boyer on behalf of plaintiff patricia samphan counters i'd like to reserve three minutes of my time for rebuttal please watch the clock honors the district court's order granting summary judgment in favor of wells fargo as to plaintiff claim for disability discrimination deprive plaintiff of any chance of having to be unable to present her case to a jury which was in their evidence and inferences there from collectively and construed in the light most favorable to miss sampson as opposed to her employer wells fargo the evidence is such that a reasonable juror could conclude that sampson was wrongfully terminated and that the supposedly judgment business reason was mere pretext i'd like to focus on the x issue is that is the primary issue before this court runner's within days of plaintiff informing her employer that her doctor has placed her on medical disability leave wells fargo decided to terminate plaintiff they argue it has nothing to do with disability but the evidence and inferences tell a different story one the documents themselves that we have revealed that plaintiff e mailed her supervisor jason g on monday october twenty seventh saying i'm staying home today and not feeling well here's an exchange about her seeing her doctor she informs him as well as to other managers that are copied on the e mail on tuesday october twenty eighth saying i'm going to be taking a medical disability leave until december first then we know the very next day within twenty four hours there is an out loud outlook invite an invite for a meeting with when supervisor sweeny subject matter being samson's displacement and the subject stating quote i want to run an idea by you regarding patricia sampson within days of that outlook there was a formal email outlining a plan to eliminate her position and terminate her and approval of that plan based on these documents there is a connection at least one that a juror co between her or her disability and the decision to terminate her and i have taken the position that instead there was a discussion in october thirteenth and another one on october twenty first predating when quinn knew of plaint disability as to the reason to terminate her but the evidence reveals collectively that that there's there's holes in that story there are issues with that story there is one we have no documents to support that there was this conversation on ten thirteen between quinn and pham nor on ten twenty one between sweeney and when and instead when you actually look at the documents we do have th could be found to establish that the prior conversations the october thirteenth between when and famine the october twenty first between going in seems and that they didn't happen or that they didn't or that they just didn't matters i think that it's just to say it was their evidence or are you saying that you infer that that's not what they said so i don't believe i if you look at the evidence we do hop which are the heart emails and the outlook invitation the emails that went out the formal e mail that went out on october thirtieth i believe from when to sweeney asking for permission to do this doesn't reference whether or not can we still effectuate our plan that we've already discussed now that she's on medical leave right so we have the testimony of the parties i think judge clearly asked was are you saying we should infer that the jury infer that that ever happened or because we have the testimony of the various parties and there is evidence just like the e mails or evidence it is and i think that this is when we have to view the issue in the context as this court the ninth circuit has repeatedly said when you have an employment discrimination claim and you're at the element of pretext inferences the intent is very hard to prove especially in a discrimination case so any inferences from the evidence must be resolved in front favor of the employer at this point as i really could find otherwise so to there's an e mail that says if our business plan works only if i have a committee the hire of pm to if unable to hire a pm to we will continue to work with patricia  that indicate after she went out on medical leave that they were willing to continue to work with her if they couldn't get their pm to plan and i think the opposite inference can be drawn is that once she says she's going on medical leave there now raising some issue with her performance which has never been raised before so it almost looks like more of a cover up or more of a reason why they're now deciding to terminate her when they're saying we'll work with her as to performance issues when there has never been any record of performance issues with patricia and i think that that inspired the fact that you know she will be ever so that's a period of time i mean that isn't that a reasonable interpretation of that well i think yes and i think that i think an inference from that there's two inference that could flow from that one is that they will continue to work with her suggesting that they wouldn't fire her for her disability which i think would be in favor of wells fargo and then there's an inference that since they've never had any discussions about for her job performance and they themselves and the district court highlighted this in its order at the excerpts of record page eighteen that on page seventeen the plan of job performance played no role in this decision to terminate or this restructuring and so i think the equal inference and again viewing this in the context that we're supposed to look at this evidence is that the inference is there all of a sudden talking about her performance issues when this is never been this a safe time for rebuttal yes definitely i was coming and they needed to be their original plan had been hire a second pm or so basically the head more were coming in they never change there's no evidence that the work actually went down there was an impediment that was risen in the beginning of october that a new head john adams that he put a temporary hold indefinite hold on increasing number of entities full time equivalent so they needed to find some way to be there's not they're not disagreeing with each other there's not some other witness who said it didn't happen it's under rebutted testimony that they had a discussion with thirtieth about an idea originally for two and then of how to deal with this by hiring  more qualified person in the sense of that sort of like a better performer like you've got to instead of a three under review but someone who is able to handle more complex transactions a higher wage job one hundred twenty five thousand versus one hundred so you s how somebody supposed how many how is somebody supposed to rebut testimony from people that work for one side of the case and i mean unless they bug the room