Preparing 2 Cases Brief

Preparing a Student Brief

1. A brief is a summarized version of one of the cases that is presented in the textbook. 2. You read the case and then structure the brief by restating the case material using a 4-step approach:

o Facts – This is a brief story that explains factually what happened. o Issue – This is the legal question that the reviewing court must decide. o Holding – This answers the question “yes” or “no” and then explains what further instructions that

the reviewing court orders – reversed, afflrmed, remanded, vacated, dismissed, etc. . Legal reasons – these are the legal reasons elicited in the excerpted case in the textbook that justify

(explain) why the court decided as it did. These reasons represent the state of the law, over which the reviewing court has authority, regarding the particular legal principle as applied to the particular facts ofthe case.

Example of an Excerpted Case in the Text Book

N,+moxwrDE INsURANCE Co. v DARDEN 112 S.Ct. L3M (t992)

Darden worked as an agent for Nationwide Insurance Company Pursuant to a con- tract which stated, among ottrer terrns, that Darden would sell only Nationwide poli- cies and that he would forfeit his entitlement to retirement plan benefits if he sold insurance for Nationwide’s competitors within one year of his termination and 25 miles of his previous business location. After his termination, he began working for one of those competitors, and Nationwide determined that he was therefore dis- qualified from receiving his retirement benefits. Da;den sued under the Employee Retirement Income SecurityAct (ERISA)- The district court granted summary judg- ment to Nationwide as..Darden was not an employee and therefore not a proPer ERISA plaintitr The court of appeals reversed the lower court’s ruling, and the Supreme Court evaluated which definition of employee was most appropriate for an ERISA claim.

Souter, J.

We have often been asked to construe the mean- ing of “employee” where t}le statute containing the term does not helpfully define it. Most re- cently we confronted this problem in Communiry for Creative Non Volence u Reid, a case in which a sculptor and a nonprofit group each claimed copyrigfrt ownership in a statue the group had com:nissioned from the artist. The dispute ulti- mately turned on whether, by the terms of the Copyright Act, the statue had been “prepared by an employee within the scope of his or her em- ployment.” Because the Copyright Act nowhere defined the terrn “employee,” we unanimously ap- plied the’\rirell established” principle that, “where Congress’uses terrns that have accumulated set- tled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress rneans to incorporate the established rflesnrsg of those terfl]s. in the oast” v;hen Con- g::ess has used term ‘er::plove3′,f itll,rur,iefin- ing ::. vre ha’;e c*ncludeC ihai Cllgi:ss i:lt33ded :c, descibe ile con’/entjcnal =asier–.er,’:.1! rela- ii.,, l:r ;nCei;iro,i rj’ t:; l:rl :1,;

“” j.:-,1″1’ilill.”

So, too, it should stand here. ERISA s nomi- nal definition of “employee” as “any individual employed by an employer” is completely circular and explains nothing – . . Thus, we adopt a com- mon law test for determining who qualifies as an “employee” under ERISA. Since the common law test contains no shorthand forrnula or magic phrase that can be applied to find the answer, all of the incidents of ttre relationship must be assessed and weighed with no one factor being decisive.

To be sure, the traditional agency law criteria offer no paradigm for determinacy. But their ap- plication generally tums on factual variables within an employer’s knowledge, fhus permitting categorical judgments about the “employee” sta- tus of claimants with similar job descriptions. REYERSED A}ID REIV{ANDED.



Example of a Student Brief of the Nationwide Case

Facts: Darden was employed as an insurance agent for Nationwide. When he began his employment, he signed a non-compete agreement that specified that, in the event of his termination from Nationwide, he could not sell insurance for a competitor (another insurance company) for one year within 25 miles of his previous Nationwide office. He was terminated and did precisely this, which made him in violation of the non-compete agreement” he signed. Because of this, Nationwide decided that he was not an employee of Nationwide and therefore not eligible for an ERISA pension benefit. . Darden sued Nationwide, claiming that he was an employee of Nationwide and therefore entitled to Nationwide’s pension. After discovery was completed, the trial court judge granted defendant Nationwide’s motion for summary judgment and dismissed the case. Darden appealed the trial court’s legal ruling to the intermediate court of appeals, which reversed the trial court’s decision. Nationwide appealed to the U.S. Supreme Court on the question of what was the proper definition of an eligible “employee” for an ERISA pension and whether Darden qualified as an eligible “employee”.

