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"stt_transcript": "Well, hold on. I'm sorry. Let's wait for Council Member 2 to be seated. All right. Very well. Please call the next case. 26-1158 from the Western District of Missouri, Jessica Gilmore v. Nexstar Media. All right. Mr. Groves, we'll hear from you when you're ready. You may adjust that podium on the right there so that the microphone is close to you. Very well. Can you hear me? Is it picking up on the mic? Why don't you start and we'll see how it goes. Okay. There we go. May it please the Court? Thank you. My name is McKinley Groves. I'm here honored to represent appellant in this case, Ms. Jessica Gilmore. The issue before this Court today is whether the District Court, in this case, aired an awarding summary judgment to Nexstar Media, Inc. when it directly and expressly declined to consider direct evidence of Nexstar's intent to force Ms. Gilmore to resign. And that specific evidence that I'm talking about is a text message from Taylor Becker, Nexstar's Director of Sales, to Jessica Gilmore that said, well, Jessica pretty much just lied to my face. Hopefully I made her uncomfortable enough, though, that she'll quit. In order to put this in context, and I think for the Court to properly consider this case, I think it's important to look at the timeline of events as they occurred. In July 22, 2024, Ms. Gilmore's mother fell due to a serious illness. She had a stomach ulcer issue, had to be lifelighted to Kansas City. Gilmore had to take paid time off. She took sick leave and eventually decided to file for intermittent leave under the FMLA to take her mother to various doctor's appointments up in Kansas City. She was approved for FMLA on August 20, 2024. And the very next day, there were two meetings, actually three meetings, that are very important. The first, Taylor Becker, that Director of Sales for Nexstar, met with HR contact at the Springfield office, Ms. Tara Walker, and higher up HR, Carrie Torgerson. The notes from that meeting are in the record at page 184 and 185. And there's FMLA in bold print at the top of those notes. And at the bottom, it says 60% at work equals 60% at budget. Meaning that if Ms. Gilmore was missing work due to time at FMLA, or time taking care of her mother, she wouldn't be able to meet her budget goals set by Nexstar. Immediately following that meeting, there was a meeting between Ms. Becker and Ms. Gilmore. Ms. Becker consistently and repeatedly asked Ms. Gilmore whether she was looking for other employment opportunities. And I'll admit to the court that Ms. Gilmore was keeping her options open, but was not seriously considering leaving Nexstar at that time. She executed an affidavit to that effect and testified to that at her deposition. But she did lie to Ms. Becker and said, no, at this time I'm not interviewing. I'm not looking for other opportunities. Immediately after that meeting is when Ms. Becker sent the text message I talked about earlier. So the statement that was made that she had spoken dishonestly to her supervisor was not a false statement? The statement that she spoke to her supervisor was a false statement. I will admit, and that is undisputed, Judge, that that was a false statement. So to say that she lied to her face was correct by Ms. Becker. But the real part that I think is important is that she said, hopefully I made her uncomfortable enough to quit. Now this was a text message that was intended for Chris Pruitt, the general manager and vice president of Nexstar in the Springfield office. This was based on conversations that Ms. Becker and Mr. Pruitt had prior to Gilmore lying to Ms. Becker. So I'm not sure that the lying there is that material to that. But the real point is that she wanted her to quit one day after she was approved for intermittent leave under the FMLA. Immediately upon receiving this message, Gilmore went, as she's required to, she went to Tara Walker, the HR contact, to say, how can I move forward working here when my manager, my director of sales, wants me to quit? Are there cases that would indicate that an exchange like this without more is sufficient to create intolerable working conditions? And yes, Judge, there are multiple cases. And I would say, I would agree with the court that I don't believe this text message alone is enough to cause a constructive discharge. I think this is a case where the court needs to look at the totality of circumstances directly before and following the text message. And I think what you might be getting to. How much time elapsed after the text message before she left? Yes, and before she left, and I'm getting to that. So right after the text message, she goes to HR. She says, I'm not comfortable meeting with Taylor Becker at this time. I'm complaining about Taylor Becker. And despite those clear objections, Ms. Walker allows Ms. Becker into the meeting. Gilmore is not happy with that. She then goes to meet with Chris Pruitt, not knowing that Chris Pruitt was the intended recipient of the text message. Chris Pruitt does three things in that meeting. First, he tells her that the text message was meant for him, but declines to discuss Becker's relationship with Gilmore or any path forward. Instead, he does a second thing. He attacks Gilmore's performance and emphasizes the importance of being at work. Saying, I understand your mother's dealing with an illness, but when my daughter had cancer, I still showed up for work. Because it's in those times that we still need to show up and do our best work, because there are people here that are counting on us. Knowing that just a few days prior, Ms. Gilmore was approved for leave under the FMLA. He then tells Gilmore, you have