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"case_name": "Rhonda Moore v. Trinity Health Corporation",
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"stt_transcript": "Case 26-1902, Rhonda Moore v. Trinity Health et al. Ms. Wilson, when you're ready. May I please the court, counsel? My name is Emily Wilson, and I represent the plaintiff appellant, Dr. Rhonda Moore. The number one reason this court should reverse the district court's granting of summary judgment for Mercy and Trinity is because no decision makers in this case testified that Dr. Moore was terminated solely because of her admitted statement she made on May 6, 2024. It was her statements plus threats and violence in the workplace policy of zero tolerance. It was her statements plus what happened with PT, a white doctor who was similarly situated. It was her statements plus the addendum that they had added to the investigation into the May 6 incident. And it was her statements plus they had concerns about Dr. Moore's credibility and the veracity of her reports as it relates to that incident on May 6. But at summary judgment, Mercy and Trinity argued that the termination had to do solely with the statements that she admitted. And this is the argument that the district court then used to grant summary judgment. The district court held an error that no reasonable jury could conclude that the defendant's decision to terminate Dr. Moore was based on anything other than the incident in which she threatened to kick Rogers. But if this only had to do with Dr. Moore's admitted statements on May 6, every other reason provided by the myriad of decision makers involved for both Mercy and Trinity wasn't necessary, but clearly the decision makers felt it was. And the question is why? And I think when viewing the facts in favor of Dr. Moore, a reasonable jury could answer that with race. And that's because the policy at issue isn't zero tolerance. PT, the white doctor's conduct, was arguably more serious, especially when viewing the facts in light most favorable to Dr. Moore. Why isn't it zero tolerance and then it's just what the consequences might be different, but they're just not going to tolerate it in the workplace? Because that's not what they testified the decision was based on. The reason that that explanation is material is because they could have simply stated she violated the policy. We've decided to jump to termination, but they didn't. Instead, it was. I guess my point is you could jump to suspension or you could you could jump to another consequence. But how does that reflect on whether there's a zero that we're just not going to tolerate that kind of conduct? And I apologize, Judge Kelly, I don't know I'm understanding your question. But the within the policy, it says, you know, we have zero tolerance for it threatens violence in the workplace. Later on in the policy, it articulates that you can suspend or you can decide what punishment based on that conduct. And here, though, the decision makers said. Given that she had violate the policy and because it's zero tolerance, we had we needed to terminate her. The decision was to terminate. Therefore, we had to terminate some of the ways in which they testified about it. It's relying on the policy in a way that the policy is not written. Correct. And it's the fact that the decision makers felt compelled to continue on with their statements and make it seem as if they had no choice. That, well, she violated it and it's zero tolerance. Therefore, it had to be termination. And that, to me, is what a reasonable jury could look at and say, well, why did they feel the need? Where's the evidence of race, though? Two places. So I think either one as it relates to the summary judgment decision. I think when we rely on both Fernco and Reeves in combination, both Supreme Court cases that indicate that, especially in Fernco, that one of the inferences that can be given to a plaintiff like Dr. Rhonda Moore is that when you kind of breaking down these reasons, like the policy is zero tolerance when it's not, that we will make the inference or any of the other three reasons they gave that we will make the inference then that, you know, it could be something else like an illegal motive like race. Because especially businesses don't do things for arbitrary reasons or no reasons at all. So I think that is enough to get us past summary judgment. There's no indication here it's arbitrary for no reason at all. Is there? I believe once we break down the additional reasons that were provided that go beyond her admitted statements that there is nothing left. And so then the second reason that I would provide you, Judge Coates, is that Dr. Weiner, the expert that we had presented in which Judge Locher at the district court had provided her framework and his factual statement of his decision or his findings of fact, she points then to these areas and provides this conduct context as to where things like jumping straight to and calling it zero tolerance is based on race. This idea of secure punishment for black people. This idea that because Dr. Moore was black, that it only took one incident for them to view her negatively, despite the fact that weeks prior, they had all in written communications said incredible things about her leadership and the changes that they were excited she was going to make to this unit. This idea of credibility and the stereotype that I believe is within the investigation that black people are just not as trustworthy to relate to the questioning. Help me understand a little bit more this testimony from your expert. Is it getting at the credibility of the reasons that the decision makers are giving? Is it getting at implicit biases? How is this fitting in to your case and in the steps that you have to prove to establish a discrimination case? Yes. So the testimony is that Helen Smith, the investigator, is the one who then presented her findings and her report to certain individuals. But ultimately, she is the one that provided the summary. And within her investigation, which is rather thorough, Dr. Moore gives her no reason to believe anything reports. In fact, I think defense counsel points out even in their briefing at summary judgment. And now that she repeatedly says the same thing over and over consistently. And so your client concedes that when asked if that was a threat, she said, yes, it's a threat. So we've got that baseline. We all kind of agree with the parties agree on what she said. And she agrees. And so where it takes us further is that Helen Smith then does question Dr. Moore throughout for on various items, like why she even went to go retain this nursing supervisor. And then in one important