when mr ray shales was terminated from cingular in two thousand and five as a result of the reduction in force when cingular bought out and merged with a t n t he was the highest producing indirect account executive in of the individuals who were from cingular who retained their jobs yes three of them were white males one was a white female and i correct about the yes or no two of them were white males out of the water and that was the problem with this case mr ray shales had the most seniority then his other women in the three white coworkers he had never been disciplined ever he want to ton of local and national awards for singular including the highest awards and he had an excellent reputation among his peers and agents and his employee performance review for the prior year two thousand and three was higher than his three white collar workers and in the ratios when it was in a sales position in a multi billion dollar corporation sales when one is a high producer in this type of industry as he was people are typically not  these companies absent some other extraordinary circumstances and anthony resells case that something was racial discrimination he was told by deal's earner that day fine day fine was the big boss had it out for him that about a year prior to his being let go mr a shales what really worried about it he was on his game he was sharp he wasn't he knew he did his job so he wasn't that worried about it at the time and who  number of errors rather that you alleged in the record one concern that your client had was that the court relied heavily on the statement of facts this they have a document from or evidence from cingular that was fairly straight forward that ultimate was a response to that which was in a different posture but what is that what is the genuine issue of fact affidavits of two of his witnesses one being near bill jones and one being michael johnson and i might have their last name mixed up in the giants and the reason that the court stated that they didn't want to rely on mirabelle jones is because she was hispanic and b and because she was hispanic and she claimed she was a spanish and puerto rican and because she was hispanic and the they hired an hispanic from eighty until the court reasoned that well they find couldn't have discriminated against miss mirabelle jones because an individual from eighteen to leave was fired and that's not that just blew my mind in terms of race and nationality a puerto rican can be black a puerto rican can be white and hispanic be white from peru or from somewhere else and for the court to say something so racially insensitive as because someone they find hired a hispanic that the when there is an issue of credibility that the court does not have the authority to weigh the credibility and what they did was they just threw him out they said all of michael jones or michael johnson and miracle jones they could not have been telling the truth and that is not the purview of the district court that is the purview of the jury and summary judgment should not have been granted because they did not have the authority to weigh that evidence when there is conflicting facts as it was in this particular situation there was also a discovery issue in this situation the dissent regarding the discovery cut ratios we were not permitted to complete our discovery there was no trial date set ratio's had never previously asked for an extension of the discovery time it was abuse is because when when the case when i read the case law most of the case the majority of the cases a trial date had already been set in this situation no trial date had already been set the discovery was already sent and the court and i don't mean this sound disrespectful but this court obviously was in no hurry to get this case off their duffs because they took almost two years to rule on the summ judgment motion i personally have never seen that in addition i took almost no they took thirteen months to rule on the motion to dismiss so my client is waiting almost two years for summary judgment first two thousand and ten and rachelle service single was counseled written discovery requests for the first time on the cover of letter dated january twenty eighth two thousand and ten just you know where the former employer employee how it failed to do so any relevant and miscible evidence that showed even tended to show that his former employer seen him out on account of his race and failed to do so any relevant and missile at that would  given a test that when you agree will subject of the river the test that was administered to all of the candidates i believe that one lad candidates though there was a what raided each was rated from scores from one to five year opponents scored respectively two into the categories and three in the third right combining out with his two thousand and four performance evaluation which was the second component of the ref process and  the position yet he was the only singular candidate who did not survive the riff of those candidates is that right that's correct he was also the only african american with that right that's correct as this court simply has to look at the this forcing their peers we submit that's not the case you have to look at all nine all nine of the compares and secondly you're touching on he's a team percentage relative to a singular peers and  practical matter because if a company is going to discriminate they usually don't signal it well in my experience it's been sixteen years old a different court is that they they they they engage in all levels of so i recall there in the record there is some indication that mr hart says he was i think he was doing initial assessment of yes who should be retained who should not indicated that mr fein the decision maker may have had it in for cases are there a lot of cases on the some talk about like an isolated comment or a few isolated