> 00:24:46.580 that an employer can fire someone 525 00:24:47.980 --> 00:24:49.970 when they know they're enforcing their rights 526 00:24:49.970 --> 00:24:51.780 as long as no actual court date 527 00:24:51.780 --> 00:24:53.930 or no actual police interview has been scheduled yet. 528 00:24:53.930 --> 00:24:56.480 I mean, that's just not what the law intends 529 00:24:56.480 --> 00:24:59.458 or is it, you know, addresses. 530 00:24:59.458 --> 00:25:02.050 So, I do think that we've certainly pled enough 531 00:25:02.050 --> 00:25:05.097 to state a claim under those two different provisions 532 00:25:05.097 --> 00:25:10.097 of the statute and also under the public policy language. 533 00:25:10.600 --> 00:25:12.530 You know, I don't know if the court has any questions 534 00:25:12.530 --> 00:25:15.350 on that issue, I think we've addressed it in our brief, 535 00:25:15.350 --> 00:25:18.510 so I'm happy to rest on that if there are no questions. 536 00:25:18.510 --> 00:25:21.550 Okay, thank you, Attorney Mason. 537 00:25:21.550 --> 00:25:22.603 Attorney Riley. 538 00:25:26.790 --> 00:25:27.623 You're on mute. 539 00:25:31.420 --> 00:25:33.410 Good morning again, Chief Justice Budd. 540 00:25:33.410 --> 00:25:35.168 And may it please the court. 541 00:25:35.168 --> 00:25:37.550 My name is Richard Riley, 542 00:25:37.550 --> 00:25:39.746 I represent Children's Hospital in this matter. 543 00:25:39.746 --> 00:25:42.360 With me in the virtual courtroom, 544 00:25:42.360 --> 00:25:47.210 but socially acceptable six feet away is Peter Cobar 545 00:25:47.210 --> 00:25:49.760 the attorney who was with me on the brief was indispensable 546 00:25:49.760 --> 00:25:51.660 in the drafting of that brief. 547 00:25:51.660 --> 00:25:55.660 I would like to raise first the issue of whether or not 548 00:25:55.660 --> 00:25:58.733 Ms. Osborne Tressel qualified as an employee 549 00:25:58.733 --> 00:26:01.120 under the statute. 550 00:26:01.120 --> 00:26:05.090 Judge Wilkins held that she did qualify 551 00:26:05.090 --> 00:26:08.780 for reasons stated in his opinion, respectfully we disagree. 552 00:26:08.780 --> 00:26:11.953 And because this court can uphold the dismissal 553 00:26:11.953 --> 00:26:14.780 of the case on any basis that's available to it 554 00:26:14.780 --> 00:26:17.430 in the record, we feel this threshold issue 555 00:26:17.430 --> 00:26:20.062 is the first to be discussed. 556 00:26:20.062 --> 00:26:24.300 I'm not aware of employees who get badges 557 00:26:24.300 --> 00:26:29.300 and a work schedule who haven't been cleared for takeoff. 558 00:26:31.427 --> 00:26:34.400 Is that common practice at Children's Hospital? 559 00:26:34.400 --> 00:26:36.570 I mean, getting a badge at a hospital 560 00:26:36.570 --> 00:26:38.218 is a big deal, isn't it? 561 00:26:38.218 --> 00:26:41.540 It is, I'm sure your honor, as soon as it's, you know 562 00:26:41.540 --> 00:26:44.300 activated whenever that is, to actually open doors 563 00:26:44.300 --> 00:26:46.393 and whatever that may entail. 564 00:26:47.320 --> 00:26:51.100 But the offer letter stated, 565 00:26:51.100 --> 00:26:53.887 not just that our offer is contingent 566 00:26:53.887 --> 00:26:56.690 upon a comprehensive background check. 567 00:26:56.690 --> 00:27:01.160 It stated that employment is contingent 568 00:27:01.160 --> 00:27:03.210 upon a number of things, 569 00:27:03.210 --> 00:27:05.710 including a comprehensive background check. 570 00:27:05.710 --> 00:27:10.560 The timing that is available in the pleadings 571 00:27:10.560 --> 00:27:13.647 that we can derive from the pleadings alone 572 00:27:13.647 --> 00:27:18.527 is that the offer letter was made on February 12th of 2019. 573 00:27:18.527 --> 00:27:22.020 And it was on February 28th, 2019 574 00:27:22.020 --> 00:27:25.510 that Ms. Osborne Trussell discovered 575 00:27:25.510 --> 00:27:29.550 that the alleged harasser had contacted the hospital 576 00:27:29.550 --> 00:27:31.800 and violated the HPO 577 00:27:31.800 --> 00:27:33.857 and brought this to the hospital's attention. 578 00:27:33.857 --> 00:27:37.340 So regardless of whether the background check 579 00:27:37.340 --> 00:27:40.080 to the extended had been done prior to February 12th 580 00:27:40.080 --> 00:27:41.230 had been completed, 581 00:27:41.230 --> 00:27:44.080 it was certainly within the hospital's purview. 