vicki iran i would like to reserve two minutes for rebuttal police i would like to start out with a discussion of pretext which has become a key issue in this case as this court has noticed pre is essentially a common sense inquiry did the employer fire the employee for the stated reason or not hear tycho's stated reason for terminating the mist iran is her allege serious behavioral issues if a jury question i'm sorry to interrupt you right your voice a little bit i can pretty much hear you but i'm not sure you could be heard throughout the courtroom pretty  absolutely thank you judge so if mishear and if a jury question exists after as to miss iran's exist as to pretext neither ms iran's sex discrimination or public policy wrongful discharge claim should have been dismissed i want to bullet point some of the evidence of pretext in this case question sort of in the broader context the claim correct or incorrect from tycho is that she had relationship problems she didn't get along with people who were essentially this she dispute that she disputes it in large part she'd agree is that she could have improved her communication skills she admits she essentially fell on her sword in dealing with her supervisor who was giving her so much pushback and difficulty and she said yes i'm going to try to improve but the evidence really belies that any of these were serious behavioral issues as opposed to yes a lot of complaints from her coworkers about her attitude and those things right well the only complaints your honor came from these male sales managers who were the very same people that were giving her pushback but the but the point is there are these complaints right well yes and no they're vague they're not defined nobody ever counseled my client about them and she disputes that they were serious she said i could i could improve my communication yes her employer thought they were here because she'd been put on a performance well actually her let's look at her performance reviews that's how i was going to start out talking about pretexts twenty thirteen absolutely adequate perfect scores on both performance and behavioral objectives from two different supervisor she was rated at tyco standards this includes behavior this happen first with her original supervisor a director level a person mischer order and recall mishra order said to her gave her meets standards on every every facet and she told her and this is a line here's the admission some of the sales managers have complained about you but i don't think this is valid if we were men we'd be viewed as go getters and not difficult just terminations terminations decision is based on subjective criteria your teamwork behaviors attitude communication style this court has counseled that those types of decisions have to be viewed with s suspicion because subject a little when you mix to them hard me it's a little different when she admits to them but she said i can compete i can improve my communication style and she worked on that and let me move to the pip because  s you raised it she was put on the pip for alleged behavioral issues this was an eight week pep week after week after week the paperwork says there have been no there have been no complaints about plaintiff there's this is the same language the identical language week after week after week for eight weeks so the company essentially admits you had a perfect record on behaviors during this  what did tyco do take oh extended the pep for two more weeks solicited complaints about her and complaints while tyco denies soliciting complaints that's their terminology not mine but i don't understand about that i really two questions all ask you as far as the extension of this it seems at least it seems pretty clear that it got extended be either because it was the holidays or somebody was gone so they the big eight so they extended it two more weeks i didn't see anything that was sinister about that but the second part of the question is i don't understand why if you're out of here for bad behavior asking the people that you work with her supervisor was going to be in india for a good portion of the pep it was set for eight weeks it wasn't extended because somebody was gone the timeframe was determined in advance and then they extended it so she was judged on during these eight weeks and performance the pip document said no conflicts well there were no conflicts so her record was perfect as i said as a behaviors so then there's e mails going back and forth between r and mr alva saying well we need to solicit complaints it doesn't say let's look at feedback good bad or indifferent so no one complained about her during these eight weeks and as she was you know in danger of  to establishing her employer committed a serious error of judgement but it really doesn't go to the gender clause ok well let me discuss the gender claim because i think there overwhelming evidence from which a jury could decide that her gender was a factor we've already talked about mishra orders admissions if we were men we'd be perceived as go getters also there's no less than five other men at the company that discuss observed and discussed with mr iran this double standard including a manager by the name of john hall there telling her why does he treat you differently than all the men in the department the difference in treatment included excluding her from meetings  these are meetings bearing on her product lines she's responsible for knowing what's the price instead the men the sales managers with mr alpha are meeting behind closed doors excluding her making decisions of failing to case ok well let me pick through some of the reason the way she was treated differently than any other man there were three men that reported to mr l and ms iran the only woman that reported to him they were all allowed to flex their time and come and go as they wanted mr iran was not she was not allowed to work from home and like the man he would change he occupied the sign position yet some of the they were all i think product managers they might have had slightly different comparables come in so you know the prototypical example would be someone had just the same interpersonal problems when i have the same thing and everything's the same except they fire the woman but not pip is faulty the terminations is faulty let me make another comment about the pip how can there be a share if the pic is for behavioral issues how can it be how can we view it as a share if  he admitted to these behavioral issues although i mean i understand he thinks they're not as bad as the company apparently now claims they were but as yet you earlier he admits to all right well here's one example it's our manager said we didn't make a decision to terminate mr iran until well into the pip or intel it was over there's actually a memo that says we plan to vicki to exit vicki for performance this is before she was ever put on a pip that's compelling evidence from which a jury could at least conclude minimally that it