Issue: Whether the definition of an employee for an ERISA pension benefit, when the statute does not define the word employee but simply uses the word, must be determined by the cofilmon law definition of that word?

Holdine: Yes. reversed and remanded.

Lesal Reasons: When Congress enacted ERISA, it did not define employee eligibility for an ERISA pension benefit by defining what the term “employee” meant. Therefore, the courts must infer, that Congress meant to incorporate the established common law definition of an employee. During discovery the parties applied this analysis to Darden’s role as an agent and concluded that he was not an employee, but probably an independent contractor, although the decision does not specifically state this. Furthefinore, he lost his employee status when he violated the non-compete agreement. Therefore, the trial court judge was legally correct when helshe granted the defendant’s motion for summary judgment. The Appellate Court’s decision is reversed and remanded.

What This Example Means for Your Brief 1. Note how the facts in the brief incorporate all of the information in the excerpted case and place them into a

chronoiogical story that explains what has happened. Note how the issue in the brief is a question that can only be answered “ygg” or “gg”. Typicaliy the issue is structured as follows: Whether (the actions of the plaintiff employee) which resulted in (the actions of the defendant employer) which caused adverse consequences to the plaintiff employee, violated a particular statute? Note how the holding in the brief is always “yg!” or “Ilg”, followed by some specific action that the reviewing court orders: affirmed, reversed, remanded, vacated, dismissed, etc. Note how the 1egal reasons in the brief explain the legal principles that govern the reviewing court’s decision. The court, usually with great precision, explains what the state of the law is regarding the application of the statutory or common to the facts of the case. As a student, this is how you learn the law in this course – by analyzing actual cas es.

What the Abbreviated Terms After the Case Name Means

The first number “I)”2” means the volume number of the book r,vhere the case is. The abbreviated letiers “S.Ct.” means ihe particular court that the case $,as heaid in. and the court l.;liiin,, tne ,+lrlI r)a,rl:,f:

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Username: Ali AlnasirBook Employment Law for Business, 7th Edition. No part of any book may be reproduced or transmitted in any form by any means without the publishe/s prior written permission. Use (other than pursuant to the quatified fair use privilege) in violation of the law or these Terms of Service is prohibited. Violators will be prosecuted to the

*4′, Fa*’$ne-” The’&tgukitia*’n;,ttte; tuWtuiy\ey! Rela@


23,-45?’tJ.S.44t}{19S?)., ::: ” : ::’:r:i:: ‘: : M. Pottard v. E.L du Pont de Nemours & Co.,532 U.S. S43 (2001). 25. Hofunn Ptasric Compounds, Inc. v. NLRB.535 U.S. 137 (IWZ). 26. We do not suggest the covenant of good faitr ad fair dealing ha.s no function what- ”..,.eli,g4,t1n theit1er*rytation.,aa*.euforceli,ient-of’e nrenr go .,A*rindieated

above, the covena[t preve$ts a party from acting in bad faift to frustrate the contract’s actualknefi*. Thus, for example, tfte corrcnant might be violated if termination of an

‘ r:..4t-sri.ll cnqpltiyee *6:6 6ssrF prsbit to skBt,tk! :worker’ olrt Of ,auother mn*xtrbes- ,,.’, .6fiitrr-lwhrehthdeurploy,qq war clq4rly entitled, su& ryeosoti!ff *treadf.gArhqf

We confiont no such claim here,

E63g.f :;,:.’r,faJrr*eer’v. |*te *aal.Eawteter’,Company,::i &4.:… ::r: ::’.,”;,;’;’:;,, gs3e2., –,,:f{“id}ei: l. Snit&:’of ilabdarra,$apsirwe$t alFarcasic Sciepget 85

{t*a {‘r, ‘: WeDon*tt Dougtas Corp. v. Grcen gI (as+ 5 Wilson u- Southwest Airlines Company 92 Care 6 Griggs v. Dake Po*,er Co. 94

ffi Palmateer v. lnternational Harvester Companyiffi 85 ilt.2d 124,421 N.E.Zd 576 (1951) Ray Palmateer had worked for lnternalional Harvester (I]t) for 16 years r* the time of hi* dircharge. Palmateer sued IH for retali*tory discharge, claiming tlat he was &nninated because he supplied infor- mation ts local law enforcement authorities reg*rding * co-‘xorker’s criminal activities and for offering to a.ssist in the investigaticn and rial of the co-worker if necessary. The court agreed and found in favor of Palmateer.