582 00:27:44.080 --> 00:27:47.580 And I would suggest the obligation of an entity 583 00:27:47.580 --> 00:27:50.750 such as Children's Hospital and considering the population 584 00:27:50.750 --> 00:27:52.951 of patients and families that they serve, 585 00:27:52.951 --> 00:27:55.298 that if they receive information 586 00:27:55.298 --> 00:27:58.080 such as is alleged in this case, 587 00:27:58.080 --> 00:28:02.620 from a person allegedly harassing this prospective employee 588 00:28:02.620 --> 00:28:05.200 or the person who has accepted the offer of employment 589 00:28:05.200 --> 00:28:07.310 can contingent on the background check 590 00:28:07.310 --> 00:28:10.040 that they continue the background check 591 00:28:10.040 --> 00:28:13.160 and that they did continue that is evidenced 592 00:28:13.160 --> 00:28:16.640 by the fact that as is alleged in the complaint, 593 00:28:16.640 --> 00:28:20.390 the plaintiff, excuse me, 594 00:28:20.390 --> 00:28:23.260 the hospital informed the plaintiff in response 595 00:28:23.260 --> 00:28:27.015 to the post February 28th interaction, 596 00:28:27.015 --> 00:28:29.460 informed the plaintiff that the hospital 597 00:28:29.460 --> 00:28:32.940 was going to communicate with the alleged harasser 598 00:28:32.940 --> 00:28:34.850 to get her side of the story. 599 00:28:34.850 --> 00:28:37.544 That's what the complaint alleges, 600 00:28:37.544 --> 00:28:40.874 which understanding that we're bound by that. 601 00:28:40.874 --> 00:28:45.874 I know that I'm not, it's not open to me 602 00:28:45.910 --> 00:28:49.067 nor would I attempt to present to the court 603 00:28:49.067 --> 00:28:51.542 any actual facts as might have, 604 00:28:51.542 --> 00:28:55.563 might've be elicited in the course of the case. 605 00:28:56.980 --> 00:28:59.200 Again, from a 12(b)(6) perspective 606 00:28:59.200 --> 00:29:01.020 don't we have enough facts allege 607 00:29:01.020 --> 00:29:04.715 that she was essentially hired and she was fired 608 00:29:04.715 --> 00:29:08.973 based on this, your investigation of this, 609 00:29:11.880 --> 00:29:14.203 harassment prevention or which accorded issue, 610 00:29:16.200 --> 00:29:19.017 don't, we, again trials of different matters, 611 00:29:19.017 --> 00:29:21.550 even summary judgment after discovery, 612 00:29:21.550 --> 00:29:25.080 but they've alleged essentially you gave her a badge, 613 00:29:25.080 --> 00:29:26.550 you put her in her work schedule, 614 00:29:26.550 --> 00:29:30.561 she informs you that she's got someone stalking her 615 00:29:30.561 --> 00:29:34.140 and then you fire her after you follow up. 616 00:29:34.140 --> 00:29:37.023 There's no indication of anything else in this, 617 00:29:37.880 --> 00:29:39.300 that, except for that. 618 00:29:39.300 --> 00:29:41.660 And doesn't that get you? 619 00:29:41.660 --> 00:29:44.210 I wanna get to the leave issue separately 620 00:29:44.210 --> 00:29:47.020 but doesn't that I think they seem to have alleged enough 621 00:29:47.020 --> 00:29:48.557 for her to be an employee, 622 00:29:48.557 --> 00:29:51.463 and that you fired her because of this. 623 00:29:52.740 --> 00:29:57.088 Well, we respectfully disagree. 624 00:29:57.088 --> 00:30:00.456 Give me something in their allegations that support 625 00:30:00.456 --> 00:30:03.192 that that's not the case. 626 00:30:03.192 --> 00:30:04.650 Yes. You accept everything 627 00:30:04.650 --> 00:30:06.552 they've alleged is true. 628 00:30:06.552 --> 00:30:07.807 Well, all of the- 629 00:30:07.807 --> 00:30:09.900 And the reasonable probably inferences 630 00:30:09.900 --> 00:30:11.420 that you can draw from that. 631 00:30:11.420 --> 00:30:14.150 Alright, and what they have alleged in terms 632 00:30:14.150 --> 00:30:18.120 of the connection between, well, we haven't gotten to 633 00:30:18.120 --> 00:30:20.270 whether or not a request for leave was made, 634 00:30:20.270 --> 00:30:25.270 but whether or not any effort to restrain 635 00:30:26.250 --> 00:30:30.600 or interfere with Ms. Osborne's asserted rights 636 00:30:30.600 --> 00:30:33.270 under the statute was the reason 637 00:30:33.270 --> 00:30:36.400 that the offer was withdrawn or the employment terminated. 638 00:30:36.400 --> 00:30:39.930 That's, you know, at this point that's not important. 639 00:30:39.930 --> 00:30:42.500 The only allegation in the complaint 640 00:30:42.500 --> 00:30:44.120 is essentially what in the case file 641 00:30:44.120 --> 00:30:46.563 has been referred to as temporal proximity. 