proceed me please the court my name is patricia kramer and i represent the appellate appellant to gerry hewitt i believe my client said it best when she said that a woman's breasts should not be a prerequisite for selling propane or in a courtroom assets and also as to her gender and age discrimination claims and i think that the court just disregarded that evidence or ignored the evidence  the only the only evidence that america asked submitted for a legitimate reasons for terminations was a mixed one paragraph e mail that didn't even discuss the reasons for termination but had was terminated five days after reporting her fifth incident of sexual harassment or hostile gender based statements they were expressed statements they were directed to her they were directed to her ability to to work in a man's field in the propane industry they were directed to her by three individuals in the company she only reported one of them though didn't you notice or she did not she report i'm using the term report in the more formal way where one is reporting something to an employer reporting a particular event for the purpose of some kind of disciplinary they are corrective action being taken and of the five i think the first one with the mold on was and then and in a way gender based he was just yelling at her for using as his phone that's the you have the issues with king and where he's getting a little touchy feely at the ranch and she tells him she's a little uncomfortable and there's never a problem there you have the bathroom pan ups but as it turns out they have another bathroom that all the women are using and that seem to be a severe or pervasive circumstance and the one the one thing that is formally reported by or seems to be pretty quickly and appropriately addressed respectfully i  completely disagree with that that is the position that judge burrell took in the district court but that is not the evidence she even aren't those the incidents so the do not accurately describe the incidents they do not accurately describe the underlying evidence that needs to go to the jury your honor in september october and november ms hewitt reported four separate incidences involving mr moulton to rescue and who with her supervisor at that time they were express he made the decision to terminate ms hewitt he was not her supervisor and her supervisors were not involved in that decision and there's no evidence in any way shape or form that they were even consulted about her work her background or or her sales in fact supervisors assured her when she reported the subsequent issue when after she was transferred to jackson that she would not be terminated because her sales were so high mr hewitt with respect to the terminations was a commission according to the summary judgment motion it was paul elkins but that didn't come out until summary judgment we had set depositions in february to take the depositions we were prepared to move forward on that and the depositions were canceled because of opposing counsel staycation schedule not because of anything this hewitt did or because of my own lack of preparedness at that time that's a separate question as to whether it was proper to deny the request to reopen discovery i agree but the point is that we are with terminations first and if it was in fact an expense reduction then why was a commission sales person eliminated and offered a position back as the sales person would have the same cost to the club to the employer of benefits there she was only allowed to come back to work if she waived her claims of discrimination against america and she was offered a subordinate position at less pay in the office where there was a sales position oh thing she was working in an office in jackson an ammeter counties on territory no one else was working and she was a she was doing a very good sales brisk sales business in areas that there were no men working she was working commercial sales and she was the only person who was qualified to install underground tanks and she was exceeding the sales in residential sales for the two men that were retained by american ask as well as  in terms of their sales and mr maltin was paid for her stills after she left the company so the standard is whether or not the standard that this court has put forward is whether or not we can show that you've raised that i'll address that directly you cannot just say one individual is responsible i was in trial and i was in a jury trial and second to supreme court and you cannot say that one person is responsible for not completing discovery during  a very tight timeline when the other individual also is not available and there were there were circumstances on both sides that were unanticipated the length of trial was unanticipated there was a death in someone's family but the third extend professional courtesy and and it came back on your honor i did not accurately i believed we would complete discovery within the timelines and i was trying to stay within the trial date and within the within the settlement conference date in fact i even obtained a stipulation from opposing counsel that we could extend one additional time to get these depositions taken care of that still would not have disturbed either the trial date or the settlement conference date but the court would not hear of my motion under six sixteen and under rule fifty six heard it under deemed it under fifty six the same date as the summary judgment was heard and no oral argument was permitted so i firmly believe i'm convinced that if we had been allowed to complete those depositions in february we would have had more than sufficient evidence to defeat a summary judgment but even without those depositions we believe that there are the reasons stated for terminations just do not hold up your honor and just briefly with respect to a hostile work environment there is nothing more hostile for a woman to them to walk into an office to work with men who tell her that she's not welcome because she's a woman that she cannot attend training because she's a woman that she cannot work in the territory or even use a telephone because she's a woman when those exact same stevens and nothing was said to mr morton she instead was transferred and she and she took it in stride and she sucked it up and went down to another office commuting two hours a day and built a new territory and then when she and instance that involved physical contact with temping and mr zimmerman's very disrespectful statement about her which she overheard it was not she overheard and wouldn't have known he had said that if she had over whether the trial court abused its discretion in failing to allow the player to reopen