Simon, f.

[The court discusses the history of &e tort of retaliatory discharge in lllinois and explains that ttre law will not support the termination of an at-will employment rela* tionship where the termination woukl contravene public policy.I Sut the Achilles heel of the pnnciple lirs in the definition of public policy. When a discharge coatravene,s public potcy in aoy way, the employer has committed a legal wroag. However, the employer retains the right to fue workers ai-will in ca”ses “where nc clear mandate of public policy is involved.*

There is no precise definition of th€ term. ln gen- eral, it can be said that public policy concerus what is right andjust and what affects the citizens ofthe State collectively. It is to be fouod in the State’e constitution and statutes and, when they are silert. in its judicial decisions. Although there is no preciso line of demar- cation dividing matters that srs the subject o{ puhlic policies from &atters purely personal, a survey of cases in othcr States involving retaliatory discharge shows that a matter mu$t $trike at lhe heart of a citizen’s



Username: Ali AlnasirBook Emptoyment Law for Business, 7th Edition. No part of any book may be reproduced or transmitted in any form by any means without the publishe/s prior written permission. Use {other than pursuant to the qualified fair use privilege) in violation of the law or these Terms of Service is prohibited. Violators will be prosecuted to the

Chapter Twc The EmploymentlawToolbit: Resourcesfo4Sffi,Sqqry,B6e*{*@rteffi.W ,W lzgalConcepts 85

social rights, duties, and responsibilities before the to$ crimiaal offenses. Palmateer has stated a cause of action will be allowed. for retaliatory discharge.

It is clear that Palmateer has here alleged that he was fired in violation of an established public policy. There is no public policy more basic, nothing more im- plicit in the concept of ordered libeay thau the en- forcement of a State’s criminal code. There is no public policy more important or more fundamental than the one favoring the effective protection of the lives and property of citizens.

No specific constitutional or statutory provision re- quires a citizen to take an activi part io the ferreting out and the prosecution of crime, but public policy neverthe- less favors citizen crime-fighters. Public policy favors Palmateer’e conduct in volunteering information to the law erforcement agercy. Palmateer was under a statutory duty to further assist officials when reque$ted to do so”

The fouldation of the tort of rstaliatory discharge lies in the protection of public policy, and there is a clear public policy favoring investigation and prosecution of



CaEe Questions I* there a difference between the court’s protection of an employee who reports a rape by a co-worker or &e theft of a c&r, and an employee who is con- rtantly reporting the theft of the company’s paper clips aud pens?

Should the latter cmployee in the above question be protected? Consider that the court in Palmateer re* marked that “the magnitude of the crime is not the issue here” It was the Goneral ,A,ssembly who ile- cided that the theft of a $2 screwdriver was a prob- lem that should be resolved by resort to the criminal justice system.”

What are sther areas of public policy that might offer protection to terminat€d workers?


Herawi v. State of Alabama, Department of Forensic Sciences 311 F. Supp. 2d 1ii5 (M.D.Ala. 2004)

Herawi is an kanian doctor whose employmcnt was terminated” She filed a complaint against the defen- dant, the state Departnent of Forensic Sciences, alleging national origin discrimination and retaliaticn. The state responded that it had legitimate non-discriminatory rermons for temrinating her (insubordina- tion and poor job performance). The districi court found fhat Herawi’s national origin discrimination claim would tot be dismissed on summary judgment because her supervisor’s threat th*t she would re- port the doctor’s national origin to law enforcemeat made clear that her supervisor wa$ a*tagonistic to- wards her because of her Iranian heritage, and that the timing of the doctor’s termination {three weeks after complaining about the supervisor’s behavior) suggesied that the supervisor’s apparent dislike for her national origin may have iafected the process of evaluating the doctor. Herawi also prevailed against nmmary judgment on the retaliaCIry discharge claim. (Herawi aleo claimed hostile envirmmeqt but did not succeed and the discussion of that claim is not included below”)

OPINION 8Y: Myron H. Thompson, r. ,FlF *

lf. Fartu*l Background

During the relwant time period, Hcrawi’s supervisor in the Montgcmery office [of the Alabama Department of Foreasic Sciences] was Dr. Emily Ward. Herawi, like all state employees, was a probationary employee for her first six months on the job.