was a foregone conclusion that she was going to be fired me all of this may show that they are that they are they treated her harshly they treated her badly it was unfair son just the reverse manufactured but you gotta have something that takes her from the position with mr alva he didn't provide her support unlike her previous supervisor there's a whole she was just treated differently and like anyone else in the office now i don't have a smoking gun i don't have him making least sexist comments i can tell you he hired sixteen people in his career all men zero women and he was dismissive of her from day one and the record is very clear on that pricewaterhouse go to go back to one of the emails because you you rely upon it i think it's two maybe it's more e mails than the one you mentioned this morning was the one where they use the word complaints yes and it's what it specifically says as we need to gather specific examples of complaints the bullets under that that you haven't mentioned then describes it seems to me describes what that means and it says feedback from internal and external customers and feedback from teams so feedback could be negative in the form of a complaint or feedback could be positive so were they out gathering feedback or were they out gathering complaints both of those bullet points as you pointed out are s d under the complaints so they were looking for complaints the point is they had eight weeks to gather complaints there were zero complaints nothing was happening she was getting along with everyone beautifully and there's no evidence to the contrary so that's when the company decided we need to paper this file and get something in writing and if you look at the statement your view is at the end of a pip it's whatever the company has received this that counts and that they can't go back at the end of a pip and ask people the employee do you know they tell the company during the pip and people of course won't even know about th a cut off and you're home free no i think it's i don't agree with that i think it just raises the suspicion that this is not on the up and up if you have a perfect record on a pip and then at the very end they decide you know what we need to gather more information because no one complained so let's get some complaints and if you look at those complaints they're boilerplate they're vague in their by the very same mail sent sales managers for the most part that have a complaint been complaining about  pricing issues and not being allowed to dictate pricing so i'm out of time think this is just out of curiosity and that are you religious more interested if there were people that really liked her and thought she did a great job and they didn't solicit input from them and there was a group of people that didn't like her because she was abrasive or didn't like her was because she was a woman or whatever reason and they only solicited them then your argument would make a lot of sons but is there any evidence in the record that when they gathered this these specific examples of complaints they did they went only to the legacies that she thinks were up to get you out or they went only to the legacies that were a problem there was an unsolicited complaint that someone on her behalf forwarded and i've attached it saying how great she spam and i've got depth testimony from other coworkers so then your argument the argument should be when it says get feedback from internal was sixty degrees and rainy and it's nice and sunny here in cincinnati so it's a nice break from the weather and thank you for listening to our oral argument today that may or may please the court even taking plans first of what happened is true our trial judge was right and find the plainest evidence fall short of the mark and therefore summary judgment should have complained that the workforce workplace was difficult for her full of conflict because she did not get along with her coworkers and they did not go along with use that she did fine in the pip and that he actually got the message and she can form what's wrong with it i think that's an accurate the refers tweak of of the pip document reflects that there was a major conflict with regard to a sales  meeting and that happened the very first week of the pip afterwards there were no other people who came forward with complaints but that's not the only thing that the company was relying upon by the way  would normally lead to determination it seems that would lead to a conclusion that the employee indeed was could poor me her behavior to what the company back expected of her it just does that i mean it the inference that she was still a problem in the workplace does the same supported by the pip doctor but not in this case your honor and the reason is is that these problems were longstanding problems the round up you know i was to just not fire her earlier i mean if you're going to put them on it i do found on the people you would expect that that means they're going to keep their job not that they're going to lose it behavior concerns noted on the tip after the very first week this is the right around the very understand end of november early december and the point of the extension was that look the next rest of december there was a lot of activity and  so can you answer the question the question as i understand is is that if she was doing fine for a couple of weeks why did they go out and look for complaints in the reason why i didn't mention that i just said if you put somebody on a performance improvement program and poor and i do find out it with the possible exception of the first week you don't expect that then to result in terminations you expect it to i don't think so because the key key client group for this position is the sales organization is the sales organization it's in the very same office as she is is the sales organization for complaining for a long period of time a plaintiff and her supervisor had noted that procedural point or that's not the norm the testimony is that sometimes they put people on a pip and sometimes do that they do not sometimes they just fire her act one year earlier mr alba had fired a male employee on her performance during that period or her entire career mr alva verbal e sought feedback as testimony was that he was asking for comments about her performance and i don't recall whether he narrowed it to that one particular time or not but back to the question of your being asked if they didn't like or for whatever reason and you asked them at the end of the pip whether they how he was doing if you don't ask them about how he did during the pip what's the point of the if they simply repeat her failures prior to the pip the point of that being to correct those then it seems to feed in  look for that in the record it's in the comments from the sales staff that was received a response to the solicitation for feedback i thought i haven't looked for that yet the actual responses to the feedback are in the record yes ask you what page