part where in her conclusion that she's kind of describing how she's come to where she's where she got. She talks about that. What happened isn't really contested. Rhonda Moore admitted to saying what she said. But it's the intentions of both parties that are kind of up in the air. And throughout Helen Smith's investigation, she questions Dr. Moore's intentions, not why she did, in fact, say it. Because, yes, in the moment she said, yes, it's a threat. But then she was given this opportunity to kind of explain herself. And so to me, it seems that Helen Smith is notating that her intentions did matter. And so ultimately, the decision maker is saying, well, or decision maker, apologies, the expert witness is saying, so then why didn't you believe her when she said she wasn't trying to threaten her? And clearly, the intentions matter to their decision. So is the expert saying this is not intentional discrimination, but it's so stereotypical and so embedded in our culture that that's what came out? Is that what your expert is saying? Or is it saying that, no, this is active discrimination, sort of the implicit bias? Or is it explicit? Is it something in between? And maybe one of the problems, I'm sorry, I'm going to now multiply my questions here. But we don't have, the district court didn't analyze this expert witness. And so I'm really not, we don't have anything from the ground on methodology. Was it a proper witness? What was it for? And so I know that's a compound question. But I guess my first question is the explicit versus implicit. And then secondly, what do we do with that when the district court really didn't address the expert witness in any substantive way? Apologies to interrupt. On the first one, I would say that she's providing the framework and saying, here's where we see those stereotypes in the decision. I don't know that she is saying explicit versus implicit. What I would argue, though, is that we do have to show intentional discrimination. And it is explicit in the evidence combined with Dr. Weiner's stereotyping framework. Plus then it's explicit in the fact that they felt the need to come up with additional excuses as to why they had to fire Dr. Moore. So it seems to me that they were like, well, we don't trust her. Or certain things were at play there that were intentional and were explicit in their mind, not some implicit bias that they're relying on. And so they chose then to come up with these other excuses to cover it up. On your second question, it's part of the reason that we're asking the decision to be reversed and remanded for a jury trial, because the district court did include the expert witnesses' stereotyping framework and facts within their findings of fact. And so I think it is an error that they then didn't consider that argument, even though it seems to me and I would read that they found that at least the stereotyping framework would be admissible. And I see my time is up, and so unless there's other questions you'd like to answer, I'll take a seat. Very well. Thank you. Good morning. May it please the court, counsel. The fundamental problem here is that the plaintiff, Dr. Rhonda Moore, does not have evidence that race motivated Mercy One and Trinity's decision to terminate her employment. That is the reason that the district court granted summary judgment, and that decision should be affirmed. This is the somewhat rare employment case where the underlying material facts are not in dispute. On May 6th of 2024, Dr. Moore was in a conflict with a subordinate employee as she was escorting that employee out of the workplace. During that interaction, she said to that employee, if you kick me, I will kick you back. That employee said, was that a threat? And Dr. Moore responded in her own words, written in an email shortly after that incident, yes, if you kick me, I will absolutely kick you back. The district court applied well-established legal principles in this circuit, two of which are most critical. One, the employer has discretion in conducting an investigation, and it is not sufficient to critique that investigation or say that investigation should have been conducted differently. If that investigation was conducted in good faith, then that employer has that discretion. What if the investigation reflected contradictory positions? In other words, it's zero tolerance, we need to terminate her, and parallel to that is, well, let's see what else is going on. Is there anything else that she's engaged in that we're uncomfortable with, or what have other people done? Absolutely. I think the Alvarez decision addresses this well. In Alvarez, the court recognized that in conducting an investigation, an employer is going to have to weigh conflicting pieces of evidence, evaluate what is an appropriate scope, and choose among competing inferences, much like a judicial proceeding. And as long as they do so in good faith, that is something within the employer's discretion. Isn't inference is different than sort of relying on other investigative facts? I think not necessarily, right? I think that looking at potential credibility determinations, deciding who to interview, what facts to look at, when to probe further, when you don't need to probe further, all of that is within the reasonable discretion of the employer in investigating. I think specifically on this zero tolerance question, the find later decision is probably the most on point from this circuit. There you have an employer applying a zero tolerance policy in a workplace violence situation. It is described in that case too, just like here, a zero tolerance policy that gives the discretion to impose discipline up to and including termination. And in that case, you have an employer who, based on the facts as they investigate them and understand them, treats two employees differently. And this court recognizes that that falls within the business judgment, both the judgment of how to interpret and apply policies and the judgment of how to investigate, evaluate credibility, and decide what happens. The employer does not need to be perfect. The employer has two fundamentally established principles at issue here. One is the business judgment, and that's going to apply to how to investigate and how to apply the employer's principles. And the second is the honest belief rule. And that's really what the district court applied here, and I think both of those rules were applied correctly by the district court. The honest belief does raise the question of the expert opinion, though, doesn't it? Sort of, all right, well, you believe this, and this is how you reacted, but this expert is going to say, I think, that those beliefs are based on stereotypes that are