Ward was highly critical of Herawi almsst immedi- ately upon her arrival in the Montgomery office. On her first day ai work, Ward accused Herawi of being incon- siderate for not offering to help her. Ward looked at Herawi with a “hatred filled stare” and mocked her by repeating her in a high-pitched voice. On or about Octo- ber 22,2001, Ward became enraged at Herawi, sbauted



Username: Ali AlnasirBook Employment Law for Business, 7th Edition. No part of any book may be reproduced or transmitted in any forn by any means without the publishe/s prior written permission. Use {other than pursuant to the qualified fair use privilege) in violation of the law or these Terms of Service is prohibited. Violators will be prosecuted to the

86 Part One The Regulatian o{the Employment R.elationship

al her, accused her of wrongdoing” and said she had had enough of Herawi and that Herawi was the rudest person she had ever met.

.When }lerawi tried to explain her ac-

tions, Ward ydled louder and said that she did not like Herawi and that no one else liked her either.

On October 24, Herawi exptessed to Craig Bailey, *rc ofEce director, her concerns about the way Ward was treating her. Bailey later told Herawi ihat, after his con- versatiou with her, he spoke to $Fard to find out if she had a problem with people of Middle Eastern descent. Bailey told Herawi that people from the Middle East were perceived as rude and aggressive.

On November 7, Ward “implied” io Herarri that she was getting calls from people asking about Herawi’s background and her accent, and she threatened to expose Herawi’s nationality to law enforcement ageucies. Ward also said that she was getting calls from people asking who Herawi was, asking why she was there, and stathg that sLe did not belong there.

Herawi had two more rcn-ins withWard in December 2001, after Herawi had taken tirne offin November to visit her mother in California after the death of her father. Oa December 6, $fard called Herawi into her omc€, where Bailey yelled at Herawi, accusing her of neglect- ing the afEce after her father died and not performing enongh autopsies. Bailey also questioned Herawi abaut whether shs was looking for a jo6 i* California. On or aboul December 25. Herawi ccnfronted Ward about whether lVard had spread a rrrmor that Herawi was look- ing for a job in Califomia. [The court outlines additional, subsequent circumstances, which it discusses later in this 6prnion-]

On January 2,2ffJ.2, Herewi received aa “employee probationary performance appraisaf’ and an attached narrative perforrnance appraisal, dated November 15, 2001. ?he narrative perfcrmance appraisal states that Herawi ‘”appears tc be a very intelligent and dedicated Forensic Pathologist” and that she “seenr.s to have been well trained.” The narrativc appraisal, however, gaes on to state that’lher performance has been problematic in fuur i*ter-related areas: expectations of co-workers, rec- ognition of and subordination to authority, incessant in- quisitiveness, and lack oforganizatian.” It also statss that Herawi’ocomes across as very self-centaed and pmjects an ‘entitlement complex”‘; that she “has also refused to comply with deparrrnental regulations andlor ruies if she doesn’t agree with them”; and fhat her *work habits leave room for improvement.” The narrative was signed by Ward and Downs, [J.C. Upshaw Downs, the Director nf

tle Alabama Deparonent of Forensic Sciences and the Chief Medical Examiner forAlabarna, and others.l

Herawi brought her concems aboutlVard to Dowus on January 4, 2002. Herawi told Downs thatWard had tlreat- ened to exllose her nationality; Herawi also told Downs that she felt confused and intimidated- Downs aoldHerawi that Middle Ea$tffnpeople were generally facing troubles in the wake of the terrorist attacks on Septernber 1 1, 2001 , and that Herawi should turn tlre other cheek. Howeyer, Downs saidhe would spaktoWard.