discovery a second time the second issue is the terminations issue and whether there was any evidence that that was discriminatory based on age  at page four thirty five the question is question he was a non manager right answer may have been considered a service manager but he was not a direct manager question he didn't have any at the trial the trial scheduling order that was in april of two thousand and three that discovery completion of discovery means that all discovery must be complete that requesting an extension doesn't mean you get the extension that the court was serious about its deadlines and that you needed court approval to change it trial courts are given and must be given great flexibility in wanting their courtrooms  deadlines setting deadlines and making sure that counsel lives up to them and the law is clear that the court is in fact given this discretion and the standard is the same under either rule fifty six f or under rule sixteen the trial  you heard counsel suggest that it was her generosity and accommodating someone's vacation schedule that consumes a large part of this time which and that i think is not accurate on the record the  time of defense counsel was the last two weeks of february and because of that vacation time the discovery was extended the second time till the end of april so yes there was a vacation because of that vacation a seventy five week extension of the discovery kept deadline was given so that they patient had nothing to do with why the plaintiff didn't do any discovery in two thousand and three why she waited the last day to do it but even then she got an extra five weeks because of that two week vacation so that's not the reason she didn't complete discovery by the second deadline secondly there was a suggestion that this promise was nice death had something to do with the delay it clearly didn't that death occurred at the very beginning of march on this promise i was out for eight days the first to the eighth of march because of that death but the plan is cancelled was also out during that same time frame and remember on before the niece and even died with step to occur at the end of march and when the trial judge originally agreed to give that five week extension he was told only that the plaintiffs counsel was that for a one week trial by the right in the original extension and only granting it's a five weeks because that's what he was asked for and that's what he gave so the parties agreed to that extension on the thirteenth of february and the doctors as i said w for the end of march nothing to do with the fact that the depositions didn't take place at the end of march that was due entirely to plaintiff's counsel schedule and also to the fact that she waited until the last minute to do any discovery in the first place it discovering would be done in two thousand and three like the judge instructed the parties to make sure you complete these work on time you don't wait till the last minute because issues do arise and so the discovery should have been done throughout two thousand and three and not waiting till the end so that's the first issue did the plaintiff exercise reasonable diligence to conduct the discovery in a timely manner and i think that the trial court was correct in concluding that she did not and there's no abuse of discretion that the second issue is even if she'd been allowed to do the discovery would it have revealed any evidence that would have defeated summary judgment and again the trial court concluded correctly i think that there was no evidence that she would have discovered that would've changed the summary judgment ruling she lists on page fourteen to sixteen of  three things that she thinks she would have learned if she had done these depositions but none of those would have impacted summary judgment for example she says i would have learned whether multi mr moulton was qualified in the same areas that she was but that had nothing to do with  judgment she would have learned when her supervisors learned of the decision to terminate but that had nothing to do with summary judgment supervisors were not the direct people who made the decision and by the way she indicates that she didn't realize that mr elkins was the decision maker on the terminations until too late she knew that from the initial disclosures the initial disclosures as the district court requires make you list who your witnesses are and what they know and the very first witness on defendant's initial or scheduled mr elkins his deposition even though she knew from almost a year earlier that he was the decision maker on the time and anything she wanted to learn about complaints that were made in two thousand and one but that relates to the retaliation complaint which the trial court dismissed without prejudice so nothing would have helped her there on the summary judgment on the discrimination claim she wanted to learn of about the transfer to jackson but again that has nothing to do with discrimination only the retaliation she wanted to learn about as to the discipline of mr zimmerman but again that wouldn't help to run the summary judgment motion we all know that she did report it we all know that he was disciplined that he gave her an oral apology and that something was put in his file about that so there was nothing that she could have learned in the discovery that would have helped her on that issue she would have she says she would have learned about the prior incidence of sex harassment in jackson but that wouldn't have helped her because that was before she got there and nothing that she witnessed and then finally she said she would have learned about more about the comments by mr zimmerman but again that's irrelevant we already knew what the comments well we accepted her testimony as true so in conclusion she should have started discovery earlier not waited till the last minute she should not have agreed to a deadline that she couldn't meet if she couldn't meet these deadlines that she was so overwhelmed with all this work she should have brought in co counsel on the court to extend its deadlines so she has to show that there was an inference of discrimination from the evidence that she produced that showed that the reason that america ask a for terminating her employment was not the true reason so what are the undisputed facts one position out of three went away undisputed she had the least propane sales experience under spirited she had the least seniority under spewed one person who was retained was older than her there were no age comments she was over forty when she was hired and she was offered an alternate position all of those are undisputed and all of those create