there are i would want to know what form we would fathom in the record well there's two spots one of the sales leaders was testified extensively in deposition about the feedback and then number two i believe that they were exhibits  about the district court's decision to exclude this statement from miss roeder i mean there's a rule wait a while in the mean wasn't she in a position where this was in the scope for authority and so you know it's a statement of a party opponent room way to one i don't take on that i think there's another reason why i should be excluded in addition to the statement by the trial judge which i think is correct the other reason is that at deposition of point of i extensively asked her for all evidence all facts all information to support her claims that discrimination was a reason for terminations and not once did she mention the statement by schroeder it's now the cornerstone of her brief in a comes in after deposition  and i believe ickes sensibly asked her for all evidence it was not provided we close the loop on that and here now we have something she brings up the last minute and that's an additional reason why i do not think it's relevant well the only rule i'm aware was fairly clear we also asked right i asked her what was discussed with possible the deposition that focused on what was going on at the time of the firing and this remark was two years earlier so that makes it less relevant  but still still relevant i don't know why it's not relevant well the other reason why it's not relevant as i think it's really critical here which is plaintiff has admitted both in her appeal brief and a deposition that the legacy is that she began to identify play it as a problem after they after plant refused to allow them to dictate prices i mean that's a clear admission in my mind that that all the problems she's with sales are associated with business issues and not associate all with her gender in any way shape or form and on top of that she does admit her deposition that the only person discriminating against her was was was her supervisor mr alba and that the sales folks treated both men and women harshly not just women so the focus upon the somehow that the sales folks were there their input by the way those men and women in the sales team whose input was very negative towards pla is somehow tainted by discrimination just doesn't add up and it's really also important to note that mr alva terminated one other person during this timeframe and that was a year earlier he terminated a male coworker of same position as mr bailey and mr bailey in the same position was rated meets performance criteria and below expectations and behaviors the testimony as the plaintiff brought in mr miss the plane that mr other brought in the over mr bailey and as a result mr bailey was terminated mr bailey did not receive a pep he was simply terminated by the company one year later during the entire year mr although works with plans to try to improve her performance by  he were up he wanted her to succeed and i think it just really dispels any idea that there was gender discrimination going on here he spent an entire year investing in spring type were what were bailey's problems again that led to the firing bailey had a review in two but it sounds like you just the reviewers it properly up there nic there is an affidavit attached to the review but it does sound to me like the record shows that billy's problems were worse than the plainest problems does testify when asked about bailey that he had performance problems and behavior problems that's two two is worse than one right well the record i think the doctor speaks for itself at that moment there's not a full airing at that temp is the just i'm not sure which way it cuts you know but it does make sense that we might be the one that's fired without a pip and that she would get warned have the pit i mean that's all that's going on in my head i'm just trying to make sure i'm understanding it well the review for both was meets expectations for performance and below expectations for behaviors gear i was moved up to meets for both and so yes there were concerns about his performance but he was at meets was mistaken and that conclusion the other reason why i think it's really relevant here is that point we point in our brief to douglas versus even corporation and the requirement of of comparability is something that's been developed to address pretax for plaintive to prove that there perhaps gender was at work i don't believe that same standard really should apply when plant one defender is pointing out that hey look we've treated other people who are you know pretty much the same as thank you the contention that during the first week of the pip there were some sort of behavioral issues this is what the pip documented there have been no concerns expressed by any team member that he needs to ensure this is maintained going forward that's what it said mr l the admitted at his deposition that at the end of the original pip this eight week pip there were really no issues because he had no issues one other point pretext as far as the feedback solicited there there was a feedback packet that was put together part of this package included e mails going back two years authored by affidavit through counsel in this case she had every opportunity to refute these gender based comments attributed to her by my client in my client's declaration she didn't refute any of that so that's uncontested one other point about mr l in his treatment and respect or lack thereof for women and this is in the record he was set up in a meeting with a high level finance director former finance director at tyco a female presumably she knew a little bit about accounting practices a discussion a rose about some calculations he was presenting in she asked him to clarify it and he blurted out in this meeting of all these high level executives it's just stupid math just do the stupid math that is an example how of mr elvis treatment toward women including high ranking women in the workplace but roeder sure i don't want you to think i'm making a big deal of this whether you didn't did or didn't take her deposition i don't think is dispositive on that in this ability question one way or the other i'm just curious why didn't you take her orders deposition when you seem to be relying upon older is i think she's not a state that's not prohibitive i could have brought her in but she still with the company judge i find it very difficult to have high level current employees come in and say oh yes mission order is via her declaration saying things completely at odds with what she said at the time i want to just briefly if i could address a passage from pricewaterhouse which is i think very apt in this case you know this is a seminal gender aggressiveness in women but whose bethesda's whose position requires those traits this was a very high demanding difficult job my client had she had to coordinate all kinds of members but she wasn't a