On January 9,2ffi2, Downs wrote a letter to Thomas Flowers, the state personnel direcior, requesting that Herawi’s probationary period be extended by three months. Downs wrote that Herawi “requires additional training in autopsy procedures to take u olore orgaai;aed approach to the process” and that she “must also }earn to use ilre chain of command.”


lYard alluded to Herawi’s nationa.lity again on March 7,2ffi2 Ward tsld Herawi that uobody liked her, that everybody complained about her, that she did not belong there, that should leave, and that her English was bad. After this incident, Herawi eomplained to Dawus again on M*rch 21, aboutWard’s hostility. At this meet- ing, Downs told Herawi that he wonld start ar investiga- tion, and Herawi told Downs ihat she had contacted a lawyer Herawi also complained to Samuel Mitchell, the deparunent chief of staff, on March 25.

Events came to a head on March 28, at a meeting at- tended by Heraryi, lVard, Bailey and Steve Christian, the department-s pemonnel Manager^ Herawi claims that she was terminated during the meeting and that when she met wi& Christian shortly after the meeting, he told her it wa”s uaofficial pollcy that terminated employees could submit a letter of resignation. Memoranda wriuen by Ward, Bailey aud Christian present slightly different ac- counts. According to lVard, she infomed Herawi that the situatisn was not wcrking out and that the department had not seen ary inprovement in the areas ideutified in Herawi’s perfonnance appraisal. According to Ward, be- fore she could finish, Herawi intemrpted her to say she wsuld quit. According to Bailey \Yard requested Herawi’s resignation, and Herawi agreed. According to Christian, Ward told Herawi that an offer of permanent employrneut would not be forthcoming and &en told Herawi to speak with him later that day. When they meq according to Christian, he told her il was the depa*- ment’$ unofficial pclicy to allow employees to resign to make it easier to Iook for work in &e future.



Username: Ali AlnasirBook Employment Law for Business, 7th Edition- No part of any book may be reproduced or transmitted in any form by any means without the publisher’s prior written permission. Use {other than pursuant to the qualified fair use privilege) in violation of the law or these Terms of Service is prohibited. Violators will be prosecuted to tha

Chapter Two The Employment Law Toolkit: Reso*rces for Understanding tbe lanv and. Recurring lxgal Coneepts 87

Herawi submitted a letter of resignation on April 1, 2002. A Ietter frcm Downs, dated April 18, confirmed Herawi’s “separation from employment” at the depart- ment eff€ctiveApril 19, Downs’s letter states that the rea- son for Herawi’s separation is that she continued ‘to require additional raining in autopsy procedures and failure to properly use the chain of command.”

III. Analysis

Herawi clairns that (l) she was terminared because of her Iranian origin; (2) she was fired in retaliation for her complaints about Ward; and (3) she was harassed be- cause of her national origin [not addressed in this ex- cerptl. The Forensic Department has moved for summary judgment on the ground that its decision not to offer her a permanent position was based on legitimate, non- discriminatory rea$ons. The court will consider Herawi’s claims in order.

A, Termination ***

iv. Apptying McDonnell Dougla;, this court concludes that Herawi has met her prima-facie burden of producing “evidence adequate to crgate an inference that [the Fo- rensic Departrnent’s.l employment decision *as based on an {illegall discriminatory criterion.” To establish a prima-facie case cf discrinainatory discharge, she must show tle following: {1) she is a member of a protected class; (2) she was qualified for the position at i$sue; (3) she was discharged despite her qualification; and (4) some additional evidence that would allow an infer- eace cf discrimination” [The court evaluates Herawi’s evidence of these elements and finds that Herawi satis- fies the first thrs€ elements; it then continues in its *naly- sis of &e fourth requirement, below.]

In &is case, Ward made remarks related to Herawi’s national origin on three occasicns. On November 7, 2ffi1, Ward threatened to report Eera\r{i’s national odgin to law enforcemont agencies. On Ianuary 2, 2002, llrard told Herawi &at she was getting calls asking who Herawi was and why she was working there; \{ard suggested that she \ryas getting thsse call* because of Herawi’s accent. Finally, on March 7,}WZ,Ward told Herawi that no one liked her, that she did not belong at the deparhant, that she should leavg and that her English was bad” It is un- disputed that Watd was Herawi’s direct supervisor when

she made thsse remarks and that Ward had substantial input inlo the ultimate decision to teflninate Herawi. In f*et, Ward conducted Herawi’s January 2002 perfor- mance appraisal, and she wrote the four memoranda in February aad March of 2ffi2 documenting incidents in- volving Herawi. Given this evidence, the court is satis- fied that Herawi has raised &e inference t}at her national origin was a motivating factor in the department’s deci- sion to terminate her.