an explanation for why the defendant did what she did so what is her evidence as to why this is there is discrimination whe because of age she claims that america shouldn't have had a layoff or if it had a layoff it shouldn't have had laid her off because she was a good person but again the courts entirely clear we don't second guess business decisions company can make a decision it can be even wrong in it it i don't want you using my phone i'll put a lock on it clearly a general neutral statement he took the lead off her desk not conduct a sexual nature excluded from a meeting not conduct of a sexual nature these are and failed to take appropriate action and as soon as she complained on march seventh company conduct an investigation talk to her talk to him and disciplined him clearly company took appropriate action so therefore the trial court's decision on ras should not be overturned last claim is retaliation while court dismissed it without prejudice the standard is abuse of discretion undisputed evidence that the decision to terminate was made on march fourth and she complained on march seventh so the terminations notwithstanding the fact that it came shortly after her complaint could not have been caused by her complaint because it was made before her complaint i just wanted in my couple of minutes to respond to correct one complaint formally obvious to them and the other one is she complained to mr king that she felt uncomfortable when he touched her but she never complained formally except for just that once and then the company took appropriate there's certainly no evidence of age discrimination and i agree that the one comment by mr zimmerman hardly evidence is that america asked that was elkins discriminated against or based on her age i have no other comments and that's the court has any crime or you have some reserve time you i'm going to address each point as it was raised by a lot of us really going to address each point in the order it was raised by council it's not surprising to me that the counsel arguing today is not the counsel who was litigating against me record has the but the individual arguing the point has no personal knowledge of certain of certain matters that i'm going to bring to the court's attention at this time which are in the record which are in the restaurant in two thousand and three i worked the corporate council for american ass and obtained extensive documents so that so as to avoid doing a formal documents production request i received approximately six to eight binders of materials and went through those materials in november actually in september i was diagnosed with a tumor and november instead of that deposition was rearranged two or three times to accommodate her schedule and then when i went to the deposition mr banks showed up who was not the person who schedule i was working with but instead we went ahead and submitted to to the deposition which was cut off mid afternoon without any notice and with an agreement that we would complete ms he would step is issue and that he would provide me with dates in november for the depositions of the principal defense witnesses i did receive initial disclosures indicated a number of people not just mr elkins had been in volved in the decision to terminate i noticed the depositions of her immediate supervisors because they were the individuals who had advised my client that she would not be terminated that her sales were very strong and she would not be terminated and yet three or four days after they made those assurances to her on march twelfth she was provided with the terminations package on march fifteenth it's just not consistent with what they were telling her  promised lo and i did discuss on february twentieth a number of items one was the completion of mr hewitt deposition which was never set by opposing counsel and we suggested tentative dates for her to come out to do the depositions of the principal defense witnesses i was in trial on march fifteenth and march through through the end of march however the jury went into  deliberations on march twenty third and on march nineteenth my office know that and this is in the record my office notified mr promise low that the depositions would be proceeding mr promised well faxed a letter to me the next day saying she did not have enough time to make  travel arrangements and she would not be appearing she had noticed from february first that i was going to take those depositions february twentieth we set those tentative date march nineteenth she advised my office while i was in trial that she was unable to make trouble of ancient depositions were not completed after that date because i did not receive dates from her when i could take her client's deposition instead she told my office and there was a declaration from my office indicating what she was we were advised that she would be willing to work with around my schedule as soon as trial was over to complete those depositions and she subsequently renewed it's very difficult to be in this position to know that i that i worked difficult very hard to get discovery from defendants and we were unable to do so but we would have i have this is the way the discovery would have helped me if i had been able to depose mr moulton and been able to establish his experience it would have negated their reason that mr hewitt had the least amount of experience and the least amount of sales mr moulton was not experienced and nor did he work into specific areas that mr hewitt worked on and that would help me on the termination  zimmerman we do not know whether or not mr zimmerman was actually disciplined his discipline form is not signed we have no way of knowing if it was ever put into his record there's no indication he refused to sign it he never he gave my client  very weak oral apology when he was asked to do so he never submitted in written apology as he was supposed to have done as discipline and the first time my client so anything in writing was that her deposition over two years later the prior incident in jackson would have helped my client because it would have shown whether or not she had an expectation that a hostile work environment there would have continued to king was a decision maker he was her direct supervisor at the jackson office and although mr moulton and zimmerman were not her direct supervisors they didn't impact the conditions of her employment on a daily  basis the comments are not strong remarks to my client they were made repeatedly they were made consistently and they all pertain to the fact that she was a woman with respect to the phone the leads in the meetings the reason why that's so significant is because mr morton went