really race or color based. That's sort of kind of a point where I wondered if the district court needed to acknowledge the, or maybe the court would have to acknowledge the expert. So there are a couple of things there. First of all, the district court did acknowledge the expert, and the district court's opinion fully summarizes everything that the plaintiff, at that point, presented in the statement of disputed facts from their expert. So what you see in the district court's opinion, the summary that the district court includes about the expert in page five of the district court's opinion, there's an entire paragraph saying, this is what Dr. Moore has presented from the expert. That's everything that Dr. Moore presented in the statement of disputed facts from her expert. So the district court took all of that information and then determined that what Dr. Moore presented did not meet the standard for purposes of summary judgment. And that decision is really right for a couple of reasons. First of all, what Dr. Moore presented on summary judgment from her expert and what is contained in the expert report is really just a statement of existing biases in the world, for lack of a better description. And so that there are racial biases that exist. It does not say, and Dr. Moore did not present evidence that those biases were at issue here. It will always be true if there is a potential bias out there that someone could say, maybe that bias existed here. But Dr. Moore was required to present some sort of evidence that it did exist here. And that's really what she didn't do. Well, at least that the circumstances are suggest. Like she couldn't testify that this particular decision maker was acting on. Correct. She would need to present some sort of evidence beyond speculation that there was some sort of bias at play here. There are no race-based statements. There are no indications that anybody who was involved in the decision-making process. And there are about 10 different people involved in the decision-making process were acting out of race-based animus. So in order for this kind of expert testimony to come in, is it your position that you'd already have to have some indicator of racism or color bias? In other words, this can't be the freestanding? It can't stand alone. Yes, Judge Kelly, that is what I would say. And when you look at the cases where courts do admit sort of background evidence, expert testimony, where they are allowing some sort of background bias testimony, it is coupled with other evidence to suggest that there is some sort of discrimination afoot. Do you have cases like that? Those are the cases that are cited in even plaintiff's brief where expert testimony is admitted. And even where it's excluded, if it is allowed to proceed past summary judgment, it is because there is other evidence of discrimination. Otherwise, it really eviscerates the rules that this court and other courts have established. For example, this court has established the rule that the employer is allowed to exercise its business judgment in evaluating credibility of witnesses. If it was sufficient to merely offer an expert to say, well, sometimes bias influences credibility decisions, without any specific evidence that it did in this case, that would mean that every case would move past summary judgment and that an employer could never evaluate credibility decisions. Even if their decisions were in good faith and reasonable, an employer's hands would be completely tied and courts would be sitting as super personnel departments. Juries would be evaluating, hey, there's no evidence that an investigator did anything wrong here. There's no statements. There's no indication of bias. They've implied these rules completely consistently. But because a plaintiff has presented an expert that says sometimes credibility decisions are impacted by bias, we can no longer defer or give them any business judgment discretion. We must let this go to a jury. Similarly, this court has repeatedly found that an employer gets to determine the appropriate level of discipline. And absent some evidence that an employer is taking into account inappropriate considerations on the discipline, we will not sit as a super personnel department and question that business judgment. Here you have an expert that says, well, sometimes race is an impermissible consideration and it leads to higher discipline. If that in and of itself were sufficient alone, then all cases would proceed to a trial and courts would be sitting as super personnel departments. Because what you have here is a case where two people have been terminated. Those were the only two that could be identified under the threats and violence in a workplace policy. One was a white male and one was a black female. The employer applied the policy consistently. Dr. Moore argues that perhaps the other circumstance was actually more serious. One could argue that Dr. Moore's circumstance was more serious. She was in direct physical proximity to carry out the alleged threat. The physician in the other circumstance made a threat to use a voodoo doll over a chat board. So no physical proximity. The employer is the one who has the business judgment and discretion to decide the appropriate discipline. So mere expert testimony should not remove that business judgment. We believe the district judge appropriately complied the business judgment and honest belief rule and that decision should be affirmed. Thank you for your time. Thank you, Ms. Knowles. Ms. Wilson, I'll allow you a minute if there's something you'd like to rub up. Thank you, Your Honor. There is. I believe the reason that the district court did not apply the facts provided by Dr. Weiner's report is because of this sole question issue. So the district court said that the sole question was whether Dr. Moore had presented sufficient evidence to cast doubt on the sincerity of defendants belief that she violated the policy. So again, this honest belief doctrine. But this is operating from a conclusion that could only be made when viewing the facts in mercy and Trinity's favor. That the sole reason for termination was defendants believing she violated the policy. But it was not. It was these other excuses that they piled on top. And the defendants have not conceded that I believe in their appeal brief that yes, there was these other things we considered. And so for all of these reasons, we'd ask that this court reverse the district court's grant of summary judgment and remand for a jury trial. Thank you, counsel. Thank you both for your appearance and argument. Case is submitted and we will issue an opinion in due course."
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