comments but here the may be sufficient number of comments arguably to be more than just that isolated one stray back to there's just an absence of the record so we're talking we're talking about all nine in or at the county executives and we had evidence to show that in fact appellants attain a percentage which again was not referencing off the restaurants s was the highest among them all those in the light most favorable to the plaintive can you explain the basis for that statement and also point out which inference of the court took into account that the  court construed in the light most favorable to the play that and then i want you to address counsel's argument that the court at the summary judgment level impermissibly weighed the evidence which is the well when in fact the courts function there with simply to determine whether they're with a genuine issue of material that it's actually not your honor that the extent that a properly in a moving party brings forward a properly supported fact of record that unless it's fair to respond ensure every inference in favor of appellant for example even accepting your argument that somehow the four singular peers were the sole compares which in the context of risk any time there's a merger that makes no sense i'm as far reaching consequences that they have to be similarly situated if not for anything else they would consider for the same position but even taking that to face value which was an allegation raised by appellate judge mccarthy mccarthy pointed out that they failed to establish upon a face a case of racial second point would be that though the vast majority simply wasn't relevant to the issue on appeal their separate experiences at cingular wireless has no bearing on whether or not the people in this instance was discriminate on the count of race and when you rankings which are developed in apple these brief that were signed to all the indirect account executives it was based on his evaluation which mr fein accepted wholeheartedly in the record bears that that's how the ultimate missed there's nothing to suggest that mr finds absence for intervening as you suggest he could of over over rule he could have done a lot of things there's nothing that's developed in the record that suggest that his lack of intervening was because of a racial an racial animus towards appellant then why wouldn't he would have been extensive it stands to reason he would have an extensive record of discipline of various conduct which as you said you know previously judged that would sort of have the hallmarks perhaps of there being racial the the the tast the subjective component of the process what were the the the employment outcomes or that the criteria results creates customer loyalty and you sound judgment those are the three after you process was conducted each candidate was rated on that criteria and in effect they were trying to attain at that time sort of who would be the best in your account executive going for demonstrated that the best qualities to it to to grow similar products in that particular field and ask again to do the objective versus subjective question performance evaluation in love itself i suppose is is a subjective different record perhaps that's a that's that's a valid consideration on this record and the absence of of a record which is developed by appellant there's simply no basis to draw that inference and you think that on the basis of this record there is no opposing counsel ended by saying that my client did not demonstrate the fourth element but there is extensive case law including manzer in chin versus dow that's mans a versus diamond shamrock which and the case that we have here we police must not lose sight of the fact that this is a sales position this is not an attorney this is not a doctor this is a person in sales and what matters in sales is the numbers and my client was dynamic he was the best of the best is miss harris is that reflected in the record yes it is your honor and let me explain how it is like  just like in a lot of big companies you're able to see what everyone else is doing the numbers are there you go on the computer and you see what everybody else is going and that is what they did these people are  are not necessarily in the position i did not have the responsibility of providing that documentation in the two thousand and three performance reviews which everyone  was supplied every we had everyone's my client was the number one producing because it tell it tell you about their quotas and about their percentages so it was a stablished like that so yeah it was a step but you know present evidence that he was singled out for an impermissible reason as i understand his argument and you want to dress that again maybe yes and i apologize if i didn't properly address the plaintiffs may also demonstrate pretext by offering evidence which challenges the reasonable miss of the employer's decision to extend such inquiries that shits life in other words he was  and that's what the case lost states very specifically and the record also shows as we look at all the evidence that you've mentioned up until now that that was singled out here not given a chance to work in this reorganized company for and then permissible reason which he argues is his race yes and and that's supported by these  better producing but for a racist false day fine who of the stan council has lost to say that you know one kinda makes statements and it not necessarily be racist but my client took it as racist they were in a restaurant and he sees a black man with a white woman and he has a problem with these are seen as show why they feel that he was racist in terms of them not being promoted and they both actually quit because of they fine and the racial animus that they felt that he was exhibiting and they there was a glass ceiling and he would not  and you may call the next case