642 00:30:47.910 --> 00:30:49.440 The case law is pretty clear 643 00:30:49.440 --> 00:30:52.877 that the temporal proximity is not enough. 644 00:30:52.877 --> 00:30:54.260 We argued in the brief, they- 645 00:30:54.260 --> 00:30:56.960 We have more than temporal proximity. 646 00:30:56.960 --> 00:30:58.920 We also have that she had a badge, 647 00:30:58.920 --> 00:31:00.325 she was scheduled for work, 648 00:31:00.325 --> 00:31:04.420 and that you told her you're gonna follow up on this. 649 00:31:04.420 --> 00:31:07.100 So, you know, it's not, we got, 650 00:31:07.100 --> 00:31:10.180 we got a lot here and this is a 12(b)(6). 651 00:31:10.180 --> 00:31:13.640 Right, but what is not said, 652 00:31:13.640 --> 00:31:16.420 other than the temporal proximity, 653 00:31:16.420 --> 00:31:20.170 and what you've just suggested, your honor, 654 00:31:20.170 --> 00:31:25.170 is that there is a temporal relationship 655 00:31:25.580 --> 00:31:28.569 after the hospital said, we're gonna follow up 656 00:31:28.569 --> 00:31:31.972 and, you know communicate with the harasser, 657 00:31:31.972 --> 00:31:34.129 that the offer was withdrawn. 658 00:31:34.129 --> 00:31:38.211 The fact that those, that that was the sequence of events, 659 00:31:38.211 --> 00:31:42.970 does not establish, and it's not sufficient to plead only 660 00:31:42.970 --> 00:31:44.499 the temporal proximity. 661 00:31:44.499 --> 00:31:46.970 There was no allegation in the complaint 662 00:31:46.970 --> 00:31:50.710 that there was any comment made to Ms. Osborne Trussell, 663 00:31:50.710 --> 00:31:53.845 whether it be in the form of a criticism or as- 664 00:31:53.845 --> 00:31:56.820 I think I get you, let me move to the second point 665 00:31:56.820 --> 00:32:00.246 which makes me nervous from both sides. 666 00:32:00.246 --> 00:32:03.808 So domestic violence is not something 667 00:32:03.808 --> 00:32:07.083 like a doctor's appointment you can schedule. 668 00:32:08.006 --> 00:32:10.120 You know, it happens, 669 00:32:10.120 --> 00:32:13.700 you know, your partner attacks you, 670 00:32:13.700 --> 00:32:17.690 you've gotta run to court and you gotta do it quickly. 671 00:32:17.690 --> 00:32:21.100 Or you've, you know, we can't plan domestic violence. 672 00:32:21.100 --> 00:32:22.620 It's not. 673 00:32:22.620 --> 00:32:27.620 So, isn't this enough here, you know, 674 00:32:27.800 --> 00:32:30.410 if she were an employee, I understand your first argument 675 00:32:30.410 --> 00:32:34.737 but if she's employed and she says, 676 00:32:34.737 --> 00:32:38.160 "This person just violated this order, 677 00:32:38.160 --> 00:32:41.290 I've gotta respond to this immediately." 678 00:32:41.290 --> 00:32:44.590 She doesn't know when she's gonna run, you know, 679 00:32:44.590 --> 00:32:46.640 she's gotta get a lawyer, she's gotta do other things. 680 00:32:46.640 --> 00:32:49.770 I mean, isn't it, we can't plan these things. 681 00:32:49.770 --> 00:32:52.650 This is not, this is just, again, 682 00:32:52.650 --> 00:32:54.490 it's not like going to the doctor 683 00:32:54.490 --> 00:32:57.900 and getting your arm looked at, 684 00:32:57.900 --> 00:33:02.900 it's an unplanned, unprovoked attack that she's saying 685 00:33:03.877 --> 00:33:05.200 "I've gotta deal with this." 686 00:33:05.200 --> 00:33:07.190 And by the way, you're, you've got, 687 00:33:07.190 --> 00:33:09.201 she did, she alerted you, you know, 688 00:33:09.201 --> 00:33:11.600 it's not like she just, you know, 689 00:33:11.600 --> 00:33:14.860 you were on the Facebook notice, right? 690 00:33:14.860 --> 00:33:18.750 It was, it was actually an email, I believe, your honor. 691 00:33:18.750 --> 00:33:21.480 But there was a posting that was tagged yes, 692 00:33:21.480 --> 00:33:23.267 to the hospital. 693 00:33:23.267 --> 00:33:26.010 So isn't that enough? 694 00:33:26.010 --> 00:33:28.971 She's saying, look, you're my employer. 695 00:33:28.971 --> 00:33:31.893 I gotta deal with this. 696 00:33:31.893 --> 00:33:35.560 And, as a courtesy, she's letting you know too, 697 00:33:35.560 --> 00:33:40.310 'cause you know, she could just do nothing too. 698 00:33:40.310 --> 00:33:41.380 I'm just trying to figure out 699 00:33:41.380 --> 00:33:44.831 why that's not enough for notice here, even under, 700 00:33:44.831 --> 00:33:47.630 you know even under this statute 701 00:33:47.630 --> 00:33:50.544 which talks about a request for leave. 