no friends here at Nexstar. And asks her to create a list of things that could be improved at Nexstar. I understand that the court may look at this and look at the case Ames v. Nationwide to say, well, if she didn't fill up the list, that might prevent a claim for constructive discharge. However, I think there are a couple of important things to note here about that list. First, that list was to address general complaints and was never going to address Becker and Gilmore's relationship at Nexstar. Number two, the people in charge of implementing the changes that would be recommended or requested by Ms. Gilmore, was Mr. Pruitt and Ms. Becker, who are exchanging text messages and conversing about wanting Jessica Gilmore to resign. And the court, in its opinion, expressly declined to consider the inferences that result from that text message, which I think is the clear error. Because I'd point this court to Sanders v. Lee County School District No. 1, where this court says if an employee quits because she reasonably believes that there is no opportunity or chance for fair treatment, that there has been a constructive discharge. Counsel, what was the reasonable belief for Gilmore to have when she didn't submit a list of things that could be fixed? I think the reasonable belief comes from the fact that the people, again, the people who are in charge of implementing the changes on that list are the same people who just a couple of days ago were saying, we want her out, we want her to resign. Some people that approved FMLA leave, too, right? They are the same people. Well, no, the people who approved the FMLA leave was a third party, UNUM, who actually approved the FMLA leave. Now, at the time that she was approved, they didn't fire her, they didn't demote her or anything like that. But I think this still falls under the retaliation under the FMLA due to the temporal proximity between the two. She files for FMLA, is approved for FMLA. One day later, she's told her bosses want her to resign. And I think that's where the reasonable opportunity, the reasonable belief that there is no chance for fair treatment comes into play here. And I think that's very important language from the Sanders case. But by ignoring the text message, which the court said it will not do because it was accidentally sent and therefore cannot be relied upon as an intentional act of the employer, I think ignores a couple of inferences because the content of the text message was not accidental. The intent of the text message was not accidental. The only thing accidental about that text message was the recipient, Jessica Gilmore. Ms. Becker still wanted Jessica Gilmore to quit. Ms. Gilmore was still intending to communicate that wish to Chris Pruitt. And also, the text message evidences that the behavior in the meeting between Ms. Becker and Ms. Gilmore was intended to force Jessica Gilmore to resign. And by failing to consider that text message, the court failed to make the reasonable inferences that Taylor Becker and Chris Pruitt were intending to make Gilmore uncomfortable enough that she would resign, that Becker's meeting with Gilmore was intended to make Gilmore uncomfortable enough to quit. You pair that with the temporal proximity between Jessica Gilmore getting approved for leave under the FMLA and the text message, I think that at the very least creates a genuine issue of material fact that should survive summary judgment in this case. I see I have four minutes, a little more than four minutes. If the court has any further questions, otherwise I'll leave the rest of my time for rebuttal. Ms. Garrido, we'll hear from you. May it please the court, Ms. Gilmore alleges that she suffered the adverse employment action of constructive discharge. However, Ms. Gilmore has not met the high bar that is required to establish constructive discharge. The evidence that Ms. Gilmore relies on to support her claim does not establish an intolerable working environment. Moreover, Ms. Gilmore did not give Nexstar the opportunity to improve the working conditions she claims caused her to quit. Therefore, this court should affirm the entry of summary judgment in Nexstar's favor. Turning to the first point with respect to Nexstar not creating an intolerable working environment, the evidence that she relies on doesn't establish that. As opposing counsel noted, Nexstar did approve her request for FMLA leave and granted that request. On August 20th is when the leave was approved. Mr. Groves relies on a meeting that Ms. Becker had before she met with Ms. Gilmore the next day on August 21st. That meeting was unrelated to what she was going to discuss with Ms. Gilmore the next day. Those notes are not an agenda of what her discussion was going to be. Ms. Becker's discussion with Ms. Gilmore on August 21st was limited to confronting her about whether or not she was looking for a new job while working for Nexstar. Are those facts in dispute that you just described? No, Your Honor. Those facts are not in dispute with respect to the fact that Ms. Becker met with Ms. Gilmore to confront her about whether she was looking for work. And Mr. Groves admits that Ms. Becker lied during that meeting. She did, in fact, lie and tell Ms. Becker that she wasn't looking for work, but she was, in fact, looking for work. That's on the Joint Appendix, page 73, where Ms. Gilmore admits that she lied to Ms. Becker. That meeting was solely limited to just confronting her about her looking for work. After the meeting, Ms. Becker accidentally sent a text message to Ms. Gilmore, which was intended for Mr. Pruitt. But because Ms. Becker didn't intend to send that text message to Ms. Gilmore, it can't be used as evidence to show that