The burden thus shifls to the Forensic Deparhnent to articulate a legitimate non-discriminatcry reascn fur it”s de’ cision to fire t{Erarvi. The deparuaent has met &is “sx- ceedingly light’ burden. It asserts that Herawi was not retained because she ‘tad problems with autopsy pgrce- dures and with the chain cf comrnand.- Plainly job perfor- mance, failure to follow ins&rctions, and insubordination are all legitimate, nondiscriminatory considoraticns.

Because the deparfnent has met its burden, Herawi must show that its assertod reasons are pretextual. The courtfinds, again, that the evidence of

.Ward’s comments

aboul Herarryi’s national origin is sufficient for Herawi to meet her burden. Cnmrnents or remarks that suggest dis- criminatory animus can be suf&cient circumstantial evi- dence to establish pretsxt, “‘Whelher commerts standing alone show pretext depends on whether their substance, context, and timing could permit a finding that the com- ments are causally related to the adverse employment action at issue.-

In tbis case, Ward’s comments “might lead a reaso*, able jury to disbelieve [the department’s] proffercd rea- son for firing” Herawi. Wbrd’s threat that she. would report Herawi’s nationaliry to law enforcement makss it clear that she was antagonistic towards Herawi because of Herawi’s Iranian origin” lVard’s latet comment that Herawi did rot klong in the departrnent, made at the same time she commented on Herawi’s irccento further evinced discriminatory animus. Standing alone, this might not be enough evidence to establish a genuine question of pretext, but lllard was Herawi’s supervisor, eonducted her performance appraisal, and wrote four msmcranda containing regative evalrations of her” ln this context, the evidenco $uggests that Ward’s eyident dislike for Herarvi’s natioflal origin may have infected the process of evaluating Herawi. The timing of Ward’s remarks reinforces this conclusion. The first incidEnt in which Ward referred to Herawi’s nationality occurred one week before fhe narrative performance appraisal of Herawi was written, the second incident oceurred on the srme day-Janmry 2,ZffiZ*-shat Ward c*mpleted the



Username: Ali AlnasirBook: Employment Law for Business, 7th Edition. No part of any book may be reproduced or transmitted in any form by any means without the publishe/s prior written permission- Use (other than pursuant to the qualified fair use privilege) in violation of the law or these Terms of Service is prohibited. Violators will be prosecuted to the

88 Part One The Regulation af tke Employment Relatianship

performance appraisal form, and her finai remarks were made three weeks befare Herawi was fired” Because of this close temporal proximity, a jury could reasonably conclude that discriminarory attitude evidence in’!Yard’s remarks motivated &e decision tc fire Herawi. Accord- ingly, the court find$ that Herawi has met hsr burden ard that summary judgrnent on her termination claim is aot appropriate.

B. Retaliation Herawi contends that the Forensic Department retali ated against her for complaining to Downs and to Mitchell about Ward’s corduct. The department has msved for summary judgment, again, on the basis that its employment decision was motivated by legitimate, non-discriminatory rea$ons.

Under Title VII, it is an unlawful employment prac- tice for an employer to discriminate against an employee “b€cau$e ls]he has opposed any practice made an unlaw- ful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or partici- pated in any maffrer in an investigation, proceeding, or hearing under this subchapter.” The same McDonnell Douglas burden-shifting framework that applies to claims of diseriminatory discharge applies to claims for retaliation.

The Eleventh Circuit has established hroad standards for aprima-facie cass of retaliaticn. An individuat alleg- ing retaliation under Title YII must establish het prima- facie ca;e by demonstrating “(1) that she engaged in statutorily protectrd activlty, t2) that an adverse employ- msnt action occurred, and (3) that the adverse action was causally related to [her] protected activities.”‘ “The causal Iink element is construed broadly so that a plain- tiff merely has to prove that the protected activity and the negative employment action are rrot completely unrelated.”

Herawi has established the elements af. aprimo-facie case of retaliation. First, she was engaged in prote.cted activity on the two occasions that she spoke with Downs and on the one occasion she spoke to Mitchell. Second, Herawi wa.s terminated, Thkd, Herawi satisfies the cau- sality requirement because she was terminated o*ly a week after her meeting rrvith

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