702 00:33:50.544 --> 00:33:53.501 Sure, well, the statute actually, well 703 00:33:53.501 --> 00:33:56.910 first of all, your honor, I wanna make one point clear 704 00:33:56.910 --> 00:34:01.240 which it may drive towards the public policy issue. 705 00:34:01.240 --> 00:34:03.342 This is not a domestic violence case. 706 00:34:03.342 --> 00:34:05.510 There's no domestic violence involved. 707 00:34:05.510 --> 00:34:08.269 There's no domestic aspect to it at all. 708 00:34:08.269 --> 00:34:10.880 This was a harassment prevention order 709 00:34:10.880 --> 00:34:13.884 against a third party, unrelated to the plaintiff, 710 00:34:13.884 --> 00:34:15.823 who she claimed was stalking her. 711 00:34:16.970 --> 00:34:20.410 In that but nonetheless, the notice provision 712 00:34:20.410 --> 00:34:22.967 in section 52 eight E- 713 00:34:22.967 --> 00:34:27.050 Again, I'm not sure stalkers plan their attacks either. 714 00:34:27.050 --> 00:34:29.870 I mean, I'm not sure we can count on a stalking incident 715 00:34:29.870 --> 00:34:32.527 the same way we can plan on a medical plan. 716 00:34:32.527 --> 00:34:34.868 But I know, it did not intend to, 717 00:34:34.868 --> 00:34:36.660 for that to be the point your honor, 718 00:34:36.660 --> 00:34:40.182 though, section 52E specifically contemplates 719 00:34:40.182 --> 00:34:43.370 the possibility of, for instance 720 00:34:43.370 --> 00:34:46.535 under section D a threat of imminent danger, 721 00:34:46.535 --> 00:34:49.410 in which case the notice requirement 722 00:34:49.410 --> 00:34:52.450 is not, the employee does not have to comply 723 00:34:52.450 --> 00:34:54.920 with the notice requirement and can satisfy it 724 00:34:54.920 --> 00:34:58.109 with giving the necessary information about it 725 00:34:58.109 --> 00:35:00.550 after the fact, 726 00:35:00.550 --> 00:35:03.783 which goes to the point of this statute 727 00:35:03.783 --> 00:35:07.550 contains requirements and it contains limitations 728 00:35:07.550 --> 00:35:11.860 as to who it covers, when and under what circumstances. 729 00:35:11.860 --> 00:35:13.490 We're past whether she's an employee. 730 00:35:13.490 --> 00:35:17.657 I think that, you know, our argument is made on that 731 00:35:17.657 --> 00:35:21.070 in the briefs and in the discussion we've had here just now, 732 00:35:21.070 --> 00:35:23.302 but as far as notice is concerned, 733 00:35:23.302 --> 00:35:26.562 the notice is that I need leave. 734 00:35:26.562 --> 00:35:30.514 The notice is not that I may at some unspecified point 735 00:35:30.514 --> 00:35:32.850 in the future need leave. 736 00:35:32.850 --> 00:35:35.610 If that were the case, then an employee 737 00:35:35.610 --> 00:35:38.240 who had any kind of a dispute 738 00:35:38.240 --> 00:35:41.260 that warranted a harassment prevention order 739 00:35:41.260 --> 00:35:43.970 could tell the employer that on day one 740 00:35:43.970 --> 00:35:45.360 or in the interview process, 741 00:35:45.360 --> 00:35:48.700 and then from day one forward, that employee 742 00:35:48.700 --> 00:35:52.490 would essentially no longer be an at-will employee. 743 00:35:52.490 --> 00:35:57.490 Because if that employee were terminated for no reason, 744 00:35:58.170 --> 00:36:01.390 which is what an at-will employee is, 745 00:36:01.390 --> 00:36:05.000 then the same argument is being made here could be made. 746 00:36:05.000 --> 00:36:07.130 Well, I told them that I might need leave 747 00:36:08.420 --> 00:36:12.440 under the abusive behavior statute at some point in time, 748 00:36:12.440 --> 00:36:14.490 and they fired me after that, 749 00:36:14.490 --> 00:36:18.815 so therefore there's been a violation of the statute. 750 00:36:18.815 --> 00:36:21.750 There was no actual request for leave. 751 00:36:21.750 --> 00:36:26.338 In fact, in the reply brief of the plaintiff, 752 00:36:26.338 --> 00:36:31.070 it is admitted that the reason that no amendment 753 00:36:31.070 --> 00:36:33.210 to the complaint in the underlying matter 754 00:36:33.210 --> 00:36:36.440 which judge Wilkins invited the plaintiffs to do, 755 00:36:36.440 --> 00:36:39.200 the reason that no amended complaint was filed, 756 00:36:39.200 --> 00:36:42.780 was because there were no additional facts to alleged. 757 00:36:42.780 --> 00:36:47.780 This is on, I think page six of the talent's reply brief. 