she sent that with the intent of trying to create an intolerable working environment. And immediately after sending that text message, Ms. Becker went to Ms. Gilmore to apologize to her and told her she's sorry that she made her feel that way. And so that shows that Nexstar took steps to ameliorate the situation that Ms. Becker caused. And so going back to just whether the text message itself creates an intolerable working environment, Mr. Groves admits that it doesn't. In his argument and on pages 4 and 16 of his brief, that the text itself doesn't create an intolerable working environment. Also, the text message that was sent was related to her lie that she wasn't looking for work. The text message doesn't reference FMLA leave, so the only reasonable inference that could be drawn from sending that text message is that it was limited to her lie about not looking for work, which is what the text message said. And as I said, they admit that the text message itself doesn't create an intolerable working environment. The other evidence that they rely on with respect to an intolerable working environment are the statements that Mr. Pruitt said. However, those statements are incomplete. While Mr. Pruitt was trying to sympathize with Ms. Gilmore by saying that when he had cancer and when his daughter had cancer, he still understood there were responsibilities and he had to go to work. But that was his attempt to empathize and sympathize with her. And to the extent they're considered insensitive, that is insufficient to establish an intolerable working environment. It's an objective standard, and objectively, it's clear that Mr. Pruitt was trying to sympathize with her. And importantly, the last thing that Mr. Pruitt asked her at that meeting was to create a list of ways that would improve the working environment that she claims was causing her to quit. And as Your Honor, Judge Smith noted, she never submitted that list to Mr. Pruitt. Why wouldn't the evaluation of these statements be something properly for a jury? Your Honor, because it's an objective standard and the district court was applying the law. And the law states that insensitive comments are insufficient to establish an intolerable working environment. And importantly, too, when you're analyzing whether an intolerable working environment has been established, you also need to look at what the company did to ameliorate any impact that the comments or statements or acts had. And here there are multiple items that Nexstar did to ameliorate what they did. Starting with Ms. Becker apologizing. After she sent that text message, she went to Ms. Gilmore to apologize to her. Ms. Wonker also texted and called Ms. Becker the next day on August 22nd and apologized as well. And offered to let her work remotely in case she didn't want to interact with Ms. Becker. But Ms. Gilmore declined that invitation and elected to continue going to work. And Your Honors, the other amelioration was Mr. Pruitt meeting with Ms. Gilmore. During that meeting, he explicitly asked her for a list of ways to improve the working environment and she declined to provide that. And so Your Honors, she has failed to establish an intolerable working environment. Especially because Nexstar did take actions to try to maintain that working relationship with Ms. Gilmore. But Your Honors, even if you did think that she established an intolerable working environment, which Nexstar denies, Ms. Gilmore still had to provide Nexstar the opportunity to improve these working conditions. And she hasn't done that. Ms. Gilmore was required to provide a reasonable... I'm sorry. Part of Ms. Gilmore's obligation is to be reasonable and not to assume the worst and not to jump to conclusions. And that's exactly what Ms. Gilmore did here. Ms. Gilmore didn't even provide the list. In that list, she could have stated things that she wanted done for the environment, but she didn't do so. And Your Honor asked about the timing of the text message to when she then quit. So the text message was sent on August 21st and she had that conversation with Ms. Walker on August 22nd. The phone call with Ms. Walker on August 22nd, Ms. Gilmore did. And Ms. Gilmore did reach out to Mr. Pruitt, but he was out on vacation, so he would have met with her earlier. But nonetheless, the meeting occurred on August 26th, which is the date that Ms. Gilmore elected. And so Ms. Gilmore then went and took FMLA leave because she knew she was on approved FMLA leave. And it's undisputed that no one discouraged Ms. Gilmore for taking an FMLA leave, and she knew that she could take that leave. So she took a few days from the 27th to September 1st for FMLA leave, and then on September 2nd, resigned. So before her resignation, she never submitted the list that Mr. Pruitt asked her to submit. And Your Honors, it should be noted that Ms. Gilmore never called the ethics line. That's undisputed, that she never complained to the ethics line about intolerable working conditions or how she felt that the meetings went with Mr. Pruitt or Ms. Becker or Ms. Walker. So Your Honors, I would just like to point that NXSTAR did grant Ms. Gilmore her request for FMLA leave. No one at NXSTAR discouraged her from taking FMLA leave. It's a very high bar to establish constructive discharge. Objectively, the facts do not support that NXSTAR created an intolerable working environment. Mr. Groves admits that the text message itself does not create an intolerable working environment. The evidence that he relies on notes from a separate meeting and a meeting between Ms. Becker and Ms. Gilmore, which was just limited to confronting her about her looking for jobs, and during a meeting where she lied, does not establish