or something like that how are they supposed to rebut it isn't the way you were abundant by showing that there's other circumstantial nations even though she was out of leave because h r had approved it and again there's no question that there were cover sessions with h r and there is by the way so you saw there's no question i mean i just seems to me a thank you all of the witnesses  on one side of the case and he say there's no question you're basically saying we got to believe everything they say because nobody says the opposite i mean isn't the point here that when when rates the e mail on the twenty ninth and says let me run an idea by you that would suggest to a reasonable person that this is the first time they're talking about it and he didn't really talk about it eight days before which is what he testified he said i want to run a new concept that we've never discussed before but idea it's an email subject line not a treatise well no other but i would say if you put the other evidence around it as well the other evidence is there was an increase in even staffing that actually interviewed back in july had hired somebody a plan to hire somebody for this position that got put on hold that they had this continued they did in fact replace her with the pm to do everything is it consistent to the story that this is what we were planning to do and this is what we did after the fact that when they five when they fired when told her that it was all performance really didn't say anything about the reorganization so there's an inconsistency changed she was performing at a three level which is cup i don't think she got fired for being incompetent but she was a competent level three pm one when they needed to increase their efficiency and bring it into which is exactly what they business organization they have a business plan written they have you know sent up to a higher level person things just don't work that fast in the business world the business plan is the october thirtieth e mail the one that was sent that was fair for a j argument to make to it to a jury but when they when the inferences are all supposed to be drawn in the way half of from you that's not really what we're talking about things your fact that there's not something that was you know a specific memo that we'll continue to work with patricia an opposing counsel says some of the at actually shows that they were inventing a performance issue it seems to say that they'll continue to work with patricia seventh i believe it was you ok but you know the case that they were lying about this notion that well you know the fact that there is no document that says it's going to happen is evidence of  discrimination and it was a very different case the begin its case involved for there was a large company wide hiring freeze and there was no evidence of the need for the freeze there's no evidence ever been discussion of the freeze and there was contradictions of whether there really was a freeze here there's no contradiction whatsoever that they had in me that they changed the staffing that they eliminated her position and they brought in a higher level person and all they really have is timing and this one word idea and i just don't think that is enough to president all of this was motivated this incredibly complex five six people all lying with no evidence of her lying all happened you know following from getting e mail the twenty last triggered that that was the same day that they had their conversation about this and on the twenty first of this counter show that he was out of his office out of his home i mean he had to move out for some issue in that role remember that's when he had his first conversation mr sweeney so again there are some documents and usually they say to avoid summary judgment you have to show contradictions implausibilities dissembling there's none of that all the witnesses have testified and they've been cross  examined that things happen the way they did and other was i think this is just really accusation which shouldn't be  and i want to pick up on the first thing counsel mentioned was which is the actual justification this idea that they're eliminating plaintiff and this other pm one position and going to hire a pm two to save the company seventy five thousand dollars the problem with this justification is that as counsel explained if that was approved in july two thousand and fourteen they interviewed candidates they found a candidate quinn said he found a candidate and proposed it late september and the week of october said this is on the record at page four zero eight when it was told he asked for permission to hire he was told at the time quote i was told that we weren't allowed to fill the position and that i needed to cancel it he also testified quote i'm not sure whether it had been formally cancelled in the system but my understanding was that i could not hire that position and that's of the record of eighty one eighty two so at this time there is no second pm one position so the justification that they're going to fire plaintiffs and get rid of this opening for this pm one position to save the company money and hire a pm to doesn't make sense that they had the opposing counsel says they did in fact hire a pm to is that correct you know the district court ruled that evidence inadmissible and there was nothing in the paper saying that should be admissible on appeal so it's my understanding that that was not a consideration by the court should be so what i want to focus on is just the same idea that that they keep saying oh this is all for this specific reason it had nothing actually to do with performance or had they didn't get approval because if they send a business plan i thought they got approval the day adams approved the business plan november first i was to replace the pm one with a pm two is that correct that's correct and that all happened after they knew of the decision that plaintiff was leaving for disability so what do we do about the language thing that if we don't get the pm to then we'll continue working with her after she claims after she's out on disability be with the way a reasonable juror control email is to say continuing to work with if i don't get a pm to i will continue to work with miss sampson suggest that this is problematic the you and that with my last few seconds i just want to hear it you're out of time so please just wrap it i just want to say collectively when you look at the temporal the connection in time when you look at the actual documents that we have that tell a story of a determination right after describing the medical leave when you look at the lack of documents supporting their argument and you look at the lack of a justification this tells a story that the jury needs to be able to resolve