758 00:36:48.830 --> 00:36:51.550 Council, can I ask you to address your brother's point, 759 00:36:51.550 --> 00:36:56.210 that by giving the hospital notice of the HPO, 760 00:36:56.210 --> 00:36:58.510 it was sufficient as it might be 761 00:36:58.510 --> 00:37:00.810 under the Family Medical Leave Act 762 00:37:00.810 --> 00:37:05.640 to put the hospital on notice that leave may be required 763 00:37:05.640 --> 00:37:06.550 if it, you know, 764 00:37:06.550 --> 00:37:10.374 if the court date interfered with the schedule, 765 00:37:10.374 --> 00:37:13.390 if all these contingencies happened 766 00:37:13.390 --> 00:37:15.407 you know, if I go into premature labor 767 00:37:15.407 --> 00:37:17.323 and why isn't this enough? 768 00:37:19.320 --> 00:37:23.810 Simply because your honor, the, this particular statute 769 00:37:23.810 --> 00:37:25.743 not the FMLA I'll get to that, 770 00:37:26.990 --> 00:37:31.501 does not speak to protection of employees 771 00:37:31.501 --> 00:37:36.501 who might someday need the protections of the statute. 772 00:37:37.410 --> 00:37:38.920 No, but I'm talking about notice. 773 00:37:38.920 --> 00:37:41.700 Like why isn't it enough for notice to say 774 00:37:41.700 --> 00:37:46.140 here's the HPO, this posting happened, 775 00:37:46.140 --> 00:37:47.370 I'm pursuing police action. 776 00:37:47.370 --> 00:37:50.330 Why isn't that enough notice of the leave 777 00:37:50.330 --> 00:37:51.867 that may be required? 778 00:37:51.867 --> 00:37:54.008 At this point he doesn't, she doesn't know 779 00:37:54.008 --> 00:37:55.890 if the court date's gonna interfere 780 00:37:55.890 --> 00:37:58.460 with whatever schedule the hospital has planned for her. 781 00:37:58.460 --> 00:38:01.080 Sure, well, eventually she will, presumably, 782 00:38:01.080 --> 00:38:03.180 it might be the same day, might be the next day, 783 00:38:03.180 --> 00:38:07.340 but she will know if there's going to be a hearing 784 00:38:07.340 --> 00:38:10.940 or some meeting with the DA that she needs to attend. 785 00:38:10.940 --> 00:38:13.128 And at that point she will give, 786 00:38:13.128 --> 00:38:16.340 as required under the statute, the notice. 787 00:38:16.340 --> 00:38:18.080 And again, if there's imminent danger, 788 00:38:18.080 --> 00:38:20.410 the notice provision is amended. 789 00:38:20.410 --> 00:38:23.740 The FMLA is a very different statute, 790 00:38:23.740 --> 00:38:25.950 in terms of the notice that's required, 791 00:38:25.950 --> 00:38:29.160 the amount of time that it provides the employee 792 00:38:29.160 --> 00:38:32.080 and the disruption to the employer's work 793 00:38:32.080 --> 00:38:33.252 are completely different 794 00:38:33.252 --> 00:38:38.252 such that the Congress delegated to the Secretary of Labor 795 00:38:39.930 --> 00:38:43.300 the right to draft regulations. 796 00:38:43.300 --> 00:38:45.570 And one of those specific regulations 797 00:38:45.570 --> 00:38:50.290 is 29 CFR 825.302 798 00:38:50.290 --> 00:38:52.910 which is employee notice requirements 799 00:38:52.910 --> 00:38:55.904 for foreseeable FMLA leave. 800 00:38:55.904 --> 00:39:00.904 That section, which is discussing the Amicus briefs as well, 801 00:39:02.620 --> 00:39:04.540 does require an employer, 802 00:39:04.540 --> 00:39:08.980 even if the employee doesn't quite know that it's FMLA 803 00:39:08.980 --> 00:39:11.670 they're looking for, and isn't entirely clear 804 00:39:11.670 --> 00:39:14.010 as to what they need or when they may need it. 805 00:39:14.010 --> 00:39:17.410 There's a requirement under this regulation, which is two 806 00:39:17.410 --> 00:39:21.790 and a half single-spaced pages long, that the employer 807 00:39:21.790 --> 00:39:25.830 has to engage in a proactive discussion with the employee 808 00:39:25.830 --> 00:39:27.700 and try and figure out what you're gonna need, 809 00:39:27.700 --> 00:39:29.030 when you're gonna need it. 810 00:39:29.030 --> 00:39:34.030 That is not what they, the abusive behavior statute 811 00:39:34.100 --> 00:39:35.900 in Massachusetts is about. 812 00:39:35.900 --> 00:39:40.760 It's very specific as the rights that it confers. 813 00:39:40.760 --> 00:39:43.190 And it's very specific about the limitations 814 00:39:43.190 --> 00:39:46.160 as to the companies that are subject to it. 815 00:39:46.160 --> 00:39:48.900 Not including any who have less than fewer 816 00:39:48.900 --> 00:39:50.470 than 50 employees. 