an intolerable working environment. The text message was limited to the confrontation and her dishonesty to Ms. Becker about looking for work. And so Your Honor, an intolerable working environment was not established. And NXSTAR, as I mentioned, took steps to ameliorate the situation and took steps to try to retain Ms. Gilmore and improve anything that they did that made her feel uncomfortable, which was evidenced by Ms. Becker's apology, Ms. Walker calling her and apologizing for how the meeting went, and Mr. Pruitt meeting with Ms. Gilmore and asking her to submit a list of ways to improve her working environment. And finally, Your Honor, even if you do find that an intolerable working environment was created, Ms. Gilmore was still required to give her employer a reasonable opportunity to resolve a problem before quitting. Here, Ms. Gilmore did not do that. She never submitted that list of ways to improve the working environment. She could have listed everything that she wanted in that list and see whether or not the company would honor her request, but she never did that. Instead, she quit. And so, Your Honors, for the reasons stated in NXSTAR's brief and our argument today, we ask that the district court's order be affirmed. Thank you. Very well. Thank you for your argument. We'll hear rebuttal. Counsel, if you could take a moment to address the concern about providing a reasonable opportunity for remediation. Of course, Your Honor, and may it please the court, let me address that straight away, because Ms. Garrido raised a number of issues, how there was no reasonable opportunity given. Well, Gilmore, immediately after receiving the text message, Ms. Gilmore went to the HR contact there in Springfield, Tara Walker, to give her an opportunity to address the situation between Jessica Gilmore and Taylor Becker. When she was not pleased with the outcome of that meeting, specifically, Tara Walker allowing Ms. Becker to intrude upon that meeting and not requesting that she leave that meeting, Ms. Gilmore made an appointment with the vice president and general manager of the Springfield branch, Chris Pruitt, gave him a reasonable opportunity to address that situation. Not only did Mr. Pruitt decline to address it, he actually made the situation worse. He criticized her work performance, which had been declining due to absences from taking care of Ms. Gilmore's mother. He told Ms. Gilmore she had no friends at NXSTAR. He emphasized the importance of being at work one day after Ms. Gilmore was approved for leave under the Family Medical Leave Act. Now, I understand that Ms. Garrido pointed out several attempts that NXSTAR made to ameliorate the situation. She pointed to Ms. Becker's apology. She pointed to Tara Walker's allowing Ms. Gilmore to work from home. And she pointed to the meeting with Pruitt. However, none of those are actual opportunities or attempts to ameliorate the situation, and here's why. Ms. Becker's apology was not, I'm sorry I made you feel that way. As she testified, it was, I'm sorry that you received that text. She never apologized and said she didn't mean what she put in the text. She never said, I don't want you to quit. What she said was, I'm sorry that you received that text. That is not an apology. That is simply, you got caught in, you caught me in saying that I want you to quit, and therefore cannot be considered an attempt to ameliorate the situation. Ms. Walker allowing Jessica Gilmore to work from home also cannot be an attempt to ameliorate the situation. First of all, that was a temporary solution only until Mr. Pruitt came back from vacation and was able to meet with Ms. Walker. If you'll look back in the meeting notes from the meeting between Ms. Becker and Human Resources, it explicitly says work from home is not an option. This was not a permanent solution. Further, even though Tara Walker told Ms. Becker do not contact Jessica Gilmore because of the situation between the two, Ms. Becker contacted Jessica Gilmore that day. I believe the record shows that it's just asking about an account at work, but it goes to show that Ms. Becker was not willing to honor any instruction from Human Resources regarding her behavior around Ms. Becker, and she was willing to violate express instruction from Human Resources in contacting Ms. Becker. Lastly, Ms. Garrido says that the meeting between Mr. Pruitt and Ms. Gilmore was an attempt to ameliorate the situation. Mr. Pruitt expressly declined to address that situation and instead turned it into a performance review and emphasizing the importance of being at work. Ms. Gilmore did not jump to conclusions here, but gave Nexstar every reasonable opportunity to address the situation, and it failed at each step. If Ms. Gilmore gave every reasonable opportunity, why didn't she submit a list? And, Judge, I'll acknowledge that I believe that that is the weakest point in our case. However, as this Court said in Sanders, that when the employee has a reasonable belief that there is no chance for fair treatment, in this case, Ms. Gilmore is submitting a list to be implemented by the very same people who are wanting her to resign. I think at the very least, and I see my time has expired, if I may finish my thought real quick. Quick, real quick. Okay, thank you. I think at the very least, all of this creates a genuine issue of material fact that is much more properly resolved in front of a jury, and I would ask that this Court remand this for a jury trial. Thank you, Your Honor. Very well. Thank you for your argument. Thank you to both counsel. The case is submitted, and the Court will file a decision in due course. Counsel are excused."
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