817 00:39:50.470 --> 00:39:54.702 It, requirements of notice and documentation to establish 818 00:39:54.702 --> 00:39:57.279 what leave is required to establish. 819 00:39:57.279 --> 00:40:00.200 It's one of the purposes set forth in the statute 820 00:40:00.200 --> 00:40:02.400 when it's gonna be required, et cetera. 821 00:40:02.400 --> 00:40:06.420 So the FMLA cases are really on the notice issue 822 00:40:06.420 --> 00:40:08.010 are not analogous at all. 823 00:40:08.010 --> 00:40:10.670 They serve a different purpose and are the subject 824 00:40:10.670 --> 00:40:13.697 of detailed regulation, which itself shows 825 00:40:13.697 --> 00:40:17.861 that if our legislature had intended anything 826 00:40:17.861 --> 00:40:21.058 other than what it states in the statute, 827 00:40:21.058 --> 00:40:23.310 it could have said so, if- 828 00:40:23.310 --> 00:40:25.617 Do you think, you think our legislature, 829 00:40:25.617 --> 00:40:29.250 again, do you think our legislature intended 830 00:40:29.250 --> 00:40:32.100 so I'm not saying this is exactly your case, 831 00:40:32.100 --> 00:40:35.280 but let me pose it the following hypothetical, 832 00:40:35.280 --> 00:40:39.293 some employee comes in completely upset. 833 00:40:39.293 --> 00:40:42.920 You know, my spouse is beating me 834 00:40:42.920 --> 00:40:45.747 and your employer says, "You're fired." 835 00:40:47.750 --> 00:40:50.101 I take it, your view is that's okay. 836 00:40:50.101 --> 00:40:51.930 No, no, no, your honor. 837 00:40:51.930 --> 00:40:53.894 Why isn't that okay? 838 00:40:53.894 --> 00:40:57.050 In your view? 839 00:40:57.050 --> 00:41:01.100 The check home case says the temporal proximity 840 00:41:01.100 --> 00:41:02.590 is not enough, 841 00:41:02.590 --> 00:41:05.130 frankly, I think that if in the meeting 842 00:41:05.130 --> 00:41:06.850 and to the face of the employee, 843 00:41:06.850 --> 00:41:11.850 in response to that statement, that rule might be bent, or- 844 00:41:13.204 --> 00:41:15.920 Why is it different than what you're arguing? 845 00:41:15.920 --> 00:41:18.030 I'm just not sure I understand why it's not 846 00:41:18.030 --> 00:41:22.047 because essentially you're saying if you fire them 847 00:41:22.047 --> 00:41:27.047 before the request it, you're safe, but, I just, 848 00:41:27.563 --> 00:41:29.210 just distinguish that for me, 849 00:41:29.210 --> 00:41:31.240 'cause I'd like to have comfort 850 00:41:31.240 --> 00:41:33.460 that I'm not allowing that to occur 851 00:41:33.460 --> 00:41:35.410 if I decide in your favor. 852 00:41:35.410 --> 00:41:40.410 Well, safe is I'm not sure the word I would use, 853 00:41:41.710 --> 00:41:45.020 the employer start, we start off this whole analysis 854 00:41:45.020 --> 00:41:48.193 with the employment relationship being at will. 855 00:41:49.070 --> 00:41:53.043 Unless there is some statutory violation, 856 00:41:53.043 --> 00:41:56.493 or a public policy issue, which we have not yet discussed, 857 00:41:57.380 --> 00:42:01.580 there is no necessity for giving the employee a reason. 858 00:42:01.580 --> 00:42:04.380 The hypothetical that you have just suggested 859 00:42:04.380 --> 00:42:06.630 which is not, which are not the facts of this case 860 00:42:06.630 --> 00:42:08.280 and are not pleaded in this case. 861 00:42:09.150 --> 00:42:11.730 I would, if I were representing the plaintiff in that case, 862 00:42:11.730 --> 00:42:15.290 I would argue that that temporal proximity 863 00:42:15.290 --> 00:42:19.350 which is bing bing, in, you know, directly in response 864 00:42:19.350 --> 00:42:22.620 to one statement that, that you're fired, 865 00:42:22.620 --> 00:42:25.691 it's implied you're fired because you just told me 866 00:42:25.691 --> 00:42:30.000 that you had to go to court to get a restraining order. 867 00:42:30.000 --> 00:42:34.210 In our case, there is nothing but a temporal proximity 868 00:42:34.210 --> 00:42:37.240 that is somewhere in the course of about two weeks 869 00:42:37.240 --> 00:42:40.130 during which other things were happening. 870 00:42:40.130 --> 00:42:42.510 The thing that was happening was the communication 871 00:42:42.510 --> 00:42:45.350 with the alleged harasser, a question raised earlier, 872 00:42:45.350 --> 00:42:49.694 which you know, is, it highlights the issue 873 00:42:49.694 --> 00:42:53.146 although it's a danger area and I'm not suggesting 874 00:42:53.146 --> 00:42:56.710 in any way, this is what Children's did or would do. 875 00:42:56.710 --> 00:43:00.760 But if Children's had contacted the alleged harasser 876 00:43:00.760 --> 00:43:04.310 and learned of facts that convinced it 877 00:43:04.310 --> 00:43:08.690 that my goodness, there is really a lot more to this story, 878 00:43:08.690 --> 00:43:10.791 and we have some significant doubts 879 00:43:10.791 --> 00:43:14.712 about this current almost employee 880 00:43:14.712 --> 00:43:18.440 and her maturity, her judgment, her character. 881 00:43:18.440 --> 00:43:21.530 Isn't that, isn't that her summary judgment 882 00:43:21.530 --> 00:43:25.394 and trial that you made very, hey, you may have discovered 883 00:43:25.394 --> 00:43:28.190 that she was stalking the other person. 884 00:43:28.190 --> 00:43:29.590 And you know, you can't have someone 885 00:43:29.590 --> 00:43:32.530 like that in working in your hospital. 886 00:43:32.530 --> 00:43:34.840 Or the two of them are gonna draw swords 887 00:43:34.840 --> 00:43:38.240 in the middle of the, you know, emergency room. 888 00:43:38.240 --> 00:43:41.210 But we don't have those facts. 889 00:43:41.210 --> 00:43:42.043 We do. 890 00:43:42.043 --> 00:43:44.730 That for summary judgment and a trial 891 00:43:45.872 --> 00:43:49.198 what we have are close temporal proximity, 892 00:43:49.198 --> 00:43:51.723 no other explanation, 893 00:43:52.810 --> 00:43:56.630 and a statute that isn't clear, 894 00:43:56.630 --> 00:43:59.070 but you know, I just- 895 00:43:59.070 --> 00:44:02.700 Your honor, if I may, what we don't have 896 00:44:02.700 --> 00:44:07.280 is really anything more than temporal proximity 897 00:44:07.280 --> 00:44:10.763 because it's not as if there's no other explanation, 898 00:44:12.140 --> 00:44:16.353 it could be, and I say could be knowing this is speculative 899 00:44:16.353 --> 00:44:18.170 and I'm leaving it as speculative 900 00:44:18.170 --> 00:44:21.290 because of what the where we are in the 12(b)(6). 901 00:44:21.290 --> 00:44:25.040 It is just as likely, if not more, 902 00:44:25.040 --> 00:44:27.720 that the hospital learned something 903 00:44:27.720 --> 00:44:31.300 in that ongoing background check that is focusing 904 00:44:31.300 --> 00:44:34.230 on the alleged harasser and their communications 905 00:44:34.230 --> 00:44:35.330 that was received. 906 00:44:35.330 --> 00:44:36.868 That's the trial or (indistinct). 907 00:44:36.868 --> 00:44:37.960 I understand your honor. 908 00:44:37.960 --> 00:44:40.882 But my point is that if you take that out of, 909 00:44:40.882 --> 00:44:43.910 that speculative possibility is there, 910 00:44:43.910 --> 00:44:46.530 but the plaintiff has alleged nothing more 911 00:44:46.530 --> 00:44:51.530 than the speculative possibility that the action taken 912 00:44:51.664 --> 00:44:56.664 was in an effort to deny her leave rights under the statute. 913 00:44:57.340 --> 00:45:00.290 So you have to plead more than speculative, 914 00:45:00.290 --> 00:45:02.810 conclusory allegations. 915 00:45:02.810 --> 00:45:04.440 There has to be something specific 916 00:45:04.440 --> 00:45:07.860 and I point back to the Checone case 917 00:45:07.860 --> 00:45:12.400 which talks about why temporal proximity is not enough 918 00:45:12.400 --> 00:45:14.676 in a situation as an FMLA case. 919 00:45:14.676 --> 00:45:18.140 And why it's not sufficient is because they were nothing 920 00:45:18.140 --> 00:45:20.320 like them and this court gave the examples 921 00:45:20.320 --> 00:45:22.994 of negative comments by a supervisor, 922 00:45:22.994 --> 00:45:27.994 expressions of reluctance about that employee's history 923 00:45:28.043 --> 00:45:32.570 of FMLA leave taking, something that is more 924 00:45:32.570 --> 00:45:36.430 than temporal proximity that would suffice to establish 925 00:45:36.430 --> 00:45:39.220 if proven that there was a connection 926 00:45:39.220 --> 00:45:41.740 between not just between learning 927 00:45:41.740 --> 00:45:43.500 about the harassment prevention order 928 00:45:43.500 --> 00:45:47.220 but a connection between the withdrawal of the offer 929 00:45:47.220 --> 00:45:48.053 or terminating her 930 00:45:48.053 --> 00:45:50.120 whichever the court ended up deciding it is 931 00:45:50.120 --> 00:45:55.120 and a desire to interfere with the employee's rights 932 00:45:55.248 --> 00:45:58.537 under the statute, the right to leave. 933 00:45:58.537 --> 00:46:01.255 And my suggestion is that the complaint as it is, 934 00:46:01.255 --> 00:46:05.160 leaves it as speculative, that that was the reason 935 00:46:05.160 --> 00:46:08.120 as it would be speculative for me to say, 936 00:46:08.120 --> 00:46:11.060 there were other reasons discovered in the course of the, 937 00:46:11.060 --> 00:46:14.061 of the background check, it's the plaintiff's burden 938 00:46:14.061 --> 00:46:16.669 to allege more than speculation. 939 00:46:16.669 --> 00:46:19.320 And that's what was not done here. 940 00:46:19.320 --> 00:46:22.130 So the complaint is insufficient 941 00:46:22.130 --> 00:46:25.230 in that it does not establish that she was an employee. 942 00:46:25.230 --> 00:46:27.610 It doesn't state that she requested leave 943 00:46:27.610 --> 00:46:29.840 or the leave was denied or interfered with 944 00:46:29.840 --> 00:46:32.490 or that she was retaliated against any right 945 00:46:32.490 --> 00:46:35.500 that she had under the statute. 946 00:46:35.500 --> 00:46:40.500 The public policy issue, if I could briefly address that, 947 00:46:41.580 --> 00:46:46.580 the public policy is a kind of an escape hatch 948 00:46:47.529 --> 00:46:52.529 where there is no other recourse available to an individual. 949 00:46:53.900 --> 00:46:57.810 The recourse in the (indistinct) case, for instance, 950 00:46:57.810 --> 00:47:02.810 there was no Abusive Behavior Prevention Act at that time. 951 00:47:04.740 --> 00:47:09.230 And so therefore, I think it was Judge Sikora, 952 00:47:09.230 --> 00:47:13.180 ruled that there was going to be a public policy reason 953 00:47:13.180 --> 00:47:14.750 to recognize that right. 954 00:47:14.750 --> 00:47:18.420 But we now have it since 2014, we have a very 955 00:47:18.420 --> 00:47:22.040 specific statute that covers the landscape in terms 956 00:47:22.040 --> 00:47:26.090 of what the legislature believed needed to be provided 957 00:47:26.090 --> 00:47:29.080 to employees and the limitations on it. 958 00:47:29.080 --> 00:47:31.430 The best example being it doesn't apply 959 00:47:31.430 --> 00:47:34.540 to companies that employ fewer than 50 people. 960 00:47:34.540 --> 00:47:37.660 That's a policy determination that the legislature made, 961 00:47:37.660 --> 00:47:41.220 presumably after considering the host of factors 962 00:47:41.220 --> 00:47:44.110 that will ease the burden on the employer, 963 00:47:44.110 --> 00:47:48.200 the need of the employee fairness in terms of notice 964 00:47:48.200 --> 00:47:51.130 and substituting employees for the absent employee, 965 00:47:51.130 --> 00:47:54.141 all those things are fodder for a legislative action 966 00:47:54.141 --> 00:47:58.150 and not for a public policy determination by this court, 967 00:47:58.150 --> 00:48:02.480 particularly where this is not a domestic violence issue. 968 00:48:02.480 --> 00:48:06.410 This is simply a harassment prevention order, 969 00:48:06.410 --> 00:48:10.730 that under the statute, under the stalking statute actually, 970 00:48:10.730 --> 00:48:15.730 what's required is, I don't have the wording right 971 00:48:16.110 --> 00:48:20.011 in front of me, but it's just a pattern of behavior 972 00:48:20.011 --> 00:48:23.280 that is directed at a specific individual 973 00:48:23.280 --> 00:48:26.070 and designed to cause them mental distress 974 00:48:26.070 --> 00:48:29.223 or fear or anxiety words to that effect. 975 00:48:30.120 --> 00:48:33.640 That public policy, I mean, there's a statute that prevents 976 00:48:33.640 --> 00:48:35.840 that prohibits it, in fact makes it criminal 977 00:48:35.840 --> 00:48:40.010 under certain circumstances, but it's not domestic violence. 978 00:48:40.010 --> 00:48:43.560 So, you know, we're not this case is not the case 979 00:48:43.560 --> 00:48:48.140 for this court to determine that it is incumbent 980 00:48:48.140 --> 00:48:51.850 upon the court to establish a public policy exception 981 00:48:51.850 --> 00:48:55.019 to the at-will employment doctrine 982 00:48:55.019 --> 00:48:58.450 because this is not that case. 983 00:48:58.450 --> 00:49:00.570 All right, thank you. 984 00:49:00.570 --> 00:49:02.280 That's been very helpful, 985 00:49:02.280 --> 00:49:03.120 and we're gonna- thank you for your time. 986 00:49:03.120 --> 00:49:06.106 Yeah, we're gonna take a five minute break at this time. 987 00:49:06.106 --> 00:49:07.080 Thank you all. 988 00:49:07.080 --> 